State Carolina v. Jarvis

• Decision Date: 02 August 2011
• Docket Number: No. COA11–31.,COA11–31.
• Citation: 715 S.E.2d 252
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolinav.Tracey Harlan JARVIS.

715 S.E.2d 252

STATE of North Carolina

v.Tracey Harlan JARVIS.

No. COA11–31.

Court of Appeals of North Carolina.

Aug. 2, 2011.

Appeal by defendant from judgment entered 16 July 2010 by Judge John L. Holshouser, Jr., in Rowan County Superior Court. Heard in the Court of Appeals 26 May 2011.

Attorney General Roy Cooper, by Assistant Attorney General Peter A. Regulski, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellant.

CALABRIA, Judge.

Tracey Harlan Jarvis (“defendant”) appeals the trial court's order requiring him to enroll in satellite-based monitoring (“SBM”) for a period of ten years. We vacate and remand the trial court's order.

I. BACKGROUND

“Cayla” and “Kasey,” ¹ defendant's daughter (collectively, “the girls”), were the same age and played softball together.² Defendant, a close friend of Cayla's family for more than eight years, was also the girls' softball coach. Cayla's mother would frequently drop her off at defendant's home because of Cayla's relationship with Kasey, and the girls would spend the night together at defendant's home.

During the summer and fall of 2006, Cayla began spending time at defendant's home when Kasey was not present. On 5 January 2007, defendant and Cayla “were just messing around, sitting on the couch watching a movie” when Cayla “reached over and kissed” defendant. Defendant told Cayla that it “wasn't right” and that if there were “physical relations” between them, he would “probably end up in jail.”

Approximately one week later, defendant and Cayla were watching a movie at defendant's home when she “kissed him [and] started touching him.” Cayla then performed oral sex on defendant. Defendant “stopped her” and told her they “couldn't do that.” Cayla replied that she “understood.” Approximately one week after this incident, defendant and Cayla were in defendant's bed, fully clothed. Cayla began kissing defendant, “and she took off part of her clothes.” Cayla then performed oral sex on him, and defendant did not stop her.

On the afternoon of 6 May 2007, defendant and Cayla were at defendant's home when she performed oral sex on him, and then engaged in intercourse. The next day, 7 May 2007, Cayla's mother called defendant around noon and told him that an unnamed student at Cayla's school “told them something.” The school then called Cayla's mother and told her to come to the school “right away.” Defendant assumed the unnamed student was Kasey.

Cayla's mother contacted defendant and asked him if he “had any idea what was going on.” Defendant replied in the negative. He subsequently called Cayla's mother several times, but she did not answer. Defendant then spoke to Cayla about turning himself into law enforcement. Cayla told him “not to do it,” but defendant “felt like this was the right thing to do.”

On 7 May 2007, defendant voluntarily drove to the China Grove Police Department, where he spoke with Detective Linda Porter (“Detective Porter”) of the Rowan County Sheriff's Department (“RCSD”). Detective Porter read defendant his Miranda rights, and defendant signed a form waiving his rights. He then admitted that he performed oral sex on Cayla “three or four times,” that she performed oral sex on him “about eight or more [times],” and that they also engaged in intercourse.

Defendant, who was thirty-nine years old at the time, was indicted on four counts of statutory sex offense of a person at least six years younger than defendant pursuant to N.C. Gen.Stat. § 14–27.7A(a). On 16 July 2010, in Rowan County Superior Court, defendant entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to four counts of taking indecent liberties with a child. The trial court sentenced defendant on each count to a minimum term of thirteen months to a maximum term of sixteen months in the custody of the North Carolina Department of Correction (“NCDOC”), and ordered defendant to serve all sentences consecutively. The trial court then suspended the sentences. Defendant was given a split sentence. He was placed on supervised probation for a period of thirty-six months and, as a special condition of probation, defendant was ordered to serve two consecutive active terms of 120 days in the custody of the NCDOC.

After entering judgment, the trial court determined defendant's eligibility for SBM, including whether defendant's conviction was a reportable conviction. A reportable conviction, as defined by N.C. Gen.Stat. § 14–208.6(4), means “[a] final conviction for an offense against a minor, a sexually violent offense, or an attempt to commit any of those offenses. ...” The court found that defendant's conviction for taking indecent liberties with a child was a reportable conviction because it was a “sexually violent offense” under N.C. Gen.Stat. § 14–208.6(5). Since defendant was placed on probation, the trial court placed certain mandatory special conditions for sex offenders who have been convicted of a reportable conviction. The trial court ordered that, as part of defendant's special conditions for reportable offenses, defendant had to “abide [by] all conditions of the sex offender control program.”

The trial court also found that defendant had not been classified as a sexually violent predator or a recidivist, but determined that defendant's conviction was an aggravated offense under N.C. Gen.Stat. § 14–208.6(1a); that defendant's conviction involved “the physical, mental, or sexual abuse of a minor;” and that, based on the NCDOC's risk assessment and additional findings, defendant required the highest possible level of supervision and monitoring. The trial court then ordered defendant to enroll in SBM for a period of ten years.

Defendant appeals.

II. INITIAL MATTER

As an initial matter, in the trial court's SBM order, the court found that defendant's offense was an “aggravated offense.” However, our Court has held that the offense of indecent liberties can never be an aggravated offense. State v. Davison, 201 N.C.App. 354, 364–65, 689 S.E.2d 510, 517 (2009), disc. review denied, 364 N.C. 599, 703 S.E.2d 738 (2010). Although defendant does not argue that the trial court erred on this matter, “[w]e note ex mero motu that the judgments as entered contain a clerical error.” State v. Barber, 9 N.C.App. 210, 212, 175 S.E.2d 611, 613 (1970). The transcript of defendant's SBM hearing reflects that the SBM order contained a clerical error:

THE COURT: And that the conviction is not an aggravated offense.

[The State]: The State agrees with that.

(emphasis added). “When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record ‘speak the truth.’ ” State v. Smith, 188 N.C.App. 842, 845, 656 S.E.2d 695, 696 (2008) (internal quotations and citation omitted). Therefore, we remand this matter to the trial court for correction of this clerical error.

III. JURISDICTION

Defendant argues that the trial court lacked subject matter jurisdiction to order him to enroll in SBM because the State failed to file a written pleading providing notice regarding the basis for SBM, and therefore did not invoke the jurisdiction of the court. We disagree.

In the instant case, defendant did not raise the issue of subject matter jurisdiction before the trial court. “However, a defendant may properly raise this issue at any time, even for the first time on appeal.” State v. Reinhardt, 183 N.C.App. 291, 292, 644 S.E.2d 26, 27 (2007).

“A trial court must have subject matter jurisdiction over a case in order to act in that case.” Id. “Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question. [ ] Subject matter jurisdiction is conferred upon the courts by either the North Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987) (internal citation omitted).

Jurisdiction is “[t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it.” Black's Law Dictionary 869 (8th ed.2004). The court must have subject matter jurisdiction, or “[j]urisdiction over the nature of the case and the type of relief sought,” in order to decide a case. Id. at 870. “A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.” Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964).

The General Assembly “within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State.” Bullington v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941). “Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction.” Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975), overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

State v. Wooten, 194 N.C.App. 524, 527, 669 S.E.2d 749, 750 (2008).

“The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division by this Article [.]” N.C. Gen.Stat. § 7A–271(a) (2010); see also State v. Corbett, 191 N.C.App. 1, 13, 661 S.E.2d 759, 767 (2008) (“[S]uperior courts have exclusive, original jurisdiction over “all criminal actions not assigned to the district court division,” including felony criminal actions.”) (Elmore, J., dissenting). The North Carolina General Statutes confer power upon the superior court pursuant to N.C. Gen.Stat. § 14–208.40A, which sets out the procedures to be employed by the sentencing court, to categorize those convicted of reportable offenses and to...