Heard in the Court of Appeals December 9, 2013.
Forsyth County. No. 02 CRS 60408.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.
Mark L. Hayes for defendant-appellant.
McCULLOUGH, Judge. Chief JUDGE MARTIN and JUDGE ERVIN concur.
Appeal by defendant from order entered 14 February 2013 nunc pro tunc to 30 September 2011 by Judge A. Robinson Hassell in Forsyth County Superior Court. Heard in the Court of Appeals 9 December 2013.
Defendant Michael Talbert appeals an order by the trial court requiring him to enroll in lifetime satellite-based monitoring after finding that defendant had committed an aggravated offense within the meaning of N.C. Gen. Stat. § 14-208.6(1a). For the reasons discussed herein, we affirm the trial court's order.
On 12 September 2002, an indictment was returned charging defendant with one count of second-degree rape in violation of N.C. Gen. Stat. § 14-27.3(a). Defendant was also charged with one count of second-degree sexual offense in violation of N.C. Gen. Stat. § 14-27.5(a). Both indictments alleged that the victim was physically helpless at the time of the incident.
On 14 February 2003, a jury found defendant guilty of both charges. Defendant was sentenced to an active term of fifty-one (51) to seventy-one (71) months imprisonment. Defendant was also required to register as a sex offender upon release.
Defendant appealed to our Court. Our Court found no error in the trial court's proceedings in State v. Talbert, (unpublished).
On 5 August 2011, defendant was sent a notice from the North Carolina Department of Correction (" DOC" ), informing him that he was to appear for a satellite-based monitoring (" SBM" ) determination hearing scheduled for 29 August 2011 in Forsyth County Superior Court. DOC had made an initial determination that defendant had been convicted of an aggravated offense as defined in section 14-208.6(1a) of the North Carolina General Statutes, and thus, had met the criteria set out in section 14-208.40(a)(1) requiring enrollment in SBM for life.
Following the hearing, the trial court entered an order 6 July 2012 nunc pro tunc to 30 September 2011. The 6 July 2012 order made the following pertinent findings of fact:
2) In the State's indictment, the State alleged as to Count 2 specifically with regard to the second-degree rape and sex offense charges -- in Count 1 and Count 2 -- both allegations were with respect to the victim being, at the time, physically helpless. . . .
3) Upon conviction, the defendant appealed, and the case was heard in the Court of Appeals on February 4, 2004 whereupon it issued its opinion on May 4, 2004 finding no error with the trial court proceedings or with the sentencing.
4) A copy of the Court of Appeals' opinion was obtained in a duplication by microfilm of the court file upon which the Court takes judicial notice as being an accurate copy and within the bounds as maintained by the Clerk of Superior Court in Forsyth County. . . .
5) The Court further finds as a fact as set forth in the body of the appellate opinion . . . an account of the facts, the defendant's acknowledgement that he had sex with the victim and his acknowledgment that she had not consented, and his acknowledgement and admission that he removed the victim's pants and underwear while she ...