State Of North Carolina v. Brooks, COA09-1068.

• Docket Nº: No. COA09-1068.
• Citation: 693 S.E.2d 204
• Case Date: May 18, 2010
• Court: Court of Appeal of North Carolina (US)

693 S.E.2d 204

STATE of North Carolina
v.
Michael BROOKS.

No. COA09-1068.

Court of Appeals of North Carolina.

May 18, 2010.

693 S.E.2d 205

Appeal by Defendant from order entered 24 April 2009 by Judge R. Allen Baddour in Superior Court, Orange County. Heard in the Court of Appeals 10 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, for the State.

Robert W. Ewing, Clemmons, for Defendant-Appellant.

McGEE, Judge.

Michael Brooks (Defendant) was indicted for second-degree rape, second-degree sexual offense, and assault by strangulation. He was also charged with sexual battery in a subsequently filed information. Defendant entered a guilty plea to assault by strangulation and sexual battery on 5 January 2009. The trial court found as an aggravating factor that Defendant was on probation when the crimes were committed and sentenced Defendant to consecutive terms of 25 to 30 months and 150 days in prison.

Pursuant to N.C. Gen.Stat. § 14-208.40B, the trial court conducted a hearing to determine Defendant's eligibility for enrollment in a satellite-based monitoring program (SBM) on 24 April 2009. The trial court made the following pertinent findings: (1) Defendant was convicted of a reportable offense under N.C. Gen.Stat. 14-208.6, in that his conviction

693 S.E.2d 206

was for a sexually violent offense under N.C. Gen.Stat. § 14-208.6(5); (2) Defendant was not classified as a sexually violent predator; (3) Defendant was not a recidivist; (4) Defendant's conviction was an aggravated offense; and (5) Defendant's conviction did not involve the physical, mental, or sexual abuse of a minor. Upon release from imprisonment, the trial court ordered Defendant to (1) register as a sex offender and (2) to enroll in an SBM program, both for the remainder of his natural life. Defendant appeals from the trial court's order requiring him to enroll in an SBM program for the remainder of his natural life. Grounds for Appellate Review

Defendant gave oral notice of appeal at the SBM hearing from the trial court's order requiring him to enroll in an SBM program for the remainder of his natural life. While oral notice of appeal is proper in “criminal action [s,]” as permitted under N.C.R.App. P. 4(a)(1), oral notice of appeal is insufficient to confer jurisdiction on this Court in civil proceedings. N.C.R.App. P. 3(a); Melvin v. St. Louis, 132 N.C.App. 42, 43, 510 S.E.2d 177, 177 (1999). We note that Defendant is appealing only from the trial court's order requiring him to enroll in SBM for life, and not from his underlying conviction. Because this is a jurisdictional issue, we must first determine whether Defendant's oral notice of appeal was sufficient in this case.

Our Court has held that SBM hearings and proceedings are not criminal actions, but are instead a “civil regulatory scheme[.]” State v. Bare, ---N.C.App. ----, ----, 677 S.E.2d 518, 527 (2009). In State v. Singleton, ---N.C.App. ----, 689 S.E.2d 562 (2010), our Court further determined that: “Therefore, for purposes of appeal, a 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.” Singleton, --- N.C.App. at ----, 689 S.E.2d at 565. We note that in Singleton, our Court determined that we have “jurisdiction to consider appeals from SBM monitoring determinations under N.C. Gen.Stat. § 14-208.40B pursuant to N.C. Gen.Stat. § 7A-27.” Id. at ----, 689 S.E.2d at 566. In light of our decisions interpreting an SBM hearing as not being a criminal trial or proceeding for purposes of appeal, we must hold that oral notice pursuant to N.C.R.App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court. 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[.]” N.C.R.App. P. 3(a).

N.C.R.App. P. 3(a) requires that a party “fil[e] notice of appeal with the clerk of superior court and serv[e] copies thereof upon all other parties[.]” Id. Because the record on appeal does not contain a written notice of appeal filed with the clerk of superior court, which was served upon the State, this appeal must be dismissed. Melvin, 132 N.C.App. at 43, 510 S.E.2d at 177; see also Putman v. Alexander, 194 N.C.App. 578, 581-83, 670 S.E.2d 610, 614 (2009). However, in his brief, Defendant requests that, should we find his notice of appeal...