State Of North Carolina v. Cowan

• Decision Date: 21 September 2010
• Docket Number: No. COA09-1415.,COA09-1415.
• Citation: 700 S.E.2d 239
• Parties: STATE of North Carolina v. Curtis C. COWAN.
• Court: North Carolina Court of Appeals

700 S.E.2d 239

STATE of North Carolina

v.Curtis C. COWAN.

No. COA09-1415.

Court of Appeals of North Carolina.

Sept. 21, 2010.

Appeal by defendant from order entered 17 April 2009 by Judge John L. Holshouser, Jr., in Rowan County Superior Court. Heard in the Court of Appeals 15 April 2010.

Attorney General Roy Cooper, by Assistant Attorney General Catherine M. (Katie) Kayser, for State.

Robert W. Ewing, Clemmons, for defendant.

ERVIN, Judge.

Defendant Curtis C. Cowan appeals from a trial court order requiring him to enroll in lifetime satellite-based monitoring (SBM). After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be vacated and that this case should be remanded to the trial court for a new SBM hearing to be held only after proper notice is given to Defendant.

I. Factual Background

On 6 June 2005, a warrant for arrest charging Defendant with taking indecent liberties with a child was issued. On 11 July 2005, the Cabarrus County grand jury returned a bill of indictment charging Defendant with taking indecent liberties with a child. On 29 August 2007, the prosecutor, with Defendant's consent, signed an information charging Defendant with solicitation to take indecent liberties with a child. On the following day, Defendant entered pleas of guilty to one count of attempted second degree kidnapping and one count of solicitation to commit indecent liberties with a child. In return for Defendant's guilty pleas, the State voluntarily dismissed a statutory sexual offense charge, an intimidating a witness charge, a breaking or entering charge, and an habitual felon allegation. Based upon Defendant's guilty pleas, Judge W. Robert Bell entered judgments sentencing Defendant to a minimum term of 15 months and a maximum term of 20 months imprisonment in the custody of the North Carolina Department of Correction for attempted second degree kidnapping and sentencing Defendant to a consecutive minimum term of 9 months and a maximum term of 11 months in the custody of the Department of Correction for solicitation to take indecent liberties with a child. Judge Bell suspended Defendant's sentence for solicitation to take indecent liberties with a child and placed Defendant on supervised probation for a period of 36 months, subject to a number of terms and conditions. On 15 February 2008, Defendant elected to serve his suspended sentence rather than remain on supervised probation.

On 5 January 2009, the State scheduled a hearing to determine whether Defendant should be required to enroll in SBM. By means of a letter dated 8 January 2009, the Department of Correction notified Defendant of its initial determination that he was subject to SBM. The issue of whether Defendant should be required to enroll in SBM came on for hearing before the trial court on 6 March 2009 and 17 April 2009.

At the 6 March 2009 hearing, Probation Officer Lisa Foust stated that the results of Defendant's Static-99 risk assessment indicated that he had a “high risk for reoffending.” In addition, Ms. Foust stated that she had obtained the “official crime version of what happened that Cabarrus County constructed after he was sentenced” and that this report indicated that Defendant had penetrated the four-year-old victim. On 17 April 2009, the trial court found that Defendant had committed a reportable offense “involv[ing] the physical, mental or sexual abuse of a minor” and ordered him to enroll in SBM for “the remainder of [his] natural life.” Defendant noted an appeal to this Court from the trial court's order.

II. Legal Analysis

A. Appropriateness of Defendant's Notice of Appeal

The first issue that we must address is the extent, if any, to which Defendant's appeal is properly before this Court. Defendant's appeal from the trial court's order requiring him to enroll in lifetime SBM was noted orally in open court. According to State v. Brooks, ---N.C.App. ----, ----, 693 S.E.2d 204, 206 (2010), “oral notice pursuant to N.C.R.App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court” in a case arising from a trial court order requiring a litigant to enroll in SBM. “Instead, a defendant must give notice of appeal pursuant to N.C.R.App. P. 3(a) as is proper ‘in a civil action or special proceeding.’ ” Id. (quoting N.C.R.App. P. 3(a)). N.C.R.App. P. 3(a) (2010) provides that appeals to the appellate courts in civil actions and special proceedings are required to be in writing, filed with the Clerk of Superior Court, and served upon all other parties. As a result of the fact that Defendant noted his appeal orally, rather than in writing, and the fact that “ ‘[t]he provisions of [N.C.R.App. 3] are jurisdictional,’ ” Stephenson v. Bartlett, 177 N.C.App. 239, 241, 628 S.E.2d 442, 443 (quoting Abels v. Renfro Corp., 126 N.C.App. 800, 802, 486 S.E.2d 735, 737 (1997)); (citing Currin-Dillehay Bldg. Supply Inc. v. Frazier, 100 N.C.App. 188, 189, 394 S.E.2d 683 (1990)), disc. review denied, 360 N.C. 544, 635 S.E.2d 58 (2006), we are required to dismiss Defendant's appeal.

In addition to attempting to use his oral notice as a means of invoking this Court's jurisdiction, Defendant has requested that we treat his brief as a petition for certiorari in the event that we found his oral notice of appeal to be ineffective. According to N.C.R.App. P. 21(a)(1) (2010), “[t]he writ of certiorari may be issued by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute on appeal has been lost by failure to take timely action.” The effect of this Court's decision in Brooks is that Defendant was required to note an appeal from the trial court's SBM order in writing was that Defendant failed to note an appeal from the trial court's order in a timely manner, which is one of the reasons for which this Court is authorized to issue a writ of certiorari. We note that this Court's decision in State v. Bare, 197 N.C.App. 461, 466-67, 677 S.E.2d 518, 524 (2009), which held that North Carolina's SBM statutes constituted a civil and regulatory regime rather than a criminal punishment, was decided on 16 June 2009. This Court further explained in State v. Singleton, ---N.C.App. ----, ----, 689 S.E.2d 562, 565-66, disc. review allowed, 364 N.C. 131, 696 S.E.2d 697 (2010), which was decided on 5 January 2010, that, “for purposes of appeal, a[n] SBM hearing is not a ‘criminal trial or proceeding’ for which a right of appeal is based upon N.C. Gen.Stat. § 15A-1442 or N.C. Gen.Stat. § 15A-1444,” so that jurisdiction to hear appeals from SBM hearings stems from N.C. Gen.Stat. § 7A-27. Finally, our decision in Brooks was issued on 18 May 2010. Defendant's appeal was noted on 17 April 2009, approximately two months before Bare, nine months before Singleton, and thirteen months prior to Brooks. As a result, at the time of his SBM hearing, Defendant would have needed a considerable degree of foresight in order to understand that an oral notice of appeal pursuant to N.C.R.App. P. 4(a)(1) was ineffective. Accordingly, “[i]n the interest of justice, and to expedite the decision in the public interest,” Brooks, ---N.C.App. at ----, 693 S.E.2d at 206, we grant defendant's request that we consider his brief as a petition for the issuance of a writ of certiorari, issue the writ, and consider his challenges to the trial court's SBM order on the merits. See also State v. Clayton, --- N.C.App. ----, ----, 697 S.E.2d 428, 431 (2010).

B. Effective Date of N.C. Gen.Stat. § 14-208.40B

First, Defendant contends that the provisions of N.C. Gen.Stat. § 14-208.40B do not apply to cases involving offenses committed prior to the effective date of that statutory subsection. In essence, Defendant argues that, since N.C. Gen.Stat. § 14-208.40B is the only statutory vehicle under which individuals whose eligibility for SBM was not determined at the time that judgment was imposed can be ordered to enroll in SBM and since the offense upon which Defendant's eligibility for SBM was predicated was committed before the effective date of N.C. Gen.Stat. § 14-208.40B, the trial court lacked the authority to require individuals, such as Defendant, who committed crimes prior to the effective date of N.C. Gen.Stat. § 14-208.40B and whose eligibility for SBM was not determined at the time that judgment was imposed, to enroll in SBM. We disagree.

The original SBM statutes became effective on 16 August 2006 and applied (1) to any offenses “committed on or after that date” and (2) to “any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date.” 2006 N.C. Sess. L., c. 247, s. 15( l ). On 11 July 2007, the Governor signed legislation enacting N.C. Gen.Stat. § 14-208.40A and N.C. Gen.Stat. § 14-208.40B, which established the procedures that were to be utilized in determining whether particular offenders would be required to enroll in SBM, among other SBM-related provisions. According to 2007 N.C. Sess. L., c. 213, s. 15:

Section 2 of this act [N.C. Gen.Stat. § 14-208.40A] becomes effective December 1, 2007, and applies to sentences entered on or after that date. Section 6 of this act [failure to enroll a felony] becomes effective December 1, 2007, and applies to offenses committed on or after that date. Sections 7 [conditions of probation], 8 [conditions of parole] and 9 of this act [other post-release conditions] become effective on December 1, 2007 and apply to persons placed on probation, parole, or post-release supervision on or after that date. Section 9A [reporting requirements amended] becomes effective December 1, 2007. The remainder of this act [including Section 3, which contained N.C. Gen.Stat. § 14-208.40] is effective when it becomes law.

Thus, N.C. Gen.Stat. § 14-208.40B initially became effective 11 July...