Opinion
No. COA10-1035
Filed 5 April 2011 This case not for publication
Appeal by defendant from order entered 26 April 2010 by Judge Paul L. Jones in Greene County Superior Court. Heard in the Court of Appeals 10 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci, for the State. W. Michael Spivey for defendant appellant.
Greene County No. 06-CRS-50039.
Christopher Czyzewski ("defendant") appeals from the trial court's order requiring him to enroll in satellite-based monitoring ("SBM") for the remainder of his natural life. Because the record fails to show that defendant received proper notice prior to the hearing, we vacate the trial court's order.
I. Background
On 22 May 2006, defendant pled no contest to two counts of indecent liberties with a child and was sentenced to two consecutive terms of imprisonment of 18 to 22 months. Defendant completed his sentences and was released by the Department of Correction on 26 May 2009.
On 26 April 2010, the trial court held a hearing to determine whether defendant was required to submit to SBM. During this hearing, the Assistant District Attorney stated that the victims of defendant's crimes were 9 and 10 years old and that one of the offenses involved vaginal penetration. The trial court found that, because there was vaginal penetration of a child under 12 years of age, defendant's conviction was an aggravated offense under N.C. Gen. Stat. § 14-208.6. At the conclusion of the hearing, the trial court ordered defendant to submit to SBM for the remainder of his life.
Defendant gave oral notice of appeal on 26 April 2010. On 30 August 2010, defendant filed a petition for writ of certiorari requesting that if this Court finds his oral notice of appeal to be insufficient, we address the merits of his appeal in the interest of justice.
II. Grounds for Appellate Review
Defendant gave oral notice of appeal at the SBM hearing. On 18 May 2010, this Court filed its opinion in State v. Brooks, ___ N.C. App. ___, ___, 693 S.E.2d 204, 206 (2010) holding that SBM hearings are not criminal actions, but civil regulatory proceedings in which a defendant is required to give written notice of appeal with the clerk of superior court and serve copies of such notice upon all parties pursuant to N.C. R. App. P. 3(a). Brooks, ___ N.C. App. at ___, 693 S.E.2d at 206. Defendant's oral notice of appeal is insufficient to confer jurisdiction on this Court. However, we recognize that the proper method of appealing an SBM order was not entirely clear until Brooks. See id. Therefore, in the interest of justice, we grant defendant's request and address the merits of this appeal. See N.C. R. App. P. 21(a)(1) (permitting review when the right to prosecute an appeal has been lost by failure to take timely action).
III. Analysis
Defendant argues that the trial court lacked subject matter jurisdiction to impose SBM. Defendant also assigns error to the trial court's finding that he had been convicted of an aggravated offense pursuant to N.C. Gen. Stat. § 14-208.6 and contends that SBM violates the constitutional prohibition against ex post facto laws.
A. Subject Matter Jurisdiction
Defendant contends that the trial court did not have subject matter jurisdiction to conduct the SBM hearing. The issue of subject matter jurisdiction can be raised at any time, even for the first time on appeal. State v. Webber, 190 N.C. App. 649, 650-51, 660 S.E.2d 621, 622 (2008). We review issues of subject matter jurisdiction de novo. State v. Black, 197 N.C. App. 373, 377, 677 S.E.2d 199, 202 (2009).
Subject matter jurisdiction is the authority of a court to decide the controversy presented before it. McKoy v. McKoy, ___ N.C. App. ___, ___, 689 S.E.2d 590, 592 (2010). "A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity." Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964). "The Legislature, within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State." Bullington v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941). When a statute requires the court to exercise its jurisdiction in a certain manner, an act of the court beyond these limits is in excess of its jurisdiction. State v. Wooten, 194 N.C. App. 524, 527, 669 S.E.2d 749, 750 (2008), disc. review denied and cert. dismissed, 363 N.C. 138, 676 S.E.2d 308, 308-09 (2009).
N.C. Gen. Stat. § 14-208.40B provides that if the trial court convicts and sentences a defendant without considering the issue of SBM, the Department of Correction shall make the initial determination of whether such defendant falls into one of the categories of N.C. Gen. Stat. § 14-208.40(a). N.C. Gen. Stat. § 14-208.40B(a) (2009). N.C. Gen. Stat. § 14-208.40(a) sets forth the following categories: (1) the defendant has been classified as a sexually violent predator; (2) the defendant is a recidivist; (3) the defendant was convicted of an aggravated offense; (4) the conviction was a violation of N.C. Gen. Stat. § 14-27.2A or N.C. Gen. Stat. § 14-27.4A; or (5) the offense involved the physical, mental or sexual abuse of a minor. N.C. Gen. Stat. § 14-208.40(a). If the Department of Correction determines that a defendant falls into one of the categories provided in N.C. Gen. Stat. § 14-208.40(a), the district attorney shall schedule an SBM hearing. N.C. Gen. Stat. § 14-208.40B(b).
The State concedes that the record does not show that the Department of Correction gave defendant the required notice of the SBM hearing in compliance with N.C. Gen. Stat. § 14-208.40B(b). N.C. Gen. Stat. § 14-208.40B(b) requires the Department of Correction to notify the defendant of its determination under N.C. Gen. Stat. § 14-208.40(a)and the date of the hearing by certified mail. N.C. Gen. Stat. § 14-208.40B(b). An SBM hearing may not be scheduled sooner than 15 days from the date the notification is mailed to the defendant. N.C. Gen. Stat. § 14-208.40B(b).
N.C. Gen. Stat. § 14-208.40B does not allow the district attorney to invoke the court's jurisdiction on his or her own initiative as the district attorney represents the Department of Correction. In the present case, it is conceded that there is no evidence in the record that the Department of Correction made the initial determination that defendant fell into one of the categories set out in N.C. Gen. Stat. § 14-208.40(a).
In State v. Stines, ___ N.C. App. ___, 683 S.E.2d 411 (2009), this Court held that the failure of the Department of Correction to issue a notice which specifies the category set out in N.C. Gen. Stat. § 14-208.40(a) applicable to defendant with a brief factual basis for that conclusion requires a new hearing. The Court in Stines held that enrollment in the SBM program deprives defendant of a "significant liberty interest[,]" Stines, ___ N.C. App. at ___, 683 S.E.2d at 414, and entitles him to procedural due process, stating:
Additionally, in a variety of other contexts, North Carolina courts have held that procedural due process requires notice sufficient to inform the recipient in advance of a hearing of the bases for the proceedings against him or her so that the individual will have a meaningful opportunity to respond.
Id. at ___, 683 S.E.2d at 416.
As it is conceded that the record is devoid of evidence that defendant received notice in compliance with N.C. Gen. Stat. § 14-208.40(a), the trial court's order is vacated and remanded for a new hearing after proper notice has been provided. Whether the statute divests the trial court of "subject matter jurisdiction" is moot in light of our conclusion that Stines compels this result.
B. Aggravated Offense
The State also concedes that defendant's prior convictions were not aggravated offenses, as defined in N.C. Gen. Stat. § 14-208.6(1a). An aggravated offense is
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.
N.C. Gen. Stat. § 14-208.6(1a) (2009).
The trial court found that the facts underlying the offense, vaginal penetration of a child under 12 years of age, rendered defendant's conviction an aggravated offense. However, in determining whether a conviction is an aggravated offense for purposes of imposing SBM, the court may only consider the elements of the offense and not the underlying facts giving rise to the conviction. State v. Davison, ___ N.C. App. ___, ___, 689 S.E.2d 510, 517 (2009), disc. review denied, ___ N.C. ___, 703 S.E.2d 738 (2010). Defendant was convicted of two counts of indecent liberties with a child in violation of N.C. Gen. Stat. § 14.202.1, which provides that a person is guilty of taking indecent liberties with a child if
being 16 years of age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a) (2009). Indecent liberties with a child is not an aggravated offense because it does not require any of the following elements: (1) a sexual act involving vaginal, anal or oral penetration; (2) the victim be less than twelve years of age; or (3) the act be committed through the use of force or the threat of serious violence. See Davison, ___ N.C. App. at ___, 689 S.E.2d at 516 (concluding that the crime of indecent liberties is not an aggravated offense for purposes of imposing SBM). In light of our decision to vacate the order of the trial court, we need not address defendant's remaining assignment of error.
IV. Conclusion
We vacate the trial court's order requiring defendant to enroll in an SBM program.
Vacated.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).