State v. Williams

NO. COA13-1280

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
Nos. 06 CRS 221584, 221587
ROBERT LEROY WILLIAMS

Appeal by defendant from order entered 19 August 2013 by

Judge Robert C. Ervin in Mecklenburg County Superior Court.

Heard in the Court of Appeals 22 April 2014.

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

Appellate Defender Staples Hughes, by Assistant Appellate
Defender James R. Grant, for defendant-appellant.

BRYANT, Judge.

Because continuous monitoring as a result of defendant’s

participation in a satellite-based monitoring program does not

violate defendant’s substantive due process rights and because

the monitoring is rationally related to a legitimate

governmental purpose, we affirm the order of the trial court

imposing upon defendant enrollment in a satellite-based

monitoring program for his natural life.
 -2-
On 27 April 2007 in Mecklenburg County Superior Court,

defendant Robert Leroy Williams entered an Alford plea to two

counts of second-degree rape. The State dismissed one count of

first-degree sex offense, one count of first-degree kidnapping,

one count of second-degree kidnapping, and two counts of first-

degree rape. The trial court entered a consolidated judgment in

accordance with defendant’s plea and sentenced defendant to an

active term of 58 to 79 months.

On 27 April 2012, the State filed a motion to determine

whether defendant was required to enroll in the sex offender

satellite monitoring program. A satellite monitoring bring-back

hearing was held before the Honorable Robert C. Ervin on 19

August 2013 during the criminal session of Mecklenburg County

Superior Court.

During the hearing, the State presented the following

background for defendant’s second-degree rape conviction.

Defendant and his victim were neighbors. The victim had

previously rejected defendant’s advances and request for a date.

Defendant invited the victim to his residence to watch a video.

Once inside, defendant extended a further invitation to view

hats in his bedroom. In his bedroom, defendant kissed the

victim, and the victim attempted to pull away. Defendant then
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produced a knife and later a gun. Defendant forced the victim

to perform fellatio and engage in sexual intercourse. When

allowed to leave, the victim immediately reported the forced

sexual assault.

In an order entered 19 August 2013, the trial court made

judicial findings that defendant’s conviction for second-degree

rape was a reportable conviction as defined by G.S. 14-208.6(4)

and that his was an aggravated offense. Defendant was ordered

to enroll in satellite-based monitoring for the remainder of his

natural life. Defendant appeals.

____________________________________

We first note that although defendant filed a written

notice of appeal from the order directing his enrollment in a

satellite-based monitoring program, defendant filed with this

Court a petition for writ of certiorari to allow review of the

trial court order, asserting that his written notice of appeal

was defective. Specifically, defendant states that his notice

of appeal fails to indicate to which court his appeal was to be

taken and that he served his notice on the State via email. For

the reasons stated herein, we determine defendant’s notice of

appeal is not fatally defective; therefore, we deny defendant’s
 -4-
petition for writ of certiorari and proceed to the merits of his

appeal.

Any party entitled by law to appeal
from a judgment or order rendered by a judge
in superior or district court in a civil
action or in a special proceeding may take
appeal by giving notice of appeal within the
time, in the manner, and with the effect
provided in the rules of appellate
procedure.

N.C. Gen. Stat. § 1-279.1 (2013). As to the content of the

notice of appeal, our Rules of Appellate Procedure state that

the notice “shall specify the party or parties taking the

appeal; shall designate the judgment or order from which appeal

is taken and the court to which appeal is taken . . . .” N.C.

R. App. P. 3(d) (2013).

“The ‘fairly inferred’ doctrine ensures that a violation of

Rule 3(d) results in dismissal only where the appellee is

prejudiced by the appellant's mistake.” Phelps Staffing, LLC v.

S.C. Phelps, Inc., 217 N.C. App. 403, 410, 720 S.E.2d 785, 791

(2011). In Phelps Staffing, the plaintiff failed to designate

within the notice of appeal the court to which the appeal was to

be taken.

Plaintiff's notice of appeal does not
designate any court as the proper venue for
its appeal. Plaintiff's error is a complete
omission of the content requirement as set
forth in Rule 3(d). However, this Court has
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liberally construed this requirement and has
specifically held that a plaintiff's failure
to designate this Court in its notice of
appeal is not fatal to the appeal where the
plaintiff's intent to appeal can be fairly
inferred and the defendants are not mislead
by the plaintiff's mistake.

Id. at 410, 720 S.E.2d at 791.

Here, the State’s response to defendant’s petition for writ

of certiorari does not indicate that it was misled by

defendant’s failure to indicate the court to which the appeal

was to be made. The State does not contest defendant’s right to

appeal and even suggests that despite the cited defects, this

Court may grant a writ of certiorari to review the matter.

As to the service of his notice of appeal upon the opposing

party, defendant acknowledges that he served his notice of

appeal on the State by email.

“The requirement of timely filing and service of notice of

appeal is jurisdictional . . . .” Smith v. Smith, 43 N.C. App.

338, 339, 258 S.E.2d 833, 835 (1979) (citation omitted).

However, a dissenting opinion adopted by our Supreme Court held

that “the service of the Notice of Appeal is a matter that may

be waived by the conduct of the parties.” Hale v. Afro-Am. Arts

Int'l, 110 N.C. App. 621, 625, 430 S.E.2d 457, 459 (Wynn, J.,

dissent), rev'd for the reasons stated in the dissenting
 -6-
opinion, 335 N.C. 231, 436 S.E.2d 588 (1993). The dissenting

opinion proposed that the service of the notice of appeal was

akin to the service of a complaint conferring personal

jurisdiction upon a trial court. “When the defendant has been

duly served with summons personally within the State, or has

accepted service or has voluntarily appeared in court,

jurisdiction over the person exists and the court may proceed to

render a personal judgment . . . .” Id. at 625, 430 S.E.2d at

460 (citation and quotations omitted). “[B]y analogy . . .

where the appellee failed, by motion or otherwise, to raise [an]

issue as to service of notice in either the trial court or in

this Court and has proceeded to file a brief arguing the merits

of the case, . . . [the appellee] has waived service of notice

[of appeal] . . . .” Id. at 626, 430 S.E.2d at 460.

Here, in its response to defendant’s petition, the State

acknowledges that defendant’s notice of appeal was served via

email but does not further contest the service. Furthermore,

the State filed a brief addressing the merits of defendant’s

arguments presented on appeal. Thus, the State has waived

service of notice of appeal. See id.

Accordingly, as defendant’s intent to appeal can be fairly

inferred and the State provides no indication it was misled by
 -7-
the defendant's mistake, we do not dismiss defendant’s appeal on

the basis of a defect in the notice of appeal. See Phelps

Staffing, LLC, ___ N.C. App. at ___, 720 S.E.2d at 791. And,

as the State has waived service of the notice of appeal, see

Afro-Am. Arts Int'l, Inc., 110 N.C. App. at 625, 430 S.E.2d at

460 (Wynn, J., dissent), we deny defendant’s petition for writ

of certiorari and proceed to the merits of his appeal. See

Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C.

191, 197—98, 657 S.E.2d 361, 365 (2008) (“A jurisdictional

default . . . precludes the appellate court from acting in any

manner other than to dismiss the appeal. . . . [However,] [w]e

stress that a party's failure to comply with nonjurisdictional

rule requirements normally should not lead to dismissal of the

appeal.” (citations omitted)).

____________________________________

On appeal, defendant argues that the imposition of lifetime

satellite-based monitoring violates his substantive due process

rights by continuous government monitoring or in the

alternative, by failing to be rationally related to the purpose

of protecting the public from recidivism.

Defendant first argues that, as applied to him, North

Carolina General Statutes, section 14-208.40B(c), violates
 -8-
substantive due process by impermissibly infringing upon his

right to be free from government monitoring of his location when

monitoring is not narrowly tailored to the purpose of protecting

the public from recidivism, and lifetime monitoring was imposed

without consideration of defendant’s low risk for reoffending.

We disagree.

“An appellate court reviews conclusions of law pertaining

to a constitutional matter de novo.” State v. Bowditch, 364

N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (citation omitted).

Pursuant to the United States Constitution, “[n]o State

shall make or enforce any law which shall . . . deprive any

person of life, liberty, or property, without due process of law

. . . .” U.S. CONST., amend. XIV, ' 1. The North Carolina

Constitution provides that “[n]o person shall be . . . in any

manner deprived of his life, liberty, or property, but by the

law of the land.” N.C. CONST. art. I, § 19. Our Supreme Court

has held that “[t]he term ‘law of the land’ as used in Article

I, Section 19, of the Constitution of North Carolina, is

synonymous with ‘due process of law’ as used in the Fourteenth

Amendment to the Federal Constitution.” Rhyne v. K-Mart Corp.,

358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (citation and

quotations omitted).
 -9-
The Due Process Clause provides two types of protection –

substantive and procedural due process. See State v. Thompson,

349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998).

“Substantive due process” protection
prevents the government from engaging in
conduct that shocks the conscience, or
interferes with rights implicit in the
concept of ordered liberty. “Procedural due
process” protection ensures that when
government action depriving a person of
life, liberty, or property survives
substantive due process review, that action
is implemented in a fair manner.

Id.

Our established method of substantive-due-
process analysis has two primary features:
First, we have regularly observed that the
Due Process Clause specially protects those
fundamental rights and liberties which are,
objectively, deeply rooted in this Nation's
history and tradition and implicit in the
concept of ordered liberty, such that
neither liberty nor justice would exist if
they were sacrificed. Second, we have
required in substantive-due-process cases a
careful description of the asserted
fundamental liberty interest.

Washington v. Glucksberg, 521 U.S. 702, 720—21, 138 L. Ed. 2d

772, 787—88 (1997) (citations and quotations omitted). “By

extending constitutional protection to an asserted right or

liberty interest, we, to a great extent, place the matter

outside the arena of public debate and legislative action. We

must therefore exercise the utmost care whenever we are asked to
 -10-
break new ground in this field.” Id. at 720, 138 L. Ed. 2d at

787 (citation and quotations omitted).

Defendant argues that General Statutes, section 14-

208.40B(c), the statute authorizing the court to compel

defendant’s enrollment in a lifetime satellite-based monitoring

(“SBM”) program, impermissibly infringes upon his fundamental

right to be free from continuous surveillance.

In support of his contention, defendant cites Justice

Alito’s concurrence in United States v. Jones, 565 U.S. ___, 181

L. Ed. 2d 911 (2012). The Jones Court considered whether a law

enforcement agency’s monitoring of a vehicle while on public

streets by benefit of an attached GPS locator amounted to a

search within the meaning of the Fourth Amendment. The majority

concluded that the agency had conducted a search, and because

the intrusion occurred in the absence of a valid warrant, it was

a violation of Fourth Amendment prohibitions against

unreasonable searches and seizures. In his concurrence, Justice

Alito proposed that, as opposed to short-term monitoring, long-

term GPS monitoring and cataloguing of a vehicle’s every

movement impinged upon society’s expectation of privacy. Id. at

___, 181 L. Ed. 2d at 934 (Alito, J., concurrence). We note

that as to the application of the Fourth Amendment in the
 -11-
context of SBM, our Court has declared United States v. Jones to

be inapposite. See State v. Jones, ___ N.C. App. ___, ___, 750

S.E.2d 883, 886 (2013) (citing State v. Martin, ___ N.C. App.

___, 735 S.E.2d 238 (2012) (holding SBM is not a violation of

the defendant’s Fourth Amendment right to be free from

unreasonable searches and seizures)).

We also note that in United States v. Jones, the Court was

analyzing an event that took place in the context of a law

enforcement agency’s investigation of narcotics trafficking.

The concerns articulated in Justice Alito’s concurrence are

distinguishable from the circumstance for which defendant seeks

our review: the continuous monitoring of a person who has been

convicted and sentenced for an aggravated offense, as defined by

section 14-208.6. See N.C. Gen. Stat. ' 14-208.6(1a) (2013)

(“‘Aggravated offense’ means any criminal offense that includes

either of the following: (i) engaging in a sexual act involving

vaginal, anal, or oral penetration with a victim of any age

through the use of force or the threat of serious violence; or

(ii) engaging in a sexual act involving vaginal, anal, or oral

penetration with a victim who is less than 12 years old.”).

Defendant’s participation in an SBM program following his

conviction for an aggravated offense – forcible rape – does not
 -12-
infringe upon any fundamental right. See Jones, ___ N.C. App.

___, 750 S.E.2d 883; Martin, ___ N.C. App. ___, 735 S.E.2d 238.

Defendant’s asserted “fundamental right to be free from

continuous government surveillance” is not one we have ever

recognized in the context of SBM. On the contrary, “an

imposition of restrictive measures on sex offenders adjudged to

be dangerous is a legitimate nonpunitive governmental objective

and has been historically so regarded.” State v. Bare, 197 N.C.

App. 461, 467, 677 S.E.2d 518, 524 (2009) (citation and

quotations omitted). Therefore, defendant cannot establish that

his participation in an SBM program infringes upon a fundamental

right. We overrule this portion of defendant’s substantive due

process argument.

However, defendant argues in the alternative that General

Statutes section 14-208.40B(c) as applied to him violates

substantive due process because it is not rationally related to

its purpose of protecting the public from recidivism. Defendant

contends that because section 14-208.40B(c) authorizes mandatory

lifetime participation without consideration of defendant’s risk

of reoffending, the statute is constitutionally unsound. We

disagree.
 -13-
“[U]nless legislation involves a suspect classification or

impinges upon fundamental personal rights, it is presumed

constitutional and need only be rationally related to a

legitimate state interest.” Huntington Prop., LLC v. Currituck

Cnty., 153 N.C. App. 218, 229, 569 S.E.2d 695, 703 (2002)

(citation and quotations omitted). “[T]he rational basis

standard . . . ‘merely’ requires that a regulation bear some

rational relationship to a conceivable legitimate interest of

government.” Bald Head Island, Ltd. v. Vill. of Bald Head

Island, 175 N.C. App. 543, 550, 624 S.E.2d 406, 410—11 (2006)

(citation and quotations omitted).

Defendant cites South Carolina v. Dykes, 744 S.E.2d 505

(S.C. 2013), for the proposition that South Carolina’s SMB

statute was deemed unconstitutional to the extent that it

imposed upon the defendant lifetime SBM without (1) a

determination of her dangerousness prior to being enrolled or

(2) an opportunity for judicial review at a later date to

address the necessity of her remaining enrolled in the program.

The South Carolina Court held that “[i]n light of the [South

Carolina] General Assembly's stated purpose of protecting the

public from sex offenders and aiding law enforcement, we find

that the initial mandatory imposition of satellite monitoring
 -14-
for certain child-sex crimes satisfies the rational relationship

test.” Id. at 510. However, “[t]he complete absence of any

opportunity for judicial review to assess a risk of re-offending

. . . is arbitrary and cannot be deemed rationally related to

the legislature's stated purpose of protecting the public from

those with a high risk of re-offending.” Id. (citation

omitted).

Because our North Carolina statutory scheme provides for

both a determination of dangerousness prior to imposing

enrollment in a satellite-based monitoring program and the

possibility for review for later termination from satellite-

based monitoring, any analysis of Dykes, 744 S.E.2d 505, is

inapposite. We now look to relevant North Carolina General

Statutes regarding satellite-based monitoring.

Pursuant to section 14-208.40B(c), when an offender is

convicted of a reportable conviction as defined by G.S. 14-

208.6(4), the district attorney, representing the Division of

Adult Correction, shall schedule a hearing in superior court.

[In this hearing,] the court shall determine
if the offender falls into one of the
categories described in G.S. 14-208.40(a).
The court shall hold the hearing and make
findings of fact pursuant to G.S. 14-
208.40A.

If the court finds that (i) the offender has
 -15-
been classified as a sexually violent
predator pursuant to G.S. 14-208.20, (ii)
the offender is a recidivist, (iii) the
conviction offense was an aggravated
offense, or (iv) the conviction offense was
a violation of G.S. 14-27.2A or G.S. 14-
27.4A, the court shall order the offender to
enroll in satellite-based monitoring for
life.

N.C. Gen. Stat. § 14-208.40B(c).

Defendant does not contest that his was a “reportable

conviction” as defined by section 14-208.6(4). See id. § 14-

208.6(4)(a.) (“‘Reportable conviction’ means: ‘A final

conviction for an offense against a minor, a sexually violent

offense, or an attempt to commit any of those offenses unless

the conviction is for aiding and abetting.’”). Defendant also

does not challenge the trial court’s finding that his was an

aggravated offense. See id. ' 14-208.6(1a) (“‘Aggravated

offense’ means any criminal offense that includes either of the

following: (i) engaging in a sexual act involving vaginal, anal,

or oral penetration with a victim of any age through the use of

force or the threat of serious violence . . . .”). Defendant’s

argument is limited to a purported failure of the North Carolina

SBM scheme, as applied here, to assess defendant’s risk of

reoffending before imposing lifetime SBM and an inadequate

process for petitioning to be removed from SBM.
 -16-
In State v. Bowditch, our Supreme Court stated that “[t]he

legislature's intent in establishing SBM may be inferred from

the declaration in the authorizing legislation that it ‘shall be

known as “An Act To Protect North Carolina's Children/Sex

Offender Law Changes.”’ Ch. 247, sec. 1(a), 2006 N.C. Sess. Laws

at 1066.” 364 N.C. 335, 342, 700 S.E.2d 1, 6 (2010). The Court

reasoned that it was the intent of our legislature “to protect

our State's children from the recidivist tendencies of convicted

sex offenders . . . .” Id.

Pursuant to section 14-208.40(a),

[t]he [SBM] program shall be designed to
monitor . . . offenders as follows:

(1) Any offender who is convicted of a
reportable conviction as defined by G.S. 14-
208.6(4) and who is required to register
under Part 3 of Article 27A of Chapter 14 of
the General Statutes because the defendant
is classified as a sexually violent
predator, is a recidivist, or was convicted
of an aggravated offense as those terms are
defined in G.S. 14-208.6.

N.C. Gen. Stat. § 14-208.40(a)(1) (2013).

It would appear that our General Assembly has determined

that an offender convicted of a particular classification of

crimes is to be subject to lifetime satellite-based monitoring.

Implicit in this statutory scheme is a recognition of an

offender’s risk of re-offending if he has committed a certain
 -17-
type of offense. This defendant, by statute, is subject to SBM

for life. Further, the statutory scheme provides that if the

court finds the offense committed is not an aggravated offense

(along with other exceptions) and the offender is not a

recidivist, the court shall conduct a risk assessment to

determine whether and for what period of time a defendant should

be subject to SBM. See id. ' 14-208.40A(d),(e). Similar to the

South Carolina policy to protect the public from sex offenders

as stated by the Dykes Court, the North Carolina policy set

forth in the SMB statutes is the same, and therefore, we believe

the imposition of SBM to be rationally related to the purpose of

protecting children and the more general public. See K-Mart

Corp., 358 N.C. at 180—81, 594 S.E.2d at 15 (“[T]he rational

basis test or rational basis review applies, and this Court must

inquire whether distinctions which are drawn by a challenged

statute ... bear some rational relationship to a conceivable

legitimate governmental interest. Rational basis review is

satisfied so long as there is a plausible policy reason for the

classification, the legislative facts on which the

classification is apparently based rationally may have been

considered to be true by the governmental decisionmaker, and the

relationship of the classification to its goal is not so
 -18-
attenuated as to render the distinction arbitrary or

irrational.” (citation and quotations omitted)).

In further response to defendant’s argument that there is

an inadequate process for petitioning to be removed from SBM, we

note that our General Assembly has provided an avenue for

petitioners seeking removal from SBM. Per General Statutes,

section 14-208.43, “Request for termination of satellite-based

monitoring requirement,”

[a]n offender described by G.S. 14-
208.40(a)(1) or G.S. 14-208.40(a)(3) who is
required to submit to satellite-based
monitoring for the offender's life may file
a request for termination of monitoring
requirement with the Post-Release
Supervision and Parole Commission. The
request to terminate the satellite-based
monitoring requirement and to terminate the
accompanying requirement of unsupervised
probation may not be submitted until at
least one year after the offender: (i) has
served his or her sentence for the offense
for which the satellite-based monitoring
requirement was imposed, and (ii) has also
completed any period of probation, parole,
or post-release supervision imposed as part
of the sentence.

N.C. Gen. Stat. § 14-208.43(a) (2013). Again, we hold the

imposition of SBM as applied to defendant is rationally related

to the purpose of protecting children and the general public and

does not impermissibly infringe upon defendant’s due process

rights. Accordingly, defendant’s arguments are overruled.
 -19-
Affirmed.

Judges HUNTER, Robert C., and STEELMAN concur.