Opinion
No. COA11–1131.
2012-04-17
STATE of North Carolina v. Clay Mitchell OLLIS.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. J. Edward Yeager, Jr., for defendant-appellant.
Appeal by defendant from order entered 18 April 2011 by Judge C. Philip Ginn in Watauga County Superior Court. Heard in the Court of Appeals 26 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. J. Edward Yeager, Jr., for defendant-appellant.
HUNTER, JR., Robert N., Judge.
On 14 July 2010, defendant entered a guilty plea to one count of first degree rape of a child. The trial court deferred sentencing until defendant received an evaluation to assist the court in determining whether he is a sexually violent offender. The trial court entered judgment pursuant to defendant's guilty plea on 18 April 2011, and sentenced defendant to a term of 288 to 355 months imprisonment. The court also ordered defendant to pay $100,000 in restitution to the victim and ordered defendant to be enrolled for life in a satellite-based monitoring (“SBM”) program upon his release from imprisonment.
Defendant filed notice of appeal on 19 April 2011 from the judgment entered against him. However, the trial court entered an order on 20 April 2011 dismissing defendant's notice of appeal after concluding that defendant had no right of appeal from his guilty plea. Defendant filed a second notice of appeal on 5 May 2011, appealing from the 18 April 2011 order directing that he enroll in an SBM program upon his release from prison.
On 26 August 2011, defendant filed a petition for writ of certiorari with this Court seeking review of the criminal judgment entered against him and the trial court's 20 April 2011 order dismissing his notice of appeal. This Court denied defendant's petition by order entered 9 September 2011.
Defendant filed his record on appeal with this Court on 15 September 2011 and filed an Anders brief on 16 November 2011. On 28 October 2011, the State filed a motion to dismiss defendant's appeal. In its motion, the State only moved to dismiss defendant's appeal as to his criminal judgment and the 20 April 2011 order dismissing defendant's notice of appeal from his criminal judgment. The State has not moved to dismiss defendant's appeal from the SBM order. Because defendant's appeal from his criminal judgment has already been dismissed, and because this Court has denied defendant's petition for writ of certiorari to review his judgment and the 20 April 2011 order dismissing his appeal from the judgment, we deny the State's motion.
In his Anders brief on appeal, defendant's counsel stated that the brief filed “is with respect to the order that [defendant] be subjected to satellite based monitoring for life. Undersigned counsel can find no issue with respect to that order.” However, SBM orders are civil in nature, and an appellant cannot request Anders review of such orders. See State v. Clark, –––N.C.App. ––––, ––––, 714 S.E.2d 754, 761 (2011) (“[S]ince an SBM-related proceeding is civil rather than criminal in nature, an oral notice pursuant to N.C.[ ]R.[ ]App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court in a case arising from a trial court order requiring a litigant to enroll in SBM.” (citations and quotation marks omitted)); State v. Singleton, 201 N.C.App. 620, ––––, 689 S.E.2d 562, 565 (“[T]his Court has held that the SBM statutes establish a civil regulatory regime and not a means of punishment for a crime.” (citations omitted)), disc. review improvidently allowed, 364 N.C. 418, 700 S.E.2d 226 (2010); In re Harrison, 136 N.C.App. 831, 832, 526 S.E.2d 502, 502 (2000) (“[T]his jurisdiction has not extended the procedures and protections afforded in Anders and Kinch to civil cases.”). Additionally, by filing a brief with this Court that fails to present any arguments with regard to the SBM order, defendant has abandoned his appeal from that order. N.C. R.App. P. 28(a) (“Issues not presented and discussed in a party's brief are deemed abandoned.”). Accordingly, we dismiss defendant's appeal.
Dismissed. Judges BRYANT and GEER concur.
Report per Rule 30(e).