Walters v. Cooper

STEELMAN, Judge,

dissenting.

The majority’s analysis is based upon case law construing provisions of Chapter 20 of the General Statutes, which deals with motor vehicles. This is a case involving sex offender registration under Article 27A of Chapter 14 of the General Statutes. The purpose of this statute was set forth in N.C. Gen. Stat. § 14-208.5 :

*172 The General Assembly recognizes that sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is of paramount governmental interest.

N.C. Gen. Stat. § 14-208.5 (2011).

The majority acknowledges that the crime to which defendant pled guilty was a “sexually violent offense” under the provisions of N.C. Gen. Stat. § 14-208.6 (5). Because a final conviction for a sexually violent offense is a “reportable conviction” under N.C. Gen. Stat. § 14-208.6 (4) (a), defendant was required to register as a sex offender. N.C. Gen. Stat. § 14-208.7 (a) (2011).

The only issue presented in this case is whether the judgment entered in the underlying criminal case was a “final conviction” as required by N.C. Gen. Stat. § 14-208.6 (4)(a). I would look for resolution of this question to the provisions of Chapter 15A of the General Statutes, dealing with criminal procedure, rather than to the motor vehicle laws.

N.C. Gen. Stat. § 15A-101(4a) defines the term “entry of judgment” as follows: “Judgment is entered when sentence is pronounced. Prayer for judgment continued upon payment of costs, without more, does not constitute the entry of judgment.” N.C. Gen. Stat. § 15A-101(4a) (2011).

As acknowledged by the majority, the prayer for judgment entered in the underlying criminal case was not a “[p]rayer for judgment continued upon payment of costs, without more[.]” N.C. Gen. Stat. § 15A-101(4a). The trial court placed several explicit conditions upon the entry of the prayer for judgment continued.

In State v. Brown, 110 N.C. App. 658 , 430 S.E.2d 433 (1993), this Court set forth the circumstances where the entry of a prayer for judgment continued constituted “entry of judgment.”

“When the prayer for judgment is continued there is no judgment-only a motion or prayer by the prosecuting officer for judgment.” Griffin, 246 N.C. at 683, 100 S.E.2d at 51. When, however, the trial judge imposes conditions “amounting to punishment” on the continuation of the entry of judgment, the judgment loses its character as a PJC and becomes a final judgment. Id. Conditions “amounting to punishment” include fines and imprisonment. Id. *173 Conditions not “amounting to punishment” include “requirements to obey the law,” State v. Cheek, 31 N.C. App. 379, 382 , 229 S.E.2d 227, 228 (1976), and a requirement to pay the costs of court. State v. Crook, 115 N.C. 760, 764 (1894); N.C.G.S. § 15A-101(4a) (1988) (“[p]rayer for judgment continued upon payment of costs, without more, does not constitute the entry of judgment”).

State v. Brown, 110 N.C. App. at 659-60 , 430 S.E.2d at 434 .

In Brown , we held that aprayer for judgment continued upon defendant continuing with psychiatric treatment “went beyond defendant’s obligation to obey the law, and was thus punishment.” Id. at 660 , 430 S.E.2d at 434 . We further noted that violation of this condition “subjected the defendant to criminal contempt of court[.]” Id.

In the instant case, the entry of the prayer for judgment continued was expressly conditioned upon defendant not having any contact or communication with the victim; defendant not being on the victim’s property; and defendant not having any contact with any member of the victim’s immediate family. This condition amounts to more than a mere requirement that defendant “obey the law.” It places fundamental restrictions upon his rights of association and restrains him from going upon the victim’s property. These conditions constitute “punishment” for which defendant could be subject to contempt. Under the rationale of Brown and N.C. Gen. Stat. 15A-101(4a), the judgment entered upon the defendant’s guilty plea to the charge of sexual battery was a “final conviction” as required by N.C. Gen. Stat. § 14-208.6 (4)(a).

The majority relies upon the following sentence from the State’s brief to support its assertion that the State acknowledged that the conditions imposed were not punishment:

Plaintiff, whose guilt for the registerable offense of sexual battery has been definitively established in a court of law, should not be permitted to evade the civil regulatory scheme of the Registration Programs, the purpose of which is to protect the general public, merely because no punitive sentence was pronounced against him.

First, the State’s argument refers to “no punitive sentence.” In fact, the judgment did not impose a sentence upon defendant. This passage does not refer to whether the conditions imposed upon the prayer for judgment constituted punishment. Second, whether a condition of a prayer for judgment continued constituted “punishment” is a question *174 of law for the courts to determine. It is not a question of fact as to which the parties, on appeal, can stipulate. See State v. Rogers, 275 N.C. 411, 421 , 168 S.E.2d 345, 350 (1969) (holding that “[w]hat constitutes cruel and unusual punishment is a question of law”).

I would affirm the order of the learned trial judge.