711 S.E.2d 207
No. COA10-937North Carolina Court of Appeals
Filed 15 March 2011 This case not for publication
Onslow County No. 05 CRS 54013.
On writ of certiorari by Defendant to review order entered 26 March 2010 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 14 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State.
Guy J. Loranger for Defendant.
STEPHENS, Judge.
Defendant Clarence Randell Williford appeals from the trial court’s order imposing lifetime satellite-based monitoring (“SBM”). Although we dismiss his appeal for failure to give proper notice of appeal, we allow Defendant’s petition for writ of certiorari in order to review the SBM order. Following review, we reverse and remand for a new hearing.
On 23 June 2006, Defendant pled guilty to taking indecent liberties with a child and crime against nature. Defendant stipulated to the existence of two aggravating factors, and the trial court entered judgment and imposed an aggravated-range term
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of 30 to 36 months in prison for the indecent liberties conviction and a consecutive aggravated-range term of 10 to 12 months in prison for the crime against nature conviction. In the judgments, the trial court gave Defendant credit for 413 days of pre-judgment confinement. The Department of Correction (“DOC”) took Defendant into custody on 7 July 2006 and released him on 23 September 2008 when his sentence had expired.
On 11 September 2009, DOC sent Defendant a letter notifying him that he was required to appear for an SBM hearing. In pertinent part, the letter stated:
The Department of Correction has made the initial determination that you meet the criteria set out in General Statute 14-208.40(a), which requires your enrollment in Satellite Based Monitoring. Therefore, a Determination Hearing has been scheduled in Onslow County Superior Court on Thursday, October 26, 2009 at 9:00 am. The Court will review your case to make a determination concerning your eligibility for Satellite Based Monitoring.
(Emphasis in original). The letter did not specify which of the three criteria categories listed in N.C. Gen. Stat. § 14-208.40(a) (2009) applied to defendant.
The case came on for an SBM hearing on 26 March 2010. At the hearing, Defendant objected to being subjected to SBM, asserting that, at the time of his 2006 conviction, not even registration as a sex offender was required for his offenses. Defendant also asked the trial court to stay any order imposing SBM until appellate court resolution of whether ordering SBM for offenders convicted prior to enactment of the relevant statute constituted ex post
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facto punishment. The trial court declined to impose a stay and found that: Defendant had been convicted of a reportable offense as defined by section 14-208.6 (4); DOC had determined that Defendant fell into one of the statutory categories of offenders required to submit to SBM; DOC had given Defendant proper notice of the hearing; and Defendant was a recidivist. Accordingly, the trial court ordered Defendant to enroll in lifetime SBM.
At the conclusion of the hearing, Defendant gave oral notice of appeal. On 26 March 2010, the trial court signed appellate entries in which it recognized the oral notice of appeal and appointed the Appellate Defender to represent Defendant on appeal. On 15 September 2010, Defendant filed a petition for writ of certiorari with this Court.
As an initial matter, we note that this Court has 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). Accordingly, because Defendant was required to file a written notice of appeal consistent with N.C.R. App. P. 3(a) and failed to do so, we must dismiss his appeal. Id. However, recognizing that Defendant’s SBM hearing took place two months prior to this Court’s decision in Brooks and in the interest of justice, we allow Defendant’s petition for writ o certiorari and review the trial court’s SBM order. See State v. Cowan, ___ N.C. App. ___, 700 S.E.2d 239 (2010).
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In arguments I and IV of his brief, Defendant contends that the trial court lacked subject matter jurisdiction to conduct the SBM hearing because DOC failed to provide him with notice of which of the section 14-208.40(a) categories applied to him or to explain the basis for that determination, and that the trial court erred by finding that the notice provided by DOC was adequate. The State concedes that DOC failed to provide Defendant with adequate notice, requiring reversal and remand for a new SBM hearing, but correctly notes the error is not jurisdictional See State v. Wooten, 194 N.C. App. 524, 528, 669 S.E.2d 749, 751
(2008), disc. review denied, cert. dismissed, 363 N.C. 138, 676 S.E.2d 308
(2009).
“No process is due a person who is deprived of an interest by official action unless that interest is protected by law, i.e., unless it is an interest in life, liberty or property.” Henry v. Edmisten, 315 N.C. 474, 480, 340 S.E.2d 720, 725 (1986) (citing Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90 (1971)). 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).
In an SBM proceeding, N.C. Gen. Stat. § 14-208.40B(a) requires that DOC “shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a).” After DOC makes 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
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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.
N.C. Gen. Stat. § 14-208.40B(b) (2009) (emphasis added). “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 this case, DOC informed Defendant that it had determined he fell within one of the section 14-208.40(a) categories, but did not specify which category. Thus, DOC’s notice did not protect Defendant’s due process rights. Further, the trial court erred by finding that DOC had provided Defendant with adequate notice of the SBM hearing. Accordingly, we reverse the trial court’s SBM order and remand the matter for a new SBM hearing.
Defendant also argues that subjecting him to SBM based on his 2006 convictions is inconsistent with constitutional protections against ex post facto laws. However, 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). Accordingly, we overrule this argument.
Reversed and remanded for new SBM hearing.
Judges ERVIN and BEASLEY concur.
Reported per Rule 30(e).
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