State v. Ricks

• Citation: 862 S.E.2d 835,378 N.C. 737
• Decision Date: 24 September 2021
• Docket Number: No. 233A20,233A20
• Parties: STATE of North Carolina v. Johnathan RICKS
• Court: United States State Supreme Court of North Carolina

378 N.C. 737

862 S.E.2d 835

STATE of North Carolina

v.Johnathan RICKS

No. 233A20

Supreme Court of North Carolina.

Filed September 24, 2021

Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State-appellant.

Kimberly P. Hoppin, for defendant-appellee.

NEWBY, Chief Justice.

¶ 1 In this case we decide whether the Court of Appeals erred by allowing defendant's petition for writ of certiorari and invoking Rule 2 to review defendant's unpreserved challenge to the trial court's orders imposing lifetime satellite-based monitoring (SBM). The North Carolina Rules of Appellate Procedure require that a party seeking appellate review of an SBM order make an objection before the trial court and file a written notice of appeal. A writ of certiorari and invocation of Rule 2 cannot be used to circumvent the Rules of Appellate Procedure. Rather, an appellate court may only consider certiorari when the petition shows merit, meaning that the trial court probably committed error at the hearing. Further, an appellate court may only invoke Rule 2 when injustice appears manifest to the court or when the case presents significant issues of importance in the public interest. Here the Rules of Appellate Procedure bar defendant's appeal. Defendant failed to demonstrate any manifest injustice sufficient to warrant invoking Rule 2, and his petition to the Court of Appeals showed no merit. Therefore, the Court of Appeals abused its discretion when it allowed defendant's petition for writ of certiorari and invoked Rule 2 to review the SBM orders. Accordingly, we reverse the Court of Appeals’ decision vacating the trial court's orders imposing SBM.

¶ 2 On 17 January 2019, a jury convicted defendant of three counts of statutory rape of a child by an adult, two counts of statutory sex offense with a child, and three counts of taking indecent liberties with a child. Directly after sentencing in the criminal case, the trial court conducted a civil hearing to address SBM and found that defendant's convictions were reportable under N.C.G.S. § 14-208.6(4) (2019).¹ The trial court determined that all of defendant's offenses were sexually violent and involved the physical, mental, or sexual abuse of a minor. The trial court also found that the statutory rape and statutory sex offense convictions were aggravated offenses. The trial court issued separate SBM orders for defendant's various convictions. Based upon defendant's indecent liberties convictions, the trial court ordered defendant to comply with the sex offender registry for thirty years upon his release from prison and, following a risk assessment, to return to the trial court for a later determination on SBM.² Additionally, based upon defendant's other convictions, which were aggravated offenses, the trial court ordered lifetime sex offender registration and SBM pursuant to N.C.G.S. § 14-208.40A(c) (2019).³

¶ 3 Though defendant gave oral notice of appeal from his criminal convictions, he made no objection to the imposition of SBM and never filed a written notice of appeal of the SBM orders. After filing the record in the Court of Appeals for his criminal appeal, defendant filed a petition for writ of certiorari seeking review of the SBM orders. The Court of Appeals unanimously held that defendant received a trial free from prejudicial error. State v. Ricks , 271 N.C. App. 348, 364, 843 S.E.2d 652, 665 (2020). It reached a divided decision, however, on the SBM issue. Id. Despite defendant's fatal procedural errors, the Court of Appeals relied upon this Court's decision in State v. Bursell , 372 N.C. 196, 827 S.E.2d 302 (2019), and reached the merits of defendant's SBM challenge. Ricks , 271 N.C. App. at 361, 843 S.E.2d at 664. It did so by allowing defendant's petition for writ of certiorari and invoking Rule 2 of the North Carolina Rules of Appellate Procedure. Id. at 358, 843 S.E.2d at 662. The Court of Appeals then held that the trial court failed to conduct a reasonableness hearing pursuant to this Court's decision in State v. Grady , 372 N.C. 509, 831 S.E.2d 542 (2019), and vacated the SBM orders without prejudice. Ricks , 271 N.C. App. at 364, 843 S.E.2d at 665.

¶ 4 The dissent, however, would not have allowed defendant's petition for writ of certiorari because "[d]efendant ha[d] not demonstrated any prejudice to merit issuance of the writ." Id. at 368, 843 S.E.2d at 668 (Tyson, J., concurring in the result in part and dissenting in part) (citing State v. Grundler , 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) ). Further, the dissent would have refused to invoke Rule 2 because defendant failed to show he is any "different from other defendants who failed to preserve their constitutional arguments in the trial court, and because he ha[d] not argued any specific facts that demonstrate manifest injustice." Ricks , 271 N.C. App. at 366, 843 S.E.2d at 666 (quoting State v. Bishop , 255 N.C. App. 767, 770, 805 S.E.2d 367, 370 (2017) ). According to the dissent, the trial court's imposition of SBM did not demonstrate manifest injustice because (1) "[d]efendant's status does not fall within the category of defendants at issue in Grady ..., that is, recidivists who have completed their sentence and are no longer under any State supervision"; (2) defendant's convictions "were reportable convictions pursuant to N.C.[G.S.] § 14-208.6"; (3) "[d]efendant's convictions of statutory rape of a child by an adult and statutory sex offense are sexually violent and aggravated offenses involving the sexual abuse of a minor"; and (4) N.C.G.S. § 14-208.40A(c), which has "withstood and survived constitutional scrutiny," requires "defendants convicted of sexually violent offenses or aggravated offenses to be subject to [SBM]." Ricks , 271 N.C. App. at 367, 843 S.E.2d at 667. As such, the dissent noted that "[d]efendant's failure to appeal from or to preserve his purported challenge to his SBM order[s] on constitutional grounds mandates dismissal." Id. at 369, 843 S.E.2d at 668. The State appealed to this Court based upon the dissenting opinion at the Court of Appeals.

¶ 5 We review the Court of Appeals’ decision to allow a petition for writ of certiorari and invoke Rule 2 for an abuse of discretion. Bursell , 372 N.C. at 201, 827 S.E.2d at 306 ; see Grundler , 251 N.C. at 189, 111 S.E.2d at 9 (holding that certiorari is a discretionary writ). A party seeking appellate review of a trial court order in a civil proceeding must make a timely objection and file a notice of appeal. "In order to preserve an issue for appellate review, a party must have presented to the trial court a timely ... objection ...." N.C. R. App. P. 10(a)(1). "It is well settled that an error, even one of constitutional magnitude, that [the] defendant does not bring to the trial court's attention is waived and will not be considered on appeal." Bursell , 372 N.C. at 199, 827 S.E.2d at 305 (quoting State v. Bell , 359 N.C. 1, 28, 603 S.E.2d 93, 112 (2004) ). Rule 2 allows an appellate court to suspend the Rules of Appellate Procedure and reach the merits of an unpreserved issue "in a case pending before [the court]." N.C. R. App. P. 2. An appellate court, however, may only invoke Rule 2 "in exceptional circumstances" when "injustice ... appears manifest to the [c]ourt" or when the case presents "significant issues of importance in the public interest." State v. Hart , 361 N.C. 309, 315–16, 644 S.E.2d 201, 205 (2007) (quoting Steingress v. Steingress , 350 N.C. 64, 66, 511 S.E.2d 298, 299–300 (1999) ). Notably, "precedent cannot create an automatic right to review via Rule 2." State v. Campbell , 369 N.C. 599, 603, 799 S.E.2d 600, 603 (2017). "[W]hether an appellant has demonstrated that his matter is the rare case meriting suspension of our appellate rules," rather, "is always a discretionary determination to be made on a case-by-case basis." Id.

¶ 6 Further, a party appealing an order "rendered in a civil action" must "fil[e] notice of appeal with the clerk of superior court and serv[e] copies thereof upon all other parties" in a timely manner. N.C. R. App. P. 3(a). The Court of Appeals thus does not have jurisdiction to review a trial court's SBM order unless the party seeking review complies with Rule 3(a) by filing a written notice of appeal. See State v. Bowditch , 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010) (stating that the SBM program is a "civil, regulatory scheme"); Crowell Constructors, Inc. v. State ex rel. Cobey , 328 N.C. 563, 563–64, 402 S.E.2d 407, 408 (1991) (holding that when "the record does not contain a notice of appeal in compliance with Rule 3, the Court of Appeals ha[s] no jurisdiction of the appeal"). Though the Court of Appeals may issue a writ of certiorari to review a trial court's order "when the right to prosecute an appeal has been lost by failure to take timely action," N.C. R. App. P. 21(a)(1), the petition must show "merit or that error was probably committed below," Grundler , 251 N.C. at 189, 111 S.E.2d at 9 (citing In re Snelgrove , 208 N.C. 670, 672, 182 S.E. 335, 336 (1935) ). "A writ of certiorari is not intended as a substitute for a notice of appeal" because such a practice would "render meaningless the rules governing the time and manner of noticing appeals." Bishop , 255 N.C. App. at 769, 805 S.E.2d at 369.

¶ 7 The Court of Appeals majority relied upon our decision in Bursell , but that case is distinguishable. There the defendant filed a timely notice of appeal challenging the trial court's imposition of lifetime SBM on Fourth Amendment grounds. Bursell , 372 N.C. at 198, 827 S.E.2d at 304. The defendant, however, had failed to properly object to the SBM order and thus did not preserve his ability to raise that issue on appeal. Id. at 200, 827 S.E.2d at 305. The Court of Appeals invoked Rule 2 to review the defendant's unpreserved argument. Id. This Court recognized that the Court of Appeals examined the specific circumstances of that individual case:

The Court of

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