State Of North Carolina v. Clayton
Decision Date | 03 August 2010 |
Docket Number | No. COA09-987.,COA09-987. |
Citation | 697 S.E.2d 428 |
Parties | STATE of North Carolinav.Ricky CLAYTON, Defendant. |
Court | North Carolina Court of Appeals |
Appeal by defendant from order entered on or about 5 March 2009 by Judge James W. Morgan in Superior Court, Lincoln County. Heard in the Court of Appeals 10 December 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Peter A. Regulski, for the State.
Robert W. Ewing, for defendant-appellant.
Ricky Clayton (“defendant”) appeals from an order enrolling him in satellite-based monitoring (“SBM”). Because the hearing to determine defendant's eligibility for SBM and his enrollment in SBM for a period of ten years was not based on a reportable conviction but on a probation violation, we vacate the trial court's order.
On 13 August 2007 in Mecklenburg County, defendant was charged with two counts of statutory rape; one count of statutory sexual offense with a person thirteen years of age; and three counts of taking indecent liberties with a child. On 21 and 28 August and 11 September 2007, defendant submitted to a psychological evaluation conducted by William M. Tyson, Ph.D., of Blue Ridge Behavior Systems, Inc. Dr. Tyson prepared a report dated 12 March 2008 in which he concluded, in part, that On 22 April 2008, defendant pled guilty to two counts of indecent liberties with a child and all the other charges were dismissed. The trial court sentenced defendant to two consecutive terms of imprisonment, each with a minimum term of 13 months and a maximum term of 16 months. Defendant's sentence was suspended and he was placed on probation for 36 months, with the first six months designated as intensive probation. The trial court's order notes that defendant had been convicted of a “reportable conviction” as defined by N.C. Gen.Stat. § 14-208.6(4). On 19 May 2008, pursuant to N.C. Gen.Stat. § 14-208.40B, defendant was brought back before the Superior Court, Mecklenburg County to determine his eligibility for SBM (“2008 SBM hearing”). Apparently in reliance on Dr. Tyson's report or a Department of Correction (“DOC”) “risk assessment” not included in the record on appeal, the State commented that defendant did “not qualify after the [DOC] assessment[,]” as DOC “did not find that he was a high risk for re-offending.” The trial court then ordered that defendant “is not subject to electronic monitoring.” At defendant's request, the trial court transferred defendant's probation to Lincoln County.
On 21 July 2008, defendant was charged with a violation of his probation in Lincoln County. The violation report alleged that since being placed on probation, defendant had accessed an e-mail account which contained several photographs of a nude adult woman. On 4 August 2008, defendant stipulated to the probation violations and the trial court modified the judgments, placing defendant on house arrest with electronic monitoring for 90 days and ordering that there be “no computer equipment in the residence.” 1
On 5 March 2009, defendant appeared in Superior Court, Lincoln County for a hearing which was noticed and scheduled as a probation violation hearing, but at which defendant's eligibility for SBM was evaluated for a second time (“2009 SBM hearing”). The State argued that the situation had changed since the 2008 SBM hearing in Mecklenburg County, as defendant had violated his probation and the DOC had performed a STATIC 99 assessment of defendant which indicated that he was “high risk.” Defense counsel argued that Dr. Tyson had determined that defendant was a “mild risk” and, therefore, defendant should not be placed on SBM. At the hearing, the trial court made the following findings:
At this point in time, at a hearing May 19th 2008 the Honorable Gentry Caudill found that he was not subject to electronic monitoring. The case was transferred to Lincoln County. Since that time he had a probation violation and the nature of that violation was sexual in nature....
The trial court entered a “Judgment/Order or Other Deposition” which ordered that “defendant be placed on GPS monitoring for a period of ten years.” 2 Defendant gave notice of appeal in open court.
We first address the grounds for appellate review of defendant's appeal. Recently, this Court in State v. Brooks held “that oral notice pursuant to N.C.R.App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court[,]” for defendants appealing from a trial court's order requiring enrollment in an SBM program. --- N.C.App. ----, ----, 693 S.E.2d 204, 206 (2010). “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. N.C.R.App. P. 3(a) requires written notice of appeal to be filed with the clerk of superior court and copies to be served on all other parties. Defendant failed to comply with N.C.R.App. P. 3(a), as he only gave oral notice of appeal at the 2009 SBM hearing and there is no written notice of appeal in the record, which was served on the State. “The provisions of Rule 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal.” Stephenson v. Bartlett, 177 N.C.App. 239, 241, 628 S.E.2d 442, 443 (citations and quotation marks omitted) disc. review denied, 360 N.C. 544, 635 S.E.2d 58 (2006). Therefore, we are compelled to dismiss defendant's appeal. However, defendant citing State v. Bare, 197N.C.App. 461, 677 S.E.2d 518 (2009) in his brief, requests that, should we find his “oral notice of appeal pursuant to Rule 4(a)(1) of the Rules of Appellate Procedure was not sufficient because [it] is a civil case,” that we treat his brief as a petition for writ of certiorari. We note that this Court's decision in Bare, which held that North Carolina's SBM statutes were a civil and regulatory regime rather than punishment, was decided on 16 June 2009. Id. at ----, 677 S.E.2d at 524. This Court further explained in State v. Singleton, --- N.C.App. ----, ----, 689 S.E.2d 562, 565-66 (2010), which was decided on 5 January 2010, that, “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” but jurisdiction to hear appeals from SBM hearings is based on N.C. Gen.Stat. § 7A-27. Here, defendant's oral notice of appeal was given on 5 March 2009, more than three months before Bare, ten months before Singleton, and more than a year and two months before this Court made its decision in Brooks on 18 May 2010, holding that appeals taken from SBM proceeding must be in writing. Therefore, defendant at the time of his SBM hearing did not have any indication that notice of appeal pursuant to N.C.R.App. P. 4(a)(1) was improper. 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 to consider his brief as a petition for writ of certiorari and address the merits of his appeal.
State v. Wooten, 194 N.C.App. 524, 527, 669 S.E.2d 749, 750 (2008) disc. review denied, 363 N.C. 138, 676 S.E.2d 308 (2009).
N.C. Gen.Stat. §§ 14-208.40A and 14-208.40B (2009) set forth the procedures for SBM hearings.
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State v. Perkins
...N.C.App. 300, 697 S.E.2d 428 (2010), in support of this conclusion. This conclusion, however, appears to be based on a serious misreading of Clayton. 53 Clayton involved an offender who a trial judge purported to order to enroll in SBM for ten years on the basis of a probation violation, 20......
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State v. Perkins
...N.C.App. 300, 697 S.E.2d 428 (2010), in support of this conclusion. This conclusion, however, appears to be based on a serious misreading of Clayton. 53 Clayton involved an offender who a trial judge purported to order to enroll in SBM for ten years on the basis of a probation violation, 20......
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State v. Carter
...on the same reportable conviction, after the initial SBM determination is made based on that conviction." State v. Clayton , 206 N.C. App. 300, 305-06, 697 S.E.2d 428, 432 (2010). Section 14-208.40A of our General Statutes provides:(a) When an offender is convicted of a reportable convictio......
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State v. Carter
...issue the writ, and consider Defendant's challenges to the trial court's SBM order on the merits. See State v. Clayton, 206 N.C.App. 300, ––––, 697 S.E.2d 428, 431 (2010).2. Defendant's Eligibility for SBM N.C. Gen.Stat. § 14–208.40(a) subjects two categories of offenders with reportable co......