State v. Williams , 235 N.C. App. 201 ( 2014 )

NO. COA13-1280
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 06 CRS 221584, 221587
ROBERT LEROY WILLIAMS
Appeal by defendant from order entered 19 August 2013 by
Judge Robert C. Ervin in Mecklenburg County Superior Court.
Heard in the Court of Appeals 22 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph Finarelli, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender James R. Grant, for defendant-appellant.
BRYANT, Judge.
Because continuous monitoring as a result of defendant’s
participation in a satellite-based monitoring program does not
violate defendant’s substantive due process rights and because
the monitoring is rationally related to a legitimate
governmental purpose, we affirm the order of the trial court
imposing upon defendant enrollment in a satellite-based
monitoring program for his natural life.
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On 27 April 2007 in Mecklenburg County Superior Court,
defendant Robert Leroy Williams entered an Alford plea to two
counts of second-degree rape. The State dismissed one count of
first-degree sex offense, one count of first-degree kidnapping,
one count of second-degree kidnapping, and two counts of first-
degree rape. The trial court entered a consolidated judgment in
accordance with defendant’s plea and sentenced defendant to an
active term of 58 to 79 months.
On 27 April 2012, the State filed a motion to determine
whether defendant was required to enroll in the sex offender
satellite monitoring program. A satellite monitoring bring-back
hearing was held before the Honorable Robert C. Ervin on 19
August 2013 during the criminal session of Mecklenburg County
Superior Court.
During the hearing, the State presented the following
background for defendant’s second-degree rape conviction.
Defendant and his victim were neighbors. The victim had
previously rejected defendant’s advances and request for a date.
Defendant invited the victim to his residence to watch a video.
Once inside, defendant extended a further invitation to view
hats in his bedroom. In his bedroom, defendant kissed the
victim, and the victim attempted to pull away. Defendant then
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produced a knife and later a gun. Defendant forced the victim
to perform fellatio and engage in sexual intercourse. When
allowed to leave, the victim immediately reported the forced
sexual assault.
In an order entered 19 August 2013, the trial court made
judicial findings that defendant’s conviction for second-degree
rape was a reportable conviction as defined by G.S. 14-208.6(4)
and that his was an aggravated offense. Defendant was ordered
to enroll in satellite-based monitoring for the remainder of his
natural life. Defendant appeals.
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We first note that although defendant filed a written
notice of appeal from the order directing his enrollment in a
satellite-based monitoring program, defendant filed with this
Court a petition for writ of certiorari to allow review of the
trial court order, asserting that his written notice of appeal
was defective. Specifically, defendant states that his notice
of appeal fails to indicate to which court his appeal was to be
taken and that he served his notice on the State via email. For
the reasons stated herein, we determine defendant’s notice of
appeal is not fatally defective; therefore, we deny defendant’s
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petition for writ of certiorari and proceed to the merits of his
appeal.
Any party entitled by law to appeal
from a judgment or order rendered by a judge
in superior or district court in a civil
action or in a special proceeding may take
appeal by giving notice of appeal within the
time, in the manner, and with the effect
provided in the rules of appellate
procedure.
N.C. Gen. Stat. § 1-279.1 (2013). As to the content of the
notice of appeal, our Rules of Appellate Procedure state that
the notice “shall specify the party or parties taking the
appeal; shall designate the judgment or order from which appeal
is taken and the court to which appeal is taken . . . .” N.C.
R. App. P. 3(d) (2013).
“The ‘fairly inferred’ doctrine ensures that a violation of
Rule 3(d) results in dismissal only where the appellee is
prejudiced by the appellant's mistake.” Phelps Staffing, LLC v.
S.C. Phelps, Inc., 217 N.C. App. 403, 410, 720 S.E.2d 785, 791
(2011). In Phelps Staffing, the plaintiff failed to designate
within the notice of appeal the court to which the appeal was to
be taken.
Plaintiff's notice of appeal does not
designate any court as the proper venue for
its appeal. Plaintiff's error is a complete
omission of the content requirement as set
forth in Rule 3(d). However, this Court has
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liberally construed this requirement and has
specifically held that a plaintiff's failure
to designate this Court in its notice of
appeal is not fatal to the appeal where the
plaintiff's intent to appeal can be fairly
inferred and the defendants are not mislead
by the plaintiff's mistake.
Id. at 410, 720 S.E.2d at 791.
Here, the State’s response to defendant’s petition for writ
of certiorari does not indicate that it was misled by
defendant’s failure to indicate the court to which the appeal
was to be made. The State does not contest defendant’s right to
appeal and even suggests that despite the cited defects, this
Court may grant a writ of certiorari to review the matter.
As to the service of his notice of appeal upon the opposing
party, defendant acknowledges that he served his notice of
appeal on the State by email.
“The requirement of timely filing and service of notice of
appeal is jurisdictional . . . .” Smith v. Smith, 43 N.C. App.
338, 339, 258 S.E.2d 833, 835 (1979) (citation omitted).
However, a dissenting opinion adopted by our Supreme Court held
that “the service of the Notice of Appeal is a matter that may
be waived by the conduct of the parties.” Hale v. Afro-Am. Arts
Int'l, 110 N.C. App. 621, 625, 430 S.E.2d 457, 459 (Wynn, J.,
dissent), rev'd for the reasons stated in the dissenting
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opinion, 335 N.C. 231, 436 S.E.2d 588 (1993). The dissenting
opinion proposed that the service of the notice of appeal was
akin to the service of a complaint conferring personal
jurisdiction upon a trial court. “When the defendant has been
duly served with summons personally within the State, or has
accepted service or has voluntarily appeared in court,
jurisdiction over the person exists and the court may proceed to
render a personal judgment . . . .” Id. at 625, 430 S.E.2d at
460 (citation and quotations omitted). “[B]y analogy . . .
where the appellee failed, by motion or otherwise, to raise [an]
issue as to service of notice in either the trial court or in
this Court and has proceeded to file a brief arguing the merits
of the case, . . . [the appellee] has waived service of notice
[of appeal] . . . .” Id. at 626, 430 S.E.2d at 460.
Here, in its response to defendant’s petition, the State
acknowledges that defendant’s notice of appeal was served via
email but does not further contest the service. Furthermore,
the State filed a brief addressing the merits of defendant’s
arguments presented on appeal. Thus, the State has waived
service of notice of appeal. See id.Accordingly, as defendant’s intent to appeal can be fairly
inferred and the State provides no indication it was misled by
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the defendant's mistake, we do not dismiss defendant’s appeal on
the basis of a defect in the notice of appeal. See Phelps
Staffing, LLC, ___ N.C. App. at ___, 720 S.E.2d at 791. And,
as the State has waived service of the notice of appeal, see
Afro-Am. Arts Int'l, Inc., 110 N.C. App. at 625, 430 S.E.2d at
460 (Wynn, J., dissent), we deny defendant’s petition for writ
of certiorari and proceed to the merits of his appeal. See
Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C.
191, 197—98, 657 S.E.2d 361, 365 (2008) (“A jurisdictional
default . . . precludes the appellate court from acting in any
manner other than to dismiss the appeal. . . . [However,] [w]e
stress that a party's failure to comply with nonjurisdictional
rule requirements normally should not lead to dismissal of the
appeal.” (citations omitted)).
____________________________________
On appeal, defendant argues that the imposition of lifetime
satellite-based monitoring violates his substantive due process
rights by continuous government monitoring or in the
alternative, by failing to be rationally related to the purpose
of protecting the public from recidivism.
Defendant first argues that, as applied to him, North
Carolina General Statutes, section 14-208.40B(c), violates
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substantive due process by impermissibly infringing upon his
right to be free from government monitoring of his location when
monitoring is not narrowly tailored to the purpose of protecting
the public from recidivism, and lifetime monitoring was imposed
without consideration of defendant’s low risk for reoffending.
We disagree.
“An appellate court reviews conclusions of law pertaining
to a constitutional matter de novo.” State v. Bowditch, 364
N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (citation omitted).
Pursuant to the United States Constitution, “[n]o State
shall make or enforce any law which shall . . . deprive any
person of life, liberty, or property, without due process of law
. . . .” U.S. CONST., amend. XIV, ' 1. The North Carolina
Constitution provides that “[n]o person shall be . . . in any
manner deprived of his life, liberty, or property, but by the
law of the land.” N.C. CONST. art. I, § 19. Our Supreme Court
has held that “[t]he term ‘law of the land’ as used in Article
I, Section 19, of the Constitution of North Carolina, is
synonymous with ‘due process of law’ as used in the Fourteenth
Amendment to the Federal Constitution.” Rhyne v. K-Mart Corp.,
358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (citation and
quotations omitted).
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The Due Process Clause provides two types of protection –
substantive and procedural due process. See State v. Thompson,
349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998).
“Substantive due process” protection
prevents the government from engaging in
conduct that shocks the conscience, or
interferes with rights implicit in the
concept of ordered liberty. “Procedural due
process” protection ensures that when
government action depriving a person of
life, liberty, or property survives
substantive due process review, that action
is implemented in a fair manner.
Id.Our established method of substantive-due-
process analysis has two primary features:
First, we have regularly observed that the
Due Process Clause specially protects those
fundamental rights and liberties which are,
objectively, deeply rooted in this Nation's
history and tradition and implicit in the
concept of ordered liberty, such that
neither liberty nor justice would exist if
they were sacrificed. Second, we have
required in substantive-due-process cases a
careful description of the asserted
fundamental liberty interest.
Washington v. Glucksberg, 521 U.S. 702, 720—21, 138 L. Ed. 2d
772, 787—88 (1997) (citations and quotations omitted). “By
extending constitutional protection to an asserted right or
liberty interest, we, to a great extent, place the matter
outside the arena of public debate and legislative action. We
must therefore exercise the utmost care whenever we are asked to
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break new ground in this field.” Id. at 720, 138 L. Ed. 2d at
787 (citation and quotations omitted).
Defendant argues that General Statutes, section 14-
208.40B(c), the statute authorizing the court to compel
defendant’s enrollment in a lifetime satellite-based monitoring
(“SBM”) program, impermissibly infringes upon his fundamental
right to be free from continuous surveillance.
In support of his contention, defendant cites Justice
Alito’s concurrence in United States v. Jones, 565 U.S. ___, 181
L. Ed. 2d 911 (2012). The Jones Court considered whether a law
enforcement agency’s monitoring of a vehicle while on public
streets by benefit of an attached GPS locator amounted to a
search within the meaning of the Fourth Amendment. The majority
concluded that the agency had conducted a search, and because
the intrusion occurred in the absence of a valid warrant, it was
a violation of Fourth Amendment prohibitions against
unreasonable searches and seizures. In his concurrence, Justice
Alito proposed that, as opposed to short-term monitoring, long-
term GPS monitoring and cataloguing of a vehicle’s every
movement impinged upon society’s expectation of privacy. Id. at
___, 181 L. Ed. 2d at 934 (Alito, J., concurrence). We note
that as to the application of the Fourth Amendment in the
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context of SBM, our Court has declared United States v. Jones to
be inapposite. See State v. Jones, ___ N.C. App. ___, ___, 750
S.E.2d 883, 886 (2013) (citing State v. Martin, ___ N.C. App.
___, 735 S.E.2d 238 (2012) (holding SBM is not a violation of
the defendant’s Fourth Amendment right to be free from
unreasonable searches and seizures)).
We also note that in United States v. Jones, the Court was
analyzing an event that took place in the context of a law
enforcement agency’s investigation of narcotics trafficking.
The concerns articulated in Justice Alito’s concurrence are
distinguishable from the circumstance for which defendant seeks
our review: the continuous monitoring of a person who has been
convicted and sentenced for an aggravated offense, as defined by
section 14-208.6. See N.C. Gen. Stat. ' 14-208.6(1a) (2013)
(“‘Aggravated offense’ means any criminal offense that includes
either of the following: (i) engaging in a sexual act involving
vaginal, anal, or oral penetration with a victim of any age
through the use of force or the threat of serious violence; or
(ii) engaging in a sexual act involving vaginal, anal, or oral
penetration with a victim who is less than 12 years old.”).
Defendant’s participation in an SBM program following his
conviction for an aggravated offense – forcible rape – does not
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infringe upon any fundamental right. See Jones, ___ N.C. App.
___, 750 S.E.2d 883; Martin, ___ N.C. App. ___, 735 S.E.2d 238.
Defendant’s asserted “fundamental right to be free from
continuous government surveillance” is not one we have ever
recognized in the context of SBM. On the contrary, “an
imposition of restrictive measures on sex offenders adjudged to
be dangerous is a legitimate nonpunitive governmental objective
and has been historically so regarded.” State v. Bare, 197 N.C.
App. 461, 467, 677 S.E.2d 518, 524 (2009) (citation and
quotations omitted). Therefore, defendant cannot establish that
his participation in an SBM program infringes upon a fundamental
right. We overrule this portion of defendant’s substantive due
process argument.
However, defendant argues in the alternative that General
Statutes section 14-208.40B(c) as applied to him violates
substantive due process because it is not rationally related to
its purpose of protecting the public from recidivism. Defendant
contends that because section 14-208.40B(c) authorizes mandatory
lifetime participation without consideration of defendant’s risk
of reoffending, the statute is constitutionally unsound. We
disagree.
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“[U]nless legislation involves a suspect classification or
impinges upon fundamental personal rights, it is presumed
constitutional and need only be rationally related to a
legitimate state interest.” Huntington Prop., LLC v. Currituck
Cnty., 153 N.C. App. 218, 229, 569 S.E.2d 695, 703 (2002)
(citation and quotations omitted). “[T]he rational basis
standard . . . ‘merely’ requires that a regulation bear some
rational relationship to a conceivable legitimate interest of
government.” Bald Head Island, Ltd. v. Vill. of Bald Head
Island, 175 N.C. App. 543, 550, 624 S.E.2d 406, 410—11 (2006)
(citation and quotations omitted).
Defendant cites South Carolina v. Dykes, 744 S.E.2d 505(S.C. 2013), for the proposition that South Carolina’s SMB
statute was deemed unconstitutional to the extent that it
imposed upon the defendant lifetime SBM without (1) a
determination of her dangerousness prior to being enrolled or
(2) an opportunity for judicial review at a later date to
address the necessity of her remaining enrolled in the program.
The South Carolina Court held that “[i]n light of the [South
Carolina] General Assembly's stated purpose of protecting the
public from sex offenders and aiding law enforcement, we find
that the initial mandatory imposition of satellite monitoring
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for certain child-sex crimes satisfies the rational relationship
test.” Id. at 510. However, “[t]he complete absence of any
opportunity for judicial review to assess a risk of re-offending
. . . is arbitrary and cannot be deemed rationally related to
the legislature's stated purpose of protecting the public from
those with a high risk of re-offending.” Id. (citation
omitted).
Because our North Carolina statutory scheme provides for
both a determination of dangerousness prior to imposing
enrollment in a satellite-based monitoring program and the
possibility for review for later termination from satellite-
based monitoring, any analysis of Dykes, 744 S.E.2d 505, is
inapposite. We now look to relevant North Carolina General
Statutes regarding satellite-based monitoring.
Pursuant to section 14-208.40B(c), when an offender is
convicted of a reportable conviction as defined by G.S. 14-
208.6(4), the district attorney, representing the Division of
Adult Correction, shall schedule a hearing in superior court.
[In this hearing,] the court shall determine
if the offender falls into one of the
categories described in G.S. 14-208.40(a).
The court shall hold the hearing and make
findings of fact pursuant to G.S. 14-
208.40A.
If the court finds that (i) the offender has
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been classified as a sexually violent
predator pursuant to G.S. 14-208.20, (ii)
the offender is a recidivist, (iii) the
conviction offense was an aggravated
offense, or (iv) the conviction offense was
a violation of G.S. 14-27.2A or G.S. 14-
27.4A, the court shall order the offender to
enroll in satellite-based monitoring for
life.
N.C. Gen. Stat. § 14-208.40B(c).
Defendant does not contest that his was a “reportable
conviction” as defined by section 14-208.6(4). See id. § 14-
208.6(4)(a.) (“‘Reportable conviction’ means: ‘A final
conviction for an offense against a minor, a sexually violent
offense, or an attempt to commit any of those offenses unless
the conviction is for aiding and abetting.’”). Defendant also
does not challenge the trial court’s finding that his was an
aggravated offense. See id. ' 14-208.6(1a) (“‘Aggravated
offense’ means any criminal offense that includes either of the
following: (i) engaging in a sexual act involving vaginal, anal,
or oral penetration with a victim of any age through the use of
force or the threat of serious violence . . . .”). Defendant’s
argument is limited to a purported failure of the North Carolina
SBM scheme, as applied here, to assess defendant’s risk of
reoffending before imposing lifetime SBM and an inadequate
process for petitioning to be removed from SBM.
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In State v. Bowditch, our Supreme Court stated that “[t]he
legislature's intent in establishing SBM may be inferred from
the declaration in the authorizing legislation that it ‘shall be
known as “An Act To Protect North Carolina's Children/Sex
Offender Law Changes.”’ Ch. 247, sec. 1(a), 2006 N.C. Sess. Laws
at 1066.” 364 N.C. 335, 342, 700 S.E.2d 1, 6 (2010). The Court
reasoned that it was the intent of our legislature “to protect
our State's children from the recidivist tendencies of convicted
sex offenders . . . .” Id.Pursuant to section 14-208.40(a),
[t]he [SBM] program shall be designed to
monitor . . . offenders as follows:
(1) Any offender who is convicted of a
reportable conviction as defined by G.S. 14-
208.6(4) and who is required to register
under Part 3 of Article 27A of Chapter 14 of
the General Statutes because the defendant
is classified as a sexually violent
predator, is a recidivist, or was convicted
of an aggravated offense as those terms are
defined in G.S. 14-208.6.
N.C. Gen. Stat. § 14-208.40(a)(1) (2013).
It would appear that our General Assembly has determined
that an offender convicted of a particular classification of
crimes is to be subject to lifetime satellite-based monitoring.
Implicit in this statutory scheme is a recognition of an
offender’s risk of re-offending if he has committed a certain
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type of offense. This defendant, by statute, is subject to SBM
for life. Further, the statutory scheme provides that if the
court finds the offense committed is not an aggravated offense
(along with other exceptions) and the offender is not a
recidivist, the court shall conduct a risk assessment to
determine whether and for what period of time a defendant should
be subject to SBM. See id. ' 14-208.40A(d),(e). Similar to the
South Carolina policy to protect the public from sex offenders
as stated by the Dykes Court, the North Carolina policy set
forth in the SMB statutes is the same, and therefore, we believe
the imposition of SBM to be rationally related to the purpose of
protecting children and the more general public. See K-Mart
Corp., 358 N.C. at 180—81, 594 S.E.2d at 15 (“[T]he rational
basis test or rational basis review applies, and this Court must
inquire whether distinctions which are drawn by a challenged
statute ... bear some rational relationship to a conceivable
legitimate governmental interest. Rational basis review is
satisfied so long as there is a plausible policy reason for the
classification, the legislative facts on which the
classification is apparently based rationally may have been
considered to be true by the governmental decisionmaker, and the
relationship of the classification to its goal is not so
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attenuated as to render the distinction arbitrary or
irrational.” (citation and quotations omitted)).
In further response to defendant’s argument that there is
an inadequate process for petitioning to be removed from SBM, we
note that our General Assembly has provided an avenue for
petitioners seeking removal from SBM. Per General Statutes,
section 14-208.43, “Request for termination of satellite-based
monitoring requirement,”
[a]n offender described by G.S. 14-
208.40(a)(1) or G.S. 14-208.40(a)(3) who is
required to submit to satellite-based
monitoring for the offender's life may file
a request for termination of monitoring
requirement with the Post-Release
Supervision and Parole Commission. The
request to terminate the satellite-based
monitoring requirement and to terminate the
accompanying requirement of unsupervised
probation may not be submitted until at
least one year after the offender: (i) has
served his or her sentence for the offense
for which the satellite-based monitoring
requirement was imposed, and (ii) has also
completed any period of probation, parole,
or post-release supervision imposed as part
of the sentence.
N.C. Gen. Stat. § 14-208.43(a) (2013). Again, we hold the
imposition of SBM as applied to defendant is rationally related
to the purpose of protecting children and the general public and
does not impermissibly infringe upon defendant’s due process
rights. Accordingly, defendant’s arguments are overruled.
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Affirmed.
Judges HUNTER, Robert C., and STEELMAN concur.