Opinion
No. COA10-1355
Filed 21 June 2011 This case not for publication
On writ of certiorari to review order entered 21 July 2010 by Judge Christopher M. Collier in Union County Superior Court. Heard in the Court of Appeals 30 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Lisa Y. Harper, for the State. Richard E. Jester, for defendant-appellant.
Union County No. 10 CRS 838.
Where defendant failed to include in the record all documents necessary for this Court's review, the appeal must be dismissed.
I. Factual and Procedural Background
On 23 October 2000, Jimmy Treadway (defendant) pled guilty in Transylvania County to indecent liberties with a child and was sentenced to 19 to 23 months imprisonment. On 29 March 2007, defendant pled guilty in Buncombe County to second-degree sexual exploitation of a minor. The trial court sentenced defendant to 34 to 41 months imprisonment, which defendant served.
On 26 February 2010, the district attorney was given notice that defendant would have a hearing "in Union County, Superior Court on April 12, 2010, for the following purpose: a. To determine if the offender falls into one of the categories described in G.S. 14-208.40(a)." Defendant subsequently appeared pro se before Judge Tanya Wallace on 12 April 2010. Defendant told Judge Wallace that he was sent a "letter . . . from Raleigh." He then stated, "I'm not on any kind of probation or anything, so it's kind of a surprise for me." Judge Wallace informed defendant that he was in court for a satellite-based monitoring (SBM) hearing and that he was entitled to counsel if he was determined to be indigent. After defendant filled out an affidavit of indigency, Judge Wallace appointed counsel for defendant and continued the SBM hearing.
Judge Christopher Collier held an SBM hearing on 21 July 2010. Defendant, through counsel, stipulated that he had convictions for indecent liberties with a child and second-degree sexual exploitation of a minor. Counsel then argued that defendant was not a recidivist under N.C. Gen. Stat. § 14-208.6(4) and, therefore, not subject to SBM. After hearing evidence and arguments from counsel, Judge Collier determined that defendant was a recidivist under the statute and was subject to lifetime SBM.
The same day as the hearing, the trial court entered an AOC-CR-616 form entitled "Judicial Findings and Order As To Satellite-Based Monitoring When There Has Been No Prior Determination." In its form order, the trial court found that: (1) "defendant was convicted of a reportable conviction as defined by G.S. 14-208.6(4)[;]" and (2) "defendant is a recidivist" which is "one of the categories requiring satellite-based monitoring under G.S. 14-208.40[.]" The trial court ordered defendant to enroll in SBM for the remainder of his natural life. Defendant, without counsel, returned to court the next day and gave oral notice of appeal. Defendant filed a petition for writ of certiorari on 10 December 2010.
II. Grounds for Appellate Review
Initially, we note that this Court recently held that oral notice of appeal is insufficient to preserve a defendant's right to appeal from an SBM order because SBM is a civil, regulatory scheme. State v. Brooks, ___ N.C. App. ___, ___, 693 S.E.2d 204, 206 (2010) (holding that a defendant must give written notice of appeal pursuant to N.C.R. App. P. 3(a) in cases arising from a trial court order requiring a litigant to enroll in SBM). Because defendant failed to file a written notice of appeal consistent with N.C.R. App. P. 3(a), we must dismiss his appeal. Id. However, recognizing that defendant's SBM hearing took place two months after this Court's decision in Brooks and defendant was without counsel when he gave oral notice of appeal, we allow defendant's petition for writ of certiorari, in the interest of justice, and review the trial court's SBM order. See State v. Cowan, ___ N.C. App. ___, ___, 700 S.E.2d 239, 242 (2010).
III. Proper Notice of SBM Hearing
In his first argument, defendant contends that the trial court erred in holding an SBM hearing when he did not receive proper notice of the SBM hearing as required by N.C. Gen. Stat. § 14-208.40B. We are without a sufficient record to review this argument.
This Court has previously held that "requiring [a] defendant to submit to SBM implicates a protected liberty interest." State v. Stines, ___ N.C. App. ___, ___, 683 S.E.2d 411, 413 (2009). N.C. Gen. Stat. § 14-208.40B(a) requires that the Department of Correction (DOC) "shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a)." N.C. Gen. Stat. § 14-208.40B(a) (2009). Once DOC has made such a determination, the statute further requires:
[T]he district attorney, representing the Department, shall schedule a hearing in superior court for the county in which the offender resides. The Department shall notify the offender of the Department's determination and the date of the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14-208.7. The hearing shall be scheduled no sooner than 15 days from the date the notification is mailed.
N.C. Gen. Stat. § 14-208.40B(b) (2009). "Thus, the statute requires notice of two facts: (1) the hearing date and (2) the Department's determination with respect to N.C. Gen. Stat. § 14-208.40(a)." Stines, ___ N.C. App. at ___, 683 S.E.2d at 415. Where such notice is not given, the defendant is entitled to a new SBM hearing. Id. at ___, 683 S.E.2d at 418.
In the instant case, defendant appeared for his April and July 2010 SBM hearings, but failed to include a copy of the written notice sent to him in the record on appeal. It is well-established that our review of defendant's argument is limited to what appears in the record. See N.C.R. App. P. 9(a) (2010) ("In appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9.") . It is the appellant's duty "to see that the record is properly made up and transmitted to the Court." State v. Stubbs, 265 N.C. 420, 423, 144 S.E.2d 262, 265 (1965) (citations omitted). We note that the record does contain the notice of the April 2010 SBM hearing to the district attorney. However, nothing in the record indicates that the notice to the district attorney was equivalent to the notice sent to defendant pursuant to N.C. Gen. Stat. § 14-208.40B(b).
Without reviewing the written notice sent to defendant, we cannot consider the merits of defendant's argument that he was not given proper notice of his SBM hearing in accordance with N.C. Gen. Stat. § 14-208.40(b). This argument is dismissed.
IV. Ex Post Facto Law
In his second argument, defendant contends that subjecting him to SBM based on his 2000 and 2007 convictions is inconsistent with constitutional protections against ex post facto laws. Our Supreme Court has held that "subjecting defendants to the SBM program does not violate constitutional prohibitions against ex post facto laws." State v. Bowditch, 364 N.C. 335, 336, 700 S.E.2d 1, 2 (2010). This argument is without merit.
DISMISSED IN PART; AFFIRMED IN PART.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).