The court of appeals issued three opinions on Tuesday involving satellite-based monitoring (SBM) of sex offenders. In all three, offenders challenged trial court determinations that they had to enroll in SBM. As a threshold matter in each case the court of appeals considered whether the offender’s oral notice of appeal of the SBM determination was sufficient to bring the matter within the jurisdiction of the appellate division. In all three cases it wasn’t, but what the court did from there wasn’t the same in every case.
Before getting into the details I should say a word about appeals of SBM determinations more generally. The statutes governing SBM determinations (G.S. 14-208.40 through –208.45, especially G.S. 14-208.40A and -208.40B) do not clearly set out a right to appeal a trial court order to enroll in SBM. It wasn’t until State v. Singleton (N.C. Ct. App., 5 Jan 2010)—decided over a year and a half after the court of appeals issued its first SBM decision in State v. Williams, 190 N.C. App. 173 (2008)—that the court explicitly addressed the jurisdictional basis for SBM appeals. In Singleton, the court concluded that SBM determinations are a final judgment in a civil (not criminal) action, appealable under G.S. 7A-27(b) (“From any final judgment of a superior court . . . appeal lies of right to the Court of Appeals.”).
Then, earlier this year in State v. Brooks (N.C. Ct. App., May 18, 2010), the court concluded that under the Rules of Appellate Procedure, offenders appealing SBM orders must, as in any other civil matter, give written notice of appeal as required by Rule 3(a): “by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties.” Oral notice—sufficient in criminal actions under Rule 4(a)(1)—was deemed insufficient to confer jurisdiction on the appellate court in a civil matter such as this. The court nonetheless decided in Brooks to treat the offender’s brief as a petition for writ of certiorari and heard the appeal.
That brings us to Tuesday. In each case the offender gave oral notice of appeal at the conclusion of the SBM determination hearing. In State v. Oxendine, the court noted the insufficiency of the oral notice but decided on its own motion, “in the interest of justice,” to treat defendant’s brief as a petition for certiorari and to address the merits of his appeal. Likewise in State v. Clayton, the court noted the lack of written notice of appeal, but then granted the defendant’s request to treat his brief as a cert petition. Doing so, the court noted that State v. Bare (the first case in which the court declared SBM to be civil in nature and not punishment, decided June 16, 2009, and discussed here), Singleton, and Brooks were all decided after Clayton noticed his appeal (on March 5, 2009), and so he didn’t have any indication at that time that oral notice under Rule 4(a)(1) was improper.
In State v. Inman, though, the court dismissed the defendant’s appeal based on the lack of written notice of appeal and declined to treat the appeal as a petition for writ of cert because the brief didn’t “contain the requisite documentation to meet the requirements set forth by our Appellate Rules for consideration of a writ of certiorari.” Judge Stroud dissented, noting that the court had “previously considered purported appeals as petitions for certiorari in other cases.” (Just like Mr. Clayton, Inman gave his oral notice of appeal in March of 2009—well before Bare, Singleton, and Brooks were decided.) The dissent is a Pyrrhic victory for the defendant, though, as Judge Stroud went on to say that she would have affirmed the trial court’s order requiring lifetime SBM. The defendant abandoned his argument that that the trial court had insufficient evidence to show that he committed an aggravated offense, instead choosing to focus on constitutional arguments. And so the issue of whether Inman’s indecent liberties conviction could ever be an aggravated offense requiring lifetime SBM—which it clearly cannot be under the elements-based test set out in State v. Davison (discussed here)—was not before the court.
Going forward, defense lawyers handling SBM determinations should be sure to note their appeals in writing as required by Rule 3(a) of the Rules of Appellate Procedure.
[As an aside, the court’s summary of the facts in Inman indicated that the defendant received five consecutive 60-month probationary sentences. “[I]n other words,” the court summarized, “defendant received a total of 300 months of supervised probation.” Looking at the record (p. 36-47), it’s not clear to me that’s what the trial court ordered, but suffice it to say: periods of probation cannot be stacked. G.S. 15A-1346(a).]