Opinion
No. COA10–1055.
2012-08-7
STATE of North Carolina v. Matthew Lee BECKELHEIMER.
Attorney General Roy Cooper, by Elizabeth F. Parsons, Assistant Attorney General, for the State. Thomas R. Sallenger, for Defendant.
Appeal by defendant from order entered 11 February 2010 by Judge Allen Baddour, Jr., in Chatham County Superior Court. Heard in the Court of Appeals 22 February 2011. Attorney General Roy Cooper, by Elizabeth F. Parsons, Assistant Attorney General, for the State. Thomas R. Sallenger, for Defendant.
ERVIN, Judge.
Defendant Matthew Lee Beckelheimer appeals from an order entered by the trial court on 11 February 2010 in which Defendant was required to enroll in lifetime satellite-based monitoring. On appeal, Defendant contends that the trial court's order violates the constitutional prohibitions against the enactment of ex post facto laws and against placing him in jeopardy twice for the same offense. After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that Defendant is not entitled to relief.
I. Factual Background
On 23 June 2008, the Chatham County grand jury returned bills of indictment charging Defendant with taking indecent liberties with a child in File Nos. 08 CRS 3773, 08 CRS 3774, and 08 CRS 50129 and with committing a statutory sexual offense in File No. 08 CRS 50128. On 1 June 2009, the Chatham County grand jury returned a superseding indictment in File No. 08 CRS 50128 charging Defendant with first degree sexual offense.
The charges against Defendant came on for trial at the 3 August 2009 criminal session of the Chatham County Superior Court before Judge D. Jack Hooks, Jr. On 7 August 2009, the jury returned verdicts convicting Defendant as charged. At a sentencing hearing conducted following the return of the jury's verdicts, the trial court sentenced Defendant to a minimum term of 192 months and a maximum term of 240 months imprisonment in the custody of the North Carolina Department of Correction based upon Defendant's conviction for first-degree sexual offense in File No. 08 CRS 50128; consolidated the indecent liberties convictions in File Nos. 08 CRS 3773, 3774, and 50129 for judgment; and sentenced Defendant to a minimum term of sixteen months and a maximum term of twenty months imprisonment in the custody of the North Carolina Department of Correction, with this indecent liberties sentence to be served concurrently with Defendant's sentence for first degree sexual offense. Defendant noted an appeal to this Court from the trial court's judgments.
On 11 February 2010, Defendant was returned to the Chatham County Superior Court for the purpose of allowing the trial court to address the issue of whether Defendant should be required to enroll in satellite-based monitoring pursuant to N.C. Gen.Stat. § 14–208.40B. After a hearing, the trial court entered an order requiring Defendant to enroll in satellite-based monitoring for the remainder of his natural life. On the same date, the trial court entered a new judgment in the first degree sexual offense case, once again sentencing Defendant to a minimum term of 192 months and a maximum term of 240 months imprisonment in the custody of the North Carolina Department of Correction. Defendant noted a separate appeal to this Court from the trial court's satellite-based monitoring order.
The trial court entered a new judgment in the first degree sexual offense case to correct a clerical error pertaining to the date of offense. We note that the new first degree sexual offense judgment contains apparent clerical errors, given that it fails to include a new judgment in the indecent liberties cases and indicates at two separate locations that Defendant had entered a guilty plea instead of being convicted by a jury. We also note that the record contains no indication that the trial court gave Defendant credit for time served between the entry of Judge Hooks' original judgment in the first degree sexual offense case and the entry of the trial court's new judgment in that case. However, since Defendant has not attempted to appeal from the new judgment or argued that the new judgment is affected by any legal or clerical errors in his brief, we need not address any issues that might otherwise arise from the entry of the new judgment in the first degree sexual offense case.
On 19 April 2011, a panel of this Court filed an opinion granting Defendant a new trial with respect to the issue of his guilt of first degree sexual offense and three counts of taking indecent liberties with a child. State v. Beckelheimer, ––– N.C.App. ––––, 712 S.E.2d 216 (2011). On 9 May 2011, the State filed a petition with the Supreme Court seeking discretionary review of our decision to grant Defendant a new trial. On 18 May 2011, this Court entered an order staying further proceedings in this case pending disposition of the State's discretionary review petition. On 26 January 2012, the Supreme Court granted the State's discretionary review petition. On 14 June 2012, the Supreme Court filed an opinion reversing this Court's decision to grant Defendant a new trial and remanding the case to this Court for consideration of Defendant's remaining challenges to the trial court's judgments. State v. Beckelheimer, ––– N.C. ––––, 726 S.E.2d 156 (2012). On 7 August 2012, this Court issued an opinion finding no error in the trial court's judgments. State v. Beckelheimer, ––– N.C.App. ––––, ––– S.E.2d –––– (No. COA10–203–2) (2012).
II. Legal Issues
A. Appealability
According to our decision in State v. Brooks, 204 N.C.App. 193, 194–195, 693 S.E.2d 204, 206 (2010):
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.... SBM hearings and proceedings are not criminal actions, but are instead a “civil regulatory scheme.” ... “Therefore, for purposes of appeal, a[n] SBM hearing is not a ‘criminal trial or proceeding[.]’ “ ... [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[.]’
(quoting N.C.R.App. P. 3(a); State v. Bare, 197 N.C.App. 461, 472, 677 S.E.2d 518, 527 (2009), disc. rev. denied,364 N.C. 436, 702 S.E.2d 492 (2010); and State v. Singleton, 201 N.C.App. 620, 625, 689 S.E.2d 562, 565,disc. review improvidently allowed, 364 N.C. 418, 700 S.E.2d 226 (2010)) (other citation omitted). N.C.R.App. P. 3(a) provides that appeals from civil actions and special proceedings must “be in writing, filed with the Clerk of Superior Court, and served upon all other parties.” Thus, in order to properly note an appeal from a trial court order requiring a defendant to enroll in satellite-based monitoring, the defendant must file a written notice of appeal.
A careful review of the transcript and the record on appeal provides no indication that Defendant either filed a written notice of appeal or even attempted to note an appeal orally. Although Defendant asserts that he “gave notice of appeal to the North Carolina Court of Appeals as written on the appellate entries form document on February 11, 2010,” “the fact that the record contains appellate entries does not, without more, suffice to show that Defendant properly appealed from the trial court's judgment to this Court,” State v. Hughes, ––– N.C.App. ––––, ––––, 707 S.E.2d 777, 779 (2011) (citing In re Me.B., M.J., Mo.B., 181 N.C.App. 597, 600, 640 S.E.2d 407, 409 (2007), and State v. Blue, 115 N.C.App. 108, 113, 443 S.E.2d 748, 751 (1994)), and certainly does not constitute compliance with N.C.R.App. P. 3. As a result, given that “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, [Defendant's] appeal [from the trial court's satellite-based monitoring order] must be dismissed.” Brooks, 204 N.C.App. at 195, 693 S.E.2d at 206 (citation omitted).
In apparent recognition of his failure to properly note an appeal to this Court from the trial court's order, Defendant filed a petition for writ of certiorari on 12 October 2010 in which he requested us to consider the merits of his appeal. “While this Court cannot hear defendant's direct appeal, it does have the discretion to consider the matter by granting a petition for writ of certiorari.” State v. McCoy, 171 N.C.App. 636, 638, 615 S .E.2d 319, 320,appeal dismissed,360 N.C. 73, 622 S.E.2d 626 (2005). “The 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. P. 21(a). In view of the fact that the trial court's satellite-based monitoring order was entered prior to our decision in Brooks, we conclude, as we have on several other occasions involving similar factual situations, that “defendant at the time of his SBM hearing did not have any indication that” he was required to comply with N.C.R.App. P. 3 in order to challenge the trial court's satellite-based monitoring order on appeal, State v. Clayton, 206 N.C.App. 300, 303, 697 S.E.2d 428, 431 (2010), and that it would be unfair to require Defendant to have anticipated our decision in Brooks at the time that he had to note his appeal from the trial court's order. As a result, we conclude that Defendant's certiorari petition should be allowed and that we should proceed to address Defendant's challenges to the trial court's satellite-based monitoring order on the merits.
B. Satellite–Based Monitoring Order
On appeal, Defendant contends that the trial court erred by ordering him to enroll in satellite-based monitoring on the grounds that the imposition of such a requirement violated his state and federal constitutional protections against the enactment of ex post facto laws and his right not to be placed in jeopardy twice for the same offense guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 19 of the North Carolina Constitution. Each of Defendant's challenges to the trial court's satellite-based monitoring order is predicated on the assumption that the satellite-based monitoring regime constitutes a punishment. This assumption has been squarely rejected by both the Supreme Court of North Carolina and this Court.
In addition, Defendant asserts in one of the argument headings in his brief that the trial court's satellite-based monitoring order violated his rights under Article I, Section 19 and Article XI, Section 1 of the North Carolina Constitution. As a result of the fact that the only argument that Defendant actually advances in the portion of his brief that follows this argument heading relies on double jeopardy principles and the fact that, to the extent that we are able to understand the nature of Defendant's argument from his bare citations to Article I, Section 19 and Article XI, Section 1 of the North Carolina Constitution, it would appear that this aspect of Defendant's argument also hinges on the assertion that satellite-based monitoring is a punishment rather than a civil and regulatory scheme, we conclude that, to the extent that Defendant's reliance on Article I, Section 19 and Article XI, Section 1 of the North Carolina Constitution constitutes a separate challenge to the trial court's satellite-based monitoring order, we believe that the authorities discussed in the text compel rejection of Defendant's contention.
In State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010), the Supreme Court of North Carolina held that the satellite-based monitoring program “was enacted with the intent to create a civil, regulatory scheme” and that “subjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution.” In addition, “an argument that SBM violates double jeopardy would fail because SBM is a civil regulatory scheme.” State v. Wagoner, 199 N.C.App. 321, 332, 683 S.E.2d 391, 400 (2009), aff'd per curiam, 364 N.C. 422, 700 S.E.2d 222 (2010). This Court is obviously bound by relevant decisions of the Supreme Court of North Carolina, Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985), and this Court. In re Appeal from Civil Penalty, 323 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that, “[w]here a panel of the Court of Appeals has decided the same issue, albeit it in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court”). As a result, we conclude that Defendant's constitutional challenges to the trial court's satellite-based monitoring order lack merit and that the trial court's order should be affirmed.
AFFIRMED. Judges HUNTER, ROBERT C. and STEPHENS concur.
Report per Rule 30(e).