State v. Mills

NO. COA13-590
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Buncombe County
No. 02 CRS 62338
WILLIAM ROSCOE MILLS, JR.
Appeal by defendant from order entered 22 January 2013 by
Judge Mark E. Powell in Buncombe County Superior Court. Heard in
the Court of Appeals 20 November 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph Finarelli, for the State.
Jon W. Myers for defendant.
HUNTER, Robert C., Judge.
Defendant William Mills, Jr. appeals the order entered 22
January 2013 requiring him to enroll in Satellite-Based Monitoring
(“SBM”) for the remainder of his life. On appeal, defendant argues
that the trial court’s order must be vacated because: (1) the trial
court erred in finding that defendant was given proper notice of
the basis for which the Department of Correction believed him
eligible for SBM and that defendant was given notice of the date
of the scheduled SBM hearing; (2) the trial court lacked subject
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matter jurisdiction to hold the SBM hearing; (3) the trial court
erred in concluding defendant had adequate and proper notice of
the SBM hearing in violation of his due process rights; and (4)
the SBM statutes violate the prohibition against ex post facto
laws and double jeopardy as applied. After careful review, we
affirm the trial court’s order.
Background
On 2 June 2003, defendant pled guilty to one count of second
degree rape and three counts of second degree sex offense in
exchange for the consolidation of the offenses for sentencing, a
sentence in the presumptive range, and an agreement by the State
to not prosecute defendant for any additional charges involving
other victims. The trial court sentenced him to a minimum term of
73 months to a maximum term of 97 months imprisonment.
After defendant served his sentence, the trial court
conducted a bring-back hearing to determine defendant’s
eligibility for enrollment in an SBM program. The State’s petition
requesting the hearing is not included in the record on appeal.
Prior to the hearing, defendant’s counsel filed a motion to dismiss
the petition, arguing that: (1) retroactive application of the SBM
program violates the ex post facto provision of the United States
and North Carolina Constitutions; (2) ordering defendant to enroll
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in an SBM program violates the double jeopardy clause; (3) the SBM
hearing violates defendant’s right to a jury trial and due process
by increasing his punishment for prior offenses without submitting
the issue to a jury; and (4) the SBM program interferes with
defendant’s right to travel and the right to be free from
warrantless searches.
The matter came on for hearing on 22 January 2013 before Judge
Mark E. Powell in Buncombe County Superior Court. The trial court
marked the following findings on a preprinted, standard form: (1)
defendant was convicted of a reportable offense but the sentencing
court made no determination of whether defendant should be required
to enroll in SBM; (2) the Department of Correction (the “DOC”)
determined that defendant fell into at least one of the categories
requiring SBM pursuant to N.C. Gen. Stat. § 14-208.40 and gave
notice to defendant of this category; (3) the District Attorney
scheduled a hearing in the county of defendant’s residence and the
DOC provided notice to defendant required under 14-208.40B, and
the hearing was not held sooner than 15 days after that notice;
and (4) the offense defendant was convicted of was an aggravated
offense. Based on these findings, the trial court ordered
defendant enroll in SBM for the remainder of his natural life.
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Additionally, the trial court denied defendant’s motion to dismiss
the petition. Defendant timely appealed.
Arguments
Defendant first argues that there was no evidence presented
at the determination hearing establishing that defendant had been
provided adequate notice of the basis for which the DOC believed
him eligible for SBM or that defendant had been served the notice
of the hearing in compliance with N.C. Gen. Stat. § 14-208.40B(b).
Specifically, defendant contends that none of the findings marked
on the standard preprinted form were supported by competent
evidence at the hearing. Based on the record, we conclude that
defendant has waived his right to raise this issue on appeal
because he failed to object to these findings at the SBM hearing.
Initially, we note that our Supreme Court has classified an
SBM hearing as a civil regulatory proceeding. State v. Bowditch,
364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010); State v. Arrington, __
N.C. App. __, __, 741 S.E.2d 453, 457 (2013). For SBM enrollment,
“the trial court is statutorily required to make findings of fact
to support its legal conclusions.” State v. Morrow, 200 N.C. App.
123, 126, 683 S.E.2d 754, 757 (2009), aff’d, 364 N.C. 424, 700
S.E.2d 224 (2010). On appeal, this Court “review[s] the trial
court’s findings of fact to determine whether they are supported
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by competent record evidence[.]” State v. Kilby, 198 N.C. App.
363, 367, 679 S.E.2d 430, 432 (2009).
Pursuant to N.C. Gen. Stat. § 14-208.40B(b),
[i]f the [DOC] determines that the offender
falls into one of the categories described in
[N.C. Gen. Stat. §] 14-208.40(a), the district
attorney, representing the [DOC], shall
schedule a hearing in superior court for the
county in which the offender resides. The
[DOC] shall notify the offender of the [DOC’s]
determination and the date of the scheduled
hearing by certified mail sent to the address
provided by the offender pursuant to G.S. 14-
208.7. The hearing shall be scheduled no
sooner than 15 days from the date the
notification is mailed. Receipt of
notification shall be presumed to be the date
indicated by the certified mail receipt. Upon
the court’s determination that the offender is
indigent and entitled to counsel, the court
shall assign counsel to represent the offender
at the hearing pursuant to rules adopted by
the Office of Indigent Defense Services.
Moreover, this Court has concluded that “N.C. Gen. Stat. §
14–208.40B(b)’s requirement that the [DOC] ‘notify the offender of
[its] determination’ mandates that the [DOC], in its notice,
specify the category set out in N.C. Gen. Stat. § 14–208.40(a)
into which the [DOC] has determined the offender falls and briefly
state the factual basis for that conclusion.” State v. Stines,
200 N.C. App. 193, 204, 683 S.E.2d 411, 418 (2009).
At the hearing, both defendant and his counsel were present.
The following colloquy took place:
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THE COURT: I want to state for the record
that—I’ll just go down through the form. And
I’m reading this out loud so I don’t make a
mistake when I go through it. The defendant
was convicted of a reportable conviction, but
no determination was made back in 2002. Check
number 2. I think I should, but——
[THE STATE]: Yes, I believe you would, Your
Honor.
THE COURT: Sir, do you wish to say anything
about that? Counsel, do you wish to respond
to me checking number 2 or not?
[DEFENSE COUNSEL]: No, sir.
THE COURT: I’m just not as familiar with this
form. I’ve checked number 2 and 3 on the form.
As to number 4, the defendant falls into at
least one of the categories requiring
satellite-based monitoring in that the offense
of which the defendant was convicted was an
aggravated offense. Based on the foregoing,
the defendant is subject to satellite-based
monitoring for the remainder of his natural
life. Counsel, anything else?
[THE STATE]: No, Your Honor.
As defendant correctly notes, there was no evidence presented
at the hearing establishing that defendant received proper notice,
by certified mail, of the hearing or that defendant received notice
of the basis upon which the State believed him eligible for SBM.
However, the record is clear that defendant failed to object at
the hearing when the trial court was reviewing the findings of
fact on the preprinted form. The trial court even invited
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defendant to argue or challenge them by asking defendant’s counsel
whether he wanted to “say anything about that.” However, defense
counsel declined to do so. Furthermore, neither the petition nor
the notice of the SBM hearing were included in the record on appeal
even though defendant’s motion to dismiss referenced the petition.
“It is well settled that a silent record supports a presumption
that the proceedings below are free from error, and it is the duty
of the appellant to see that the record is properly made up and
transmitted to the appellate court.” State v. Perry, 316 N.C. 87,
107, 340 S.E.2d 450, 462 (1986). Finally, we find it pertinent
that defendant made a motion to dismiss the State’s petition for
SBM but included no argument that he was not afforded proper notice
of the hearing nor did he argue that he received no notice of the
category in which he fell that made him eligible for SBM.
Consequently, defendant has waived any objection to these findings
on appeal.
Next, defendant argues that the trial court lacked subject
matter jurisdiction to conduct defendant’s SBM hearing because
there was no competent evidence presented at the hearing that
defendant resided in Buncombe County. Because N.C. Gen. Stat. §
14-208.40B(b)’s requirement that an SBM hearing be brought in the
county in which the offender resides addresses venue, not subject
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matter jurisdiction, defendant’s failure to object at the hearing
waives this argument on appeal.
N.C. Gen. Stat. § 14–208.40B(b) requires that SBM petition
hearings be held “in superior court for the county in which the
offender resides.” Defendant argues that although he did not
object at the hearing that it was not being held in the county in
which he resided, this issue may be raised for the first time on
appeal since it addresses subject matter jurisdiction.
Defendant’s argument relies on his contention that only the
superior court in the county in which he resides has subject matter
jurisdiction over the hearing. However, defendant confuses the
concepts of subject matter jurisdiction and venue. “Subject matter
jurisdiction involves the authority of a court to adjudicate the
type of controversy presented by the action before it.” In re
McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003)
(quoting Haker–Volkening v. Haker, 143 N.C. App. 688, 693, 547
S.E.2d 127, 130 (2001)). “The question of subject matter
jurisdiction may be raised at any time, even in the Supreme Court.”
Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d
83, 85-86 (1986) (citation omitted). In contrast, “[v]enue means
the place wherein the cause is to be tried” and “is not
jurisdictional.” Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d
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334, 337 (1953). A defendant who does not challenge venue at the
trial level fails to preserve the issue for appellate review. See
generally, State v. Walters, 357 N.C. 68, 78, 588 S.E.2d 344, 350
(2003); In re Estate of Hodgin, 133 N.C. App. 650, 652, 516 S.E.2d
174, 175 (1999). Thus, subject matter jurisdiction and venue are
two distinct concepts, each with its own rules regarding the
ability of a party to challenge it for the first time on appeal.
Pursuant to N.C. Gen. Stat. § 14–208.40B(b), while the
superior court has subject matter jurisdiction over SBM hearings,
the requirement that the hearing be held in the superior court in
the county in which the offender resides relates to venue. As
noted, SBM hearings are civil in nature, Bowditch, 364 N.C. at
352, 700 S.E.2d at 13, and our Courts have recognized the
distinction between subject matter jurisdiction and venue in other
common civil proceedings, see generally, Smith v. Smith, 56 N.C.
App. 812, 813, 290 S.E.2d 390, 391 (1982) (noting that, while the
district court has subject matter jurisdiction over divorce
actions, “G.S. § 50-3, which states that summons for divorce
proceedings shall be returnable to the court of the county in which
either plaintiff or defendant resides, and G.S. § 50-8, which
states that a complainant who is a nonresident of this State shall
bring any divorce action in the county of defendant’s residence,
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are not jurisdictional, and relate only to venue.”); In re Estate
of Hodgin, 133 N.C. App. at 651, 516 S.E.2d at 175 (concluding
that although “the clerk of superior court in each county has
exclusive original jurisdiction over the administration of
estates[,]” venue is based on the county in which the decedent was
domiciled at the time of his death or in the county in which the
decedent left property and assets if he is not a resident of the
State).
While N.C. Gen. Stat. § 14-208.40B(b) confers subject matter
jurisdiction to the superior court, it also sets out the method
for determining the proper venue. Defendant is mistakenly
characterizing his venue challenge as a challenge to the trial
court’s subject matter jurisdiction in order to preserve his right
to raise this issue for the first time on appeal. However, venue
“is waivable by any party . . . if objection thereto is not made
‘in apt time.’” In re Estate of Hodgin, 133 N.C. App. at 652, 516
S.E.2d at 175. Accordingly, since defendant failed to challenge
the venue of his SBM hearing either in his motion to dismiss or in
arguments at the hearing, he has waived this issue on appeal.
Next, defendant argues that the trial court erred by ordering
him to enroll in SBM when he did not receive adequate and proper
notice of the date of the SBM hearing as required by law in
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violation of the Fourteenth Amendment of the United States
Constitution and Article 1, section 19 of the North Carolina
Constitution. We conclude that defendant has waived his right to
raise this constitutional challenge on appeal.
Our appellate courts will only review constitutional
questions raised and passed upon at trial. N.C. R. App. P.
10(b)(1) (2012); State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d
535, 539 (1982); State v. Wilkerson, 363 N.C. 382, 420, 683 S.E.2d
174, 198 (2009). Here, in his motion to dismiss the State’s
petition, defendant puts forth no argument that his constitutional
protection of due process was violated by the State’s failure to
provide him proper notice of the hearing as specified in N.C. Gen.
Stat. § 14-208.40B(b). Furthermore, defendant did not raise any
issue related to notice at the SBM hearing. Therefore, defendant
has failed to preserve this constitutional issue for appeal.
Finally, defendant also argues that SBM violates the ex post
facto and double jeopardy prohibitions of the United States and
North Carolina Constitutions. Defendant acknowledges that the
North Carolina Supreme Court has previously held that the SBM
program is a civil regulatory scheme that does not implicate
constitutional protections against either ex post facto laws or
double jeopardy, Bowditch, 364 N.C. 335, 700 S.E.2d 1, but raises
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this issue for “preservation purposes.” As we are bound by the
decisions of our Supreme Court, Dunn v. Pate, 334 N.C. 115, 118,
431 S.E.2d 178, 180 (1993), defendant’s argument is overruled.
Conclusion
Because defendant failed to object at trial to the trial
court’s finding that he was afforded proper notice of the hearing
and of the category into which he fell that made him eligible for
SBM, defendant has waived this issue on appeal. Since defendant
failed to challenge the venue of the hearing at the trial level,
he waived his right to raise it for the first time on appeal. We
will not address defendant’s contention that his due process rights
were violated when the State did not follow the proper statutory
requirements of notice because he did not raise this issue before
the trial court either at the SBM hearing or in his motion to
dismiss. Finally, defendant’s argument that the imposition of SBM
violates the prohibition against ex post facto laws and double
jeopardy is overruled based on Bowditch.
AFFIRMED.
Judges CALABRIA and HUNTER, JR., ROBERT N. concur.