State v. Mills

NO. COA13-590

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Buncombe County
No. 02 CRS 62338
WILLIAM ROSCOE MILLS, JR.

Appeal by defendant from order entered 22 January 2013 by

Judge Mark E. Powell in Buncombe County Superior Court. Heard in

the Court of Appeals 20 November 2013.

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

Jon W. Myers for defendant.

HUNTER, Robert C., Judge.

Defendant William Mills, Jr. appeals the order entered 22

January 2013 requiring him to enroll in Satellite-Based Monitoring

(“SBM”) for the remainder of his life. On appeal, defendant argues

that the trial court’s order must be vacated because: (1) the trial

court erred in finding that defendant was given proper notice of

the basis for which the Department of Correction believed him

eligible for SBM and that defendant was given notice of the date

of the scheduled SBM hearing; (2) the trial court lacked subject
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matter jurisdiction to hold the SBM hearing; (3) the trial court

erred in concluding defendant had adequate and proper notice of

the SBM hearing in violation of his due process rights; and (4)

the SBM statutes violate the prohibition against ex post facto

laws and double jeopardy as applied. After careful review, we

affirm the trial court’s order.

Background

On 2 June 2003, defendant pled guilty to one count of second

degree rape and three counts of second degree sex offense in

exchange for the consolidation of the offenses for sentencing, a

sentence in the presumptive range, and an agreement by the State

to not prosecute defendant for any additional charges involving

other victims. The trial court sentenced him to a minimum term of

73 months to a maximum term of 97 months imprisonment.

After defendant served his sentence, the trial court

conducted a bring-back hearing to determine defendant’s

eligibility for enrollment in an SBM program. The State’s petition

requesting the hearing is not included in the record on appeal.

Prior to the hearing, defendant’s counsel filed a motion to dismiss

the petition, arguing that: (1) retroactive application of the SBM

program violates the ex post facto provision of the United States

and North Carolina Constitutions; (2) ordering defendant to enroll
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in an SBM program violates the double jeopardy clause; (3) the SBM

hearing violates defendant’s right to a jury trial and due process

by increasing his punishment for prior offenses without submitting

the issue to a jury; and (4) the SBM program interferes with

defendant’s right to travel and the right to be free from

warrantless searches.

The matter came on for hearing on 22 January 2013 before Judge

Mark E. Powell in Buncombe County Superior Court. The trial court

marked the following findings on a preprinted, standard form: (1)

defendant was convicted of a reportable offense but the sentencing

court made no determination of whether defendant should be required

to enroll in SBM; (2) the Department of Correction (the “DOC”)

determined that defendant fell into at least one of the categories

requiring SBM pursuant to N.C. Gen. Stat. § 14-208.40 and gave

notice to defendant of this category; (3) the District Attorney

scheduled a hearing in the county of defendant’s residence and the

DOC provided notice to defendant required under 14-208.40B, and

the hearing was not held sooner than 15 days after that notice;

and (4) the offense defendant was convicted of was an aggravated

offense. Based on these findings, the trial court ordered

defendant enroll in SBM for the remainder of his natural life.
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Additionally, the trial court denied defendant’s motion to dismiss

the petition. Defendant timely appealed.

Arguments

Defendant first argues that there was no evidence presented

at the determination hearing establishing that defendant had been

provided adequate notice of the basis for which the DOC believed

him eligible for SBM or that defendant had been served the notice

of the hearing in compliance with N.C. Gen. Stat. § 14-208.40B(b).

Specifically, defendant contends that none of the findings marked

on the standard preprinted form were supported by competent

evidence at the hearing. Based on the record, we conclude that

defendant has waived his right to raise this issue on appeal

because he failed to object to these findings at the SBM hearing.

Initially, we note that our Supreme Court has classified an

SBM hearing as a civil regulatory proceeding. State v. Bowditch,

364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010); State v. Arrington, __

N.C. App. __, __, 741 S.E.2d 453, 457 (2013). For SBM enrollment,

“the trial court is statutorily required to make findings of fact

to support its legal conclusions.” State v. Morrow, 200 N.C. App.

123, 126, 683 S.E.2d 754, 757 (2009), aff’d, 364 N.C. 424, 700

S.E.2d 224 (2010). On appeal, this Court “review[s] the trial

court’s findings of fact to determine whether they are supported
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by competent record evidence[.]” State v. Kilby, 198 N.C. App.

363, 367, 679 S.E.2d 430, 432 (2009).

Pursuant to N.C. Gen. Stat. § 14-208.40B(b),

[i]f the [DOC] determines that the offender
falls into one of the categories described in
[N.C. Gen. Stat. §] 14-208.40(a), the district
attorney, representing the [DOC], shall
schedule a hearing in superior court for the
county in which the offender resides. The
[DOC] shall notify the offender of the [DOC’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. Receipt of
notification shall be presumed to be the date
indicated by the certified mail receipt. Upon
the court’s determination that the offender is
indigent and entitled to counsel, the court
shall assign counsel to represent the offender
at the hearing pursuant to rules adopted by
the Office of Indigent Defense Services.

Moreover, this Court has concluded that “N.C. Gen. Stat. §

14–208.40B(b)’s requirement that the [DOC] ‘notify the offender of

[its] determination’ mandates that the [DOC], in its notice,

specify the category set out in N.C. Gen. Stat. § 14–208.40(a)

into which the [DOC] has determined the offender falls and briefly

state the factual basis for that conclusion.” State v. Stines,

200 N.C. App. 193, 204, 683 S.E.2d 411, 418 (2009).

At the hearing, both defendant and his counsel were present.

The following colloquy took place:
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THE COURT: I want to state for the record
that—I’ll just go down through the form. And
I’m reading this out loud so I don’t make a
mistake when I go through it. The defendant
was convicted of a reportable conviction, but
no determination was made back in 2002. Check
number 2. I think I should, but——

[THE STATE]: Yes, I believe you would, Your
Honor.

THE COURT: Sir, do you wish to say anything
about that? Counsel, do you wish to respond
to me checking number 2 or not?

[DEFENSE COUNSEL]: No, sir.

THE COURT: I’m just not as familiar with this
form. I’ve checked number 2 and 3 on the form.
As to number 4, the defendant falls into at
least one of the categories requiring
satellite-based monitoring in that the offense
of which the defendant was convicted was an
aggravated offense. Based on the foregoing,
the defendant is subject to satellite-based
monitoring for the remainder of his natural
life. Counsel, anything else?

[THE STATE]: No, Your Honor.

As defendant correctly notes, there was no evidence presented

at the hearing establishing that defendant received proper notice,

by certified mail, of the hearing or that defendant received notice

of the basis upon which the State believed him eligible for SBM.

However, the record is clear that defendant failed to object at

the hearing when the trial court was reviewing the findings of

fact on the preprinted form. The trial court even invited
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defendant to argue or challenge them by asking defendant’s counsel

whether he wanted to “say anything about that.” However, defense

counsel declined to do so. Furthermore, neither the petition nor

the notice of the SBM hearing were included in the record on appeal

even though defendant’s motion to dismiss referenced the petition.

“It is well settled that a silent record supports a presumption

that the proceedings below are free from error, and it is the duty

of the appellant to see that the record is properly made up and

transmitted to the appellate court.” State v. Perry, 316 N.C. 87,

107, 340 S.E.2d 450, 462 (1986). Finally, we find it pertinent

that defendant made a motion to dismiss the State’s petition for

SBM but included no argument that he was not afforded proper notice

of the hearing nor did he argue that he received no notice of the

category in which he fell that made him eligible for SBM.

Consequently, defendant has waived any objection to these findings

on appeal.

Next, defendant argues that the trial court lacked subject

matter jurisdiction to conduct defendant’s SBM hearing because

there was no competent evidence presented at the hearing that

defendant resided in Buncombe County. Because N.C. Gen. Stat. §

14-208.40B(b)’s requirement that an SBM hearing be brought in the

county in which the offender resides addresses venue, not subject
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matter jurisdiction, defendant’s failure to object at the hearing

waives this argument on appeal.

N.C. Gen. Stat. § 14–208.40B(b) requires that SBM petition

hearings be held “in superior court for the county in which the

offender resides.” Defendant argues that although he did not

object at the hearing that it was not being held in the county in

which he resided, this issue may be raised for the first time on

appeal since it addresses subject matter jurisdiction.

Defendant’s argument relies on his contention that only the

superior court in the county in which he resides has subject matter

jurisdiction over the hearing. However, defendant confuses the

concepts of subject matter jurisdiction and venue. “Subject matter

jurisdiction involves the authority of a court to adjudicate the

type of controversy presented by the action before it.” In re

McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003)

(quoting Haker–Volkening v. Haker, 143 N.C. App. 688, 693, 547

S.E.2d 127, 130 (2001)). “The question of subject matter

jurisdiction may be raised at any time, even in the Supreme Court.”

Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d

83, 85-86 (1986) (citation omitted). In contrast, “[v]enue means

the place wherein the cause is to be tried” and “is not

jurisdictional.” Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d
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334, 337 (1953). A defendant who does not challenge venue at the

trial level fails to preserve the issue for appellate review. See

generally, State v. Walters, 357 N.C. 68, 78, 588 S.E.2d 344, 350

(2003); In re Estate of Hodgin, 133 N.C. App. 650, 652, 516 S.E.2d

174, 175 (1999). Thus, subject matter jurisdiction and venue are

two distinct concepts, each with its own rules regarding the

ability of a party to challenge it for the first time on appeal.

Pursuant to N.C. Gen. Stat. § 14–208.40B(b), while the

superior court has subject matter jurisdiction over SBM hearings,

the requirement that the hearing be held in the superior court in

the county in which the offender resides relates to venue. As

noted, SBM hearings are civil in nature, Bowditch, 364 N.C. at

352, 700 S.E.2d at 13, and our Courts have recognized the

distinction between subject matter jurisdiction and venue in other

common civil proceedings, see generally, Smith v. Smith, 56 N.C.

App. 812, 813, 290 S.E.2d 390, 391 (1982) (noting that, while the

district court has subject matter jurisdiction over divorce

actions, “G.S. § 50-3, which states that summons for divorce

proceedings shall be returnable to the court of the county in which

either plaintiff or defendant resides, and G.S. § 50-8, which

states that a complainant who is a nonresident of this State shall

bring any divorce action in the county of defendant’s residence,
 -10-
are not jurisdictional, and relate only to venue.”); In re Estate

of Hodgin, 133 N.C. App. at 651, 516 S.E.2d at 175 (concluding

that although “the clerk of superior court in each county has

exclusive original jurisdiction over the administration of

estates[,]” venue is based on the county in which the decedent was

domiciled at the time of his death or in the county in which the

decedent left property and assets if he is not a resident of the

State).

While N.C. Gen. Stat. § 14-208.40B(b) confers subject matter

jurisdiction to the superior court, it also sets out the method

for determining the proper venue. Defendant is mistakenly

characterizing his venue challenge as a challenge to the trial

court’s subject matter jurisdiction in order to preserve his right

to raise this issue for the first time on appeal. However, venue

“is waivable by any party . . . if objection thereto is not made

‘in apt time.’” In re Estate of Hodgin, 133 N.C. App. at 652, 516

S.E.2d at 175. Accordingly, since defendant failed to challenge

the venue of his SBM hearing either in his motion to dismiss or in

arguments at the hearing, he has waived this issue on appeal.

Next, defendant argues that the trial court erred by ordering

him to enroll in SBM when he did not receive adequate and proper

notice of the date of the SBM hearing as required by law in
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violation of the Fourteenth Amendment of the United States

Constitution and Article 1, section 19 of the North Carolina

Constitution. We conclude that defendant has waived his right to

raise this constitutional challenge on appeal.

Our appellate courts will only review constitutional

questions raised and passed upon at trial. N.C. R. App. P.

10(b)(1) (2012); State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d

535, 539 (1982); State v. Wilkerson, 363 N.C. 382, 420, 683 S.E.2d

174, 198 (2009). Here, in his motion to dismiss the State’s

petition, defendant puts forth no argument that his constitutional

protection of due process was violated by the State’s failure to

provide him proper notice of the hearing as specified in N.C. Gen.

Stat. § 14-208.40B(b). Furthermore, defendant did not raise any

issue related to notice at the SBM hearing. Therefore, defendant

has failed to preserve this constitutional issue for appeal.

Finally, defendant also argues that SBM violates the ex post

facto and double jeopardy prohibitions of the United States and

North Carolina Constitutions. Defendant acknowledges that the

North Carolina Supreme Court has previously held that the SBM

program is a civil regulatory scheme that does not implicate

constitutional protections against either ex post facto laws or

double jeopardy, Bowditch, 364 N.C. 335, 700 S.E.2d 1, but raises
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this issue for “preservation purposes.” As we are bound by the

decisions of our Supreme Court, Dunn v. Pate, 334 N.C. 115, 118,

431 S.E.2d 178, 180 (1993), defendant’s argument is overruled.

Conclusion

Because defendant failed to object at trial to the trial

court’s finding that he was afforded proper notice of the hearing

and of the category into which he fell that made him eligible for

SBM, defendant has waived this issue on appeal. Since defendant

failed to challenge the venue of the hearing at the trial level,

he waived his right to raise it for the first time on appeal. We

will not address defendant’s contention that his due process rights

were violated when the State did not follow the proper statutory

requirements of notice because he did not raise this issue before

the trial court either at the SBM hearing or in his motion to

dismiss. Finally, defendant’s argument that the imposition of SBM

violates the prohibition against ex post facto laws and double

jeopardy is overruled based on Bowditch.

AFFIRMED.

Judges CALABRIA and HUNTER, JR., ROBERT N. concur.