State v. Springle

• Decision Date: 05 January 2016
• Docket Number: No. COA15–597.,COA15–597.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Robert Hughes SPRINGLE, Defendant.

244 N.C.App. 760

781 S.E.2d 518

STATE of North Carolina,

v.Robert Hughes SPRINGLE, Defendant.

No. COA15–597.

Court of Appeals of North Carolina.

Jan. 5, 2016.

Attorney General, Roy Cooper, by Special Deputy Attorney General, Joseph Finarelli, for the State.

Amanda S. Zimmer, Southern Pines, for defendant-appellant.

BRYANT, Judge.

Where the State fails to demonstrate the substantial similarity of defendant's out-of-state convictions to North Carolina crimes and where the trial court fails to determine, either orally or in writing, that the out-of-state convictions are substantially similar to North Carolina offenses for purposes of enrollment in satellite-based monitoring, we remand for resentencing.

On 7 October 2013, true bills of indictment were issued against Robert Hughes Springle, defendant, for two counts of felonious indecent exposure by an offender over the age of eighteen with a victim under the age of sixteen in violation of N.C. Gen.Stat. § 14–190.9(a1) (2013), amended by 2015 N.C. Sess. Laws 2015–250. On 4 September 2014, defendant pled guilty to both offenses in exchange for an active term of imprisonment of eight to ten months, with credit for time served in Case No. 11 CRS 55435, and a suspended sentence with supervised probation in Case No. 13 CRS 54303. The Honorable Benjamin Alford, Judge presiding, found a factual basis existed and accepted the plea. Judge Alford subsequently completed a Judgment and Commitment form for each offense consistent with the plea agreement defendant entered into with the State.

During the 4 September 2014 hearing, Judge Alford noted on the record that defendant was "a recidivist" and, therefore, subject to satellite-based monitoring for the remainder of his natural life. The court, however, failed to note those findings on the corresponding AOC–CR615 form, Judicial Findings and Order for Sex Offenders—Suspended Sentence.¹

On 10 November 2014, the Honorable Jack W. Jenkins presided over a "bring-back hearing" to resolve the question about defendant's enrollment in the satellite-based monitoring program. At the hearing, the State alleged, "[a]t 11 CRS 55435, Your Honor, I think under the [s]tatute, he is a recidivist. The State would maintain that he is, and that requires a lifetime on monitoring." The transcript does not reflect that any evidence was handed up to the court at that time to support this allegation. However, the sentencing worksheet reflects prior convictions for felony sex offense against a child and three separate prior convictions of indecent exposure. The court inquired, "But it doesn't seem to be a dispute that he is a recidivist and, therefore, it's lifetime?" Defense counsel indicated that there was no dispute. A written order was entered requiring defendant to register as a sex offender for life and to enroll in satellite-based monitoring for the remainder of his natural life.

On 9 February 2015, a hearing was held for the purpose of terminating defendant's probation, Judge Alford presiding. At the hearing, defendant's trial counsel informed the court of the following: (1) defendant wished to appeal the 10 November 2014 satellite-based monitoring enrollment order; (2) trial counsel had prepared a simple Notice of Appeal for defendant; and (3) while defendant signed the document, his trial counsel filed it with the Clerk of Court. However, that Notice of Appeal did not contain a certificate of service reflecting that it had been served on the State.

Defendant's counsel further stated that he had informed defendant there were no grounds upon which to appeal and that counsel personally considered the appeal to be "groundless," but asked Judge Alford to "look at it and see if you want to appoint counsel" for the appeal. Judge Alford appointed the Appellate Defender and ordered a transcript of the prior hearings. Defendant noted an appeal of the 10 November 2014 order on lifetime-SBM.

Petition for Writ of Certiorari

Rule 21(a)(1) of our Appellate Procedures provides, "[t]he writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action...." N.C. R. App. 21(a)(1) (2015); see State v. Hammonds, 218 N.C.App. 158, 162, 720 S.E.2d 820, 823 (2012) (allowing the defendant's petition for writ of certiorari when "it [was] readily apparent that [the] defendant ha[d] lost his appeal through no fault of his own").

On 1 June 2015, defendant filed a petition for writ of certiorari and alleged a violation of N.C. R.App. P. 4 related to the defective service of his notice of appeal. On 11 June 2015, the State filed a response to defendant's petition for writ of certiorari, also noting that notices of appeal of SBM orders are governed by Rule 3 of the North Carolina Rules of Appellate Procedure, as they are civil in nature. The State requested that this Court deny defendant's petition. On 12 June 2015, defendant filed a reply to the State's response. For the reasons that follow, we grant defendant's petition for writ of certiorari.

Our Court has interpreted SBM hearings and proceedings as civil, as opposed to criminal, actions, for purposes of appeal. Therefore, "a defendant must give notice of appeal pursuant to N.C. R.App. P. 3(a)," from an SBM proceeding. State v. Brooks, 204 N.C.App. 193, 194–95, 693 S.E.2d 204, 206 (2010) (citing N.C. R.App. P. 3(a) ). "A party must comply with the requirements of Rule 3 to confer jurisdiction on an appellate court." In re Moore, 234 N.C.App. 37, 36, 758 S.E.2d 33, 36 (2014) (citing Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) ). "Thus, failure to comply with Rule 3 is a jurisdictional default that prevents this Court ‘from acting in any manner other than to dismiss the appeal.’ " Id. (quoting Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co.,

362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) ).

However, a defect in a notice of appeal "should not result in loss of the appeal as long as the intent to appeal ... can be fairly inferred from the notice and the appellee is not misled by the mistake." Phelps Staffing, LLC v. S.C. Phelps, Inc., 217 N.C.App. 403, 410, 720 S.E.2d 785, 791 (2011) (quoting Smith v. Indep. Life Ins. Co., 43 N.C.App. 269, 274, 258 S.E.2d 864, 867 (1979) ) (internal quotation marks omitted); see also In re M.B., ––– N.C.App. ––––, ––––, 771 S.E.2d 615, 623 (2015) (noting that "this Court's prior holdings make clear that a notice of appeal is not defective if ‘intent to appeal can be fairly inferred’ " (quoting Phelps, 217 N.C.App. at 410, 720 S.E.2d at 791 )); State v. Williams, ––– N.C.App. ––––, ––––, 761 S.E.2d 662, 664 (2014) (declining to dismiss the defendant's appeal on the basis of a defect in the notice of appeal because defendant's appeal could be fairly inferred and the State provided no indication that it was misled by the defendant's mistake).

Here, the State concedes that it has "suffered no prejudice" as a result of defendant's defective notice of appeal, which we interpret to mean that the State was not misled by the defective notice. Therefore, as defendant's notice of appeal was defective "through no fault of his own," see Hammonds, 218 N.C.App. at 162, 720 S.E.2d at 823, and the State was not misled as a result thereof, we grant certiorari to permit review of the lifetime-SBM order entered against defendant.

_________________________

On appeal, defendant argues (I) that the trial court's finding that he was a recidivist was not supported by competent evidence and, therefore, cannot support the conclusion that defendant must submit to lifetime sex-offender registration and satellite-based monitoring, and (II) that defendant did not receive effective assistance of counsel.

I

Defendant first argues that the trial court's conclusion that he was a recidivist was not supported by competent evidence and, therefore, cannot support the conclusion that he must submit to lifetime sex-offender registration and satellite-based monitoring. Specifically, defendant contends that the conclusion that he was a recidivist was not supported by findings made by the trial court as to which prior conviction qualified defendant as a recidivist and, further, that a stipulation to a prior record level worksheet reflecting out-of-state convictions cannot constitute a legal conclusion that a particular out-of-state conviction is "substantially similar" to a particular North Carolina felony or misdemeanor.² We agree.

On appeal from an order imposing satellite-based monitoring, this Court reviews "the trial court's findings of fact to determine whether they are supported by competent record evidence, and we review the trial court's conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found." State v. Kilby, 198 N.C.App. 363, 367, 679 S.E.2d 430, 432 (2009) (quoting State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004) ) (internal quotation marks omitted).

For purposes of requiring satellite-based monitoring, the State has the burden of presenting any evidence to the court that the offender is a recidivist. N.C. Gen.Stat. § 14–208.40A(a) (2015). After receiving the evidence, the court "shall determine" if the offender is a recidivist "and, if so, shall make a finding of fact of that determination...." N.C.G.S. § 14–208.40A(b). A recidivist is defined as "a person who has a prior conviction for an offense that is described in G.S. 14–208.6(4)." N.C. Gen.Stat. § 14–208.6(2b) (2015). Under N.C. Gen.Stat. § 14–208.6(4), a prior, reportable conviction includes

[a] final conviction in another state of an offense, which if committed in this State, is substantially similar to an offense against a minor or a sexually violent offense as defined by this section, or a final conviction in another state of an offense that requires registration under the sex offender

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