State v. Massey ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA14-27
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. New Hanover County
No. 13 CRS 5736
JESSE JOSEPH MASSEY
Appeal by defendant from order entered 13 August 2013 by
Judge W. Allen Cobb, Jr., in New Hanover County Superior Court.
Heard in the Court of Appeals 30 June 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph Finarelli, for the State.
James W. Carter for defendant-appellant.
BRYANT, Judge.
Where the arguments presented on appeal have previously
been rejected by prior panels of our appellate Courts, we reject
defendant’s arguments in the instant case.
On 13 June 2000, defendant pled guilty to indecent
liberties with a child in Pitt County (00 CRS 4855) and was
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sentenced to 12 to 15 months imprisonment. The State dismissed
a statutory rape charge in exchange for defendant’s plea. On 4
June 2003, defendant pled guilty to second-degree sexual offense
in Stanly County (02 CRS 50379) and was sentenced to a term of
120 to 153 months. In that case, the State agreed to dismiss
charges of first-degree sexual offense and indecent liberties.
On 23 May 2013, defendant received notice of a Satellite-
Based Monitoring (“SBM”) enrollment hearing. Defendant filed a
motion to dismiss the SBM action on 30 July. At a hearing on 13
August 2013, the trial court denied defendant’s motion to
dismiss and ordered him to enroll in lifetime SBM. Defendant
appeals.
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Defendant presents four arguments on appeal: (I) his SBM
enrollment violates the state and federal constitutional ex post
facto clauses because the SBM law was enacted after he pled
guilty; (II) his SBM enrollment violates his due process rights
because SBM enrollment was not an enumerated condition of his
plea agreement; (III) his SBM enrollment violates constitutional
double jeopardy protections because it constitutes additional
punishment for his offenses; and (IV) his SBM enrollment
violates his right to be free from cruel and unusual punishment
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because wearing the monitoring equipment will subject him to
public scorn. However, as defendant acknowledges in his brief,
our appellate courts have rejected each of his arguments in
prior cases, and we are bound by that precedent. In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989).
First, our Supreme Court overruled defendant’s ex post
facto argument in State v. Bowditch, 364 N.C. 342, 700 S.E.2d 1(2010), because SBM constitutes “a civil, regulatory scheme to
protect citizens of our state from the threat posed by the
recidivist tendencies of convicted sex offenders” and not a
criminal punishment. Id. at 352, 700 S.E.2d at 12. Defendant
asks this Court to reconsider Bowditch in light of the United
States Supreme Court’s subsequent holding in United States v.
Jones, ___ U.S. ___, 132 S. Ct. 945 (2012), but we are without
authority to overrule that case. See Nunn v. Allen, 154 N.C.
App. 523, 530, 574 S.E.2d 35, 40 (2002) (“This Court has no
authority to overrule decisions of the North Carolina Supreme
Court.” (citation omitted)).
Next, as defendant concedes, we have previously rejected
his argument that failure to advise a defendant he would be
subject to SBM registration as a consequence of his plea
agreement, which was entered into prior to the enactment of the
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SBM statute, violated the defendant’s due process rights. State
v. Bare, 197 N.C. App. 461, 479—80, 677 S.E.2d 518, 531—32
(2009) (holding that where, as here, the trial court scheduled a
hearing as to SBM, “the imposition of SBM was not an automatic
result of [defendant’s] no contest plea”).
Third, defendant argues that SBM registration violated the
constitutional prohibition against double jeopardy, but
acknowledges that this argument lacks merit based on the
reasoning adopted in Bowditch. See State v. Anderson, 198 N.C.
App. 201, 204—05, 679 S.E.2d 165, 167 (2009) (holding that
because SBM is a civil regulatory scheme, it does not violate
the double jeopardy clause).
Finally, defendant argues that SBM enrollment subjects him
to cruel and unusual punishment, but again acknowledges that our
courts have already rejected this contention. See State v.
Jarvis, ___ N.C. App. ___, ___, 715 S.E.2d 252, 262 (2011)
(holding that SBM does not constitute cruel and unusual
punishment because it is a civil regulatory scheme).
In sum, because all of defendant’s arguments have
previously been rejected by our appellate courts, we are
compelled to reject those arguments in this case. Accordingly,
the trial court’s order is affirmed.
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Affirmed.
Judges STROUD and HUNTER, Robert N., Jr., concur.
Report per Rule 30(e).