State v. Williams

• Decision Date: 15 July 2014
• Docket Number: No. COA13–1280.,COA13–1280.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Robert Leroy WILLIAMS.

761 S.E.2d 662

STATE of North Carolina

v.Robert Leroy WILLIAMS.

No. COA13–1280.

Court of Appeals of North Carolina.

July 15, 2014.

Appeal by defendant from order entered 19 August 2013 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 April 2014.

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

Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant.

BRYANT, Judge.

Because continuous monitoring as a result of defendant's participation in a satellite-based monitoring program does not violate defendant's substantive due process rights and because the monitoring is rationally related to a legitimate governmental purpose, we affirm the order of the trial court imposing upon defendant enrollment in a satellite-based monitoring program for his natural life.

On 27 April 2007 in Mecklenburg County Superior Court, defendant Robert Leroy Williams entered an Alford plea to two counts of second-degree rape. The State dismissed one count of first-degree sex offense, one count of first-degree kidnapping, one count of second-degree kidnapping, and two counts of first-degree rape. The trial court entered a consolidated judgment in accordance with defendant's plea and sentenced defendant to an active term of 58 to 79 months.

On 27 April 2012, the State filed a motion to determine whether defendant was required to enroll in the sex offender satellite monitoring program. A satellite monitoring bring-back hearing was held before the Honorable Robert C. Ervin on 19 August 2013 during the criminal session of Mecklenburg County Superior Court.

During the hearing, the State presented the following background for defendant's second-degree rape conviction. Defendant and his victim were neighbors. The victim had previously rejected defendant's advances and request for a date. Defendant invited the victim to his residence to watch a video. Once inside, defendant extended a further invitation to view hats in his bedroom. In his bedroom, defendant kissed the victim, and the victim attempted to pull away. Defendant then produced a knife and later a gun. Defendant forced the victim to perform fellatio and engage in sexual intercourse. When allowed to leave, the victim immediately reported the forced sexual assault.

In an order entered 19 August 2013, the trial court made judicial findings that defendant's conviction for second-degree rape was a reportable conviction as defined by G.S. 14–208.6(4) and that his was an aggravated offense. Defendant was ordered to enroll in satellite-based monitoring for the remainder of his natural life. Defendant appeals.

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We first note that although defendant filed a written notice of appeal from the order directing his enrollment in a satellite-based monitoring program, defendant filed with this Court a petition for writ of certiorari to allow review of the trial court order, asserting that his written notice of appeal was defective. Specifically, defendant states that his notice of appeal fails to indicate to which court his appeal was to be taken and that he served his notice on the State via email. For the reasons stated herein, we determine defendant's notice of appeal is not fatally defective; therefore, we deny defendant's petition for writ of certiorari and proceed to the merits of his appeal.

Any party entitled by law to appeal from a judgment or order rendered by a judge in superior or district court in a civil action or in a special proceeding may take appeal by giving notice of appeal within the time, in the manner, and with the effect provided in the rules of appellate procedure.

N.C. Gen.Stat. § 1–279.1 (2013). As to the content of the notice of appeal, our Rules of Appellate Procedure state that the notice “shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken....” N.C. R.App. P. 3(d) (2013).

“The ‘fairly inferred’ doctrine ensures that a violation of Rule 3(d) results in dismissal only where the appellee is prejudiced by the appellant's mistake.” Phelps Staffing, LLC v. S.C. Phelps, Inc., 217 N.C.App. 403, 410, 720 S.E.2d 785, 791 (2011). In Phelps Staffing, the plaintiff failed to designate within the notice of appeal the court to which the appeal was to be taken.

Plaintiff's notice of appeal does not designate any court as the proper venue for its appeal. Plaintiff's error is a complete omission of the content requirement as set forth in Rule 3(d). However, this Court has liberally construed this requirement and has specifically held that a plaintiff's failure to designate this Court in its notice of appeal is not fatal to the appeal where the plaintiff's intent to appeal can be fairly inferred and the defendants are not mislead by the plaintiff's mistake.

Id. at 410, 720 S.E.2d at 791.

Here, the State's response to defendant's petition for writ of certiorari does not indicate that it was misled by defendant's failure to indicate the court to which the appeal was to be made. The State does not contest defendant's right to appeal and even suggests that despite the cited defects, this Court may grant a writ of certiorari to review the matter.

As to the service of his notice of appeal upon the opposing party, defendant acknowledges that he served his notice of appeal on the State by email.

“The requirement of timely filing and service of notice of appeal is jurisdictional....” Smith v. Smith, 43 N.C.App. 338, 339, 258 S.E.2d 833, 835 (1979) (citation omitted). However, a dissenting opinion adopted by our Supreme Court held that “the service of the Notice of Appeal is a matter that may be waived by the conduct of the parties.” Hale v. Afro–Am. Arts Int'l, 110 N.C.App. 621, 625, 430 S.E.2d 457, 459 (Wynn, J., dissent), rev'd for the reasons stated in the dissenting opinion,335 N.C. 231, 436 S.E.2d 588 (1993). The dissenting opinion proposed that the service of the notice of appeal was akin to the service of a complaint conferring personal jurisdiction upon a trial court. “When the defendant has been duly served with summons personally within the State, or has accepted service or has voluntarily appeared in court, jurisdiction over the person exists and the court may proceed to render a personal judgment....” Id. at 625, 430 S.E.2d at 460 (citation and quotations omitted). “[B]y analogy ... where the appellee failed, by motion or otherwise, to raise [an] issue as to service of notice in either the trial court or in this Court and has proceeded to file a brief arguing the merits of the case, ... [the appellee] has waived service of notice [of appeal]....” Id. at 626, 430 S.E.2d at 460.

Here, in its response to defendant's petition, the State acknowledges that defendant's notice of appeal was served via email but does not further contest the service. Furthermore, the State filed a brief addressing the merits of defendant's arguments presented on appeal. Thus, the State has waived service of notice of appeal. See id.

Accordingly, as defendant's intent to appeal can be fairly inferred and the State provides no indication it was misled by the defendant's mistake, we do not dismiss defendant's appeal on the basis of a defect in the notice of appeal. See Phelps Staffing, LLC, 217 N.C.App. at 410–11, 720 S.E.2d at 791. And, as the State has waived service of the notice of appeal, see Afro–Am. Arts Int'l, Inc., 110 N.C.App. at 625, 430 S.E.2d at 460 (Wynn, J., dissent), we deny defendant's petition for writ of certiorari and proceed to the merits of his appeal. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197–98, 657 S.E.2d 361, 365 (2008) (“A jurisdictional default ... precludes the appellate court from acting in any manner other than to dismiss the appeal.... [However,] [w]e stress that a party's failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal.” (citations omitted)).

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On appeal, defendant argues that the imposition of lifetime satellite-based monitoring violates his substantive due process rights by continuous government monitoring or in the alternative, by failing to be rationally related to the purpose of protecting the public from recidivism.

Defendant first argues that, as applied to him, North Carolina General Statutes, section 14–208.40B(c), violates substantive due process by impermissibly infringing upon his right to be free from government monitoring of his location when monitoring is not narrowly tailored to the purpose of protecting the public from recidivism, and lifetime monitoring was imposed without consideration of defendant's low risk for reoffending. We disagree.

“An appellate court reviews conclusions of law pertaining to a constitutional matter de novo.” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (citation omitted).

Pursuant to the United States Constitution, “[n]o State shall make or enforce any law which shall ... deprive any person of life, liberty, or property, without due process of law....” U.S. Const., amend. XIV, '1. The North Carolina Constitution provides that “[n]o person shall be ... in any manner deprived of his life, liberty, or property, but by the law of the land.” N.C. Const. art. I, § 19. Our Supreme Court has held that “[t]he term ‘law of the land’ as used in Article I, Section 19, of the Constitution of North Carolina, is synonymous with ‘due process of law’ as used in the Fourteenth Amendment to the Federal Constitution.” Rhyne v. K–Mart Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (citation and quotations omitted).

The Due Process Clause provides two types of protection—substantive and procedural due process. See State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998).

“Substantive due process” protection prevents the government...