Opinion
No. COA12–1354.
2013-06-4
STATE of North Carolina v. Edward Jason STANLEY.
Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, Jr., for the State. Glenn Gerding, for Defendant–Appellee.
Appeal by the State from order entered 3 April 2012 by Judge Lindsay R. Davis, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 13 March 2013. Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, Jr., for the State. Glenn Gerding, for Defendant–Appellee.
ERVIN, Judge.
The State appeals from an order granting a request by Defendant Jason Edward Stanley that his name be removed from the North Carolina Sex Offender Registry. On appeal, the State argues that the trial court's order is “invalid” on the grounds that “this remedy is not available during a criminal proceeding” and on the grounds that the trial court erroneously concluded that the sex offender registration program was unconstitutional as applied to Defendant. After careful consideration of the State's challenges to the trial court's order in light of the record and the applicable law, we conclude that the State's appeal should be dismissed.
I. Factual Background
On 18 April 2002, Defendant was convicted of feloniously abducting children in violation of N.C. Gen.Stat. § 14–41. The incident which led to Defendant's conviction involved three children, two of whom were Defendant's daughters and the third of whom was his step-daughter. At the time of the incident: in question:
[D]efendant and his wife took her three children on a trip out of North Carolina in contravention of a custody order which granted custody to the children's maternal grandmother. Defendant considered all three children to be his, but was technically only the father of two of the children; defendant was not the biological or adoptive father of one of the children, though he was her stepparent at the time of the abduction. It appears that there was no allegation of any sexual misconduct by defendant against any of the three children during the abduction or at any other time. Despite his convictions for abduction, defendant failed to register on the Sexual Offender and Public Protection Registry[.]
State v. Stanley, 205 N.C.App. 707, 708, 697 S.E.2d 389, 389,disc. review denied,364 N.C. 440, 702 S.E.2d 798 (2010) ( Stanley I ). “On or about 1 October 2007, defendant was indicted for failing to register. On 10 December 2008, defendant filed a petition for removal from the registry and a motion to dismiss the criminal charge against him. On or about 20 May 2009, in response to defendant's petition and motion, the trial court dismissed the criminal charge against defendant and ordered that defendant's name be removed from the registry. The trial court based its order on its conclusion that two of the convictions for abduction of children stemmed from defendant's own children and defendant had ‘acted as' a parent to the third child, so defendant was not required to register.” Stanley I, 205 N.C.App. at 708, 697 S.E.2d at 389–90. The State appealed from the portion of the trial court's order which ruled that Defendant did not have to comply with the registration requirement. In Stanley I, we held that, under the relevant statutes, the word “parent” included only natural or adoptive parents and did not extend to more informal relationships such as the one between Defendant and the child whose abduction had triggered the registration requirement. Stanley I at 710, 697 S.E.2d at 391.
On 29 November 2010, Defendant was again indicted for failure to register as a sex offender in violation of N.C. Gen.Stat. § 14–208.11. On 30 December 2011, Defendant filed a dismissal motion and petition for removal from the sex offender registry. On 1 February 2012, the trial court entered an order granting Defendant's motion and ordering that the charge that had been lodged against him be dismissed and that his name be removed from the sex offender registry. On 3 February 2012, the trial court entered an order striking the 1 February 2012 order. On 29 March 2012, the trial court conducted a second hearing concerning the issues raised by Defendant's filing. On 3 April 2012, the trial court entered an order dismissing the charge of failure to register as a sex offender that had been lodged against Defendant and ordering that Defendant's name be removed from the sex offender registry.
On 1 May 2012, the State noted an appeal from the trial court's order. On 12 September 2012, Defendant filed a motion to dismiss the State's appeal for alleged violations of N.C. R.App. P. 4(a) (requiring that notice of appeal in a criminal case be given within fourteen days of entry of judgment). On 2 October 2012, the State filed a response to Defendant's motion in which it “request[ed] to limit its appeal to the civil portion of the order[.]” On 12 October 2012, the trial court granted Defendant's motion to dismiss “as to the portion of the order dismissing the indictment” while refusing to dismiss the State's appeal from the civil component of the order.
On 16 January 2013, Defendant filed a motion with this Court seeking the dismissal of the State's appeal on the grounds that the provisions of N.C.R.App. P. 4(a)(a) should be deemed applicable to both aspects of the trial court's order and opposing the State's request that we issue a writ of certiorari in order to allow review of the challenged portion of the trial court's order on the merits. On the same date, Defendant filed a motion seeking dismissal of the State's appeal and denial of the State's request for the issuance of a writ of certiorari on the grounds that the State had failed to adequately preserve the issues that it sought to present to this Court. On 17 January 2013, the State filed a response to Defendant's motions in which it argued that its appeal from the trial court's order had been noted in a timely manner and that this Court did have jurisdiction to consider the State's appeal.
II. Legal Analysis
A. Introduction
As we understand the record, the State clearly failed to preserve the issue that it seeks to raise before this Court for purposes of appellate review. During the first hearing on Defendant's motion, which was conducted on 1 February 2012, Defendant offered the testimony of Mary Ellen Conley, the grandmother and legal custodian of the children, concerning Defendant's relationship with the children. In addition, Defendant argued that, given the fact that there was no sexual component to the abduction charge, the sex offender registration requirement was unconstitutional as applied to him on the grounds that it interfered with his fundamental right to associate with his children. More specifically, Defendant argued that, as applied to him, the sex offender registration law was “unconstitutional both under substantive due process and under overbreadth analysis.” The Assistant District Attorney who represented the State at this hearing agreed that Defendant had a fundamental right to associate with his children and stated that he had “never seen any evidence of any kind that would indicate that [Defendant] has committed any sex crimes.” The prosecutor also concurred with Defendant's constitutional analysis, stating that:
[I]t does seem based on the totality of the circumstances that there's some degree of fundamental unfairness to this individual to have to register under these circumstances[.] ... [A]s applied to him there does seem to be some ... degree of ... unfairness at least with regard to characterization of him as a sex offender.... [H]ad this individual been convicted of any ... sort of sex crime, then his abridgement of his freedom to associate with his children or any other children ... [would be] warranted by status as a sex offender.... But as applied to this individual who has not committed any sex crime ..., it's a difficult case for the State because ... this individual's just going to keep getting arrested ... until a court rules that it's inapplicable in ... his situation based on some constitutional principle.
At the conclusion of the hearing, the trial court granted Defendant's request and ordered that the charge against Defendant be dismissed and that Defendant's name be removed from the sex offender registry.
Subsequently, the trial court learned that Defendant's entire criminal record had not been presented at the first hearing, struck its order, and conducted a second hearing at which evidence was presented concerning misdemeanors of which Defendant had been convicted that had not been discussed at the first hearing. At this second hearing, Defendant offered the testimony of several witnesses, including that of one of his daughters and that of his step-daughter. After presenting evidence in support of his motion, Defendant's trial counsel urged the trial court to consider the constitutional arguments made at the first hearing and asserted that the sex offender registration statute was unconstitutional as applied to Defendant. At the time that the trial court requested a response from the State, the prosecutor said that:
Your Honor, the State was in agreement with the Court's decision the last time. Defendant is really not a sex offender. There's no doubt about that. Kind of an unusual situation in terms of what the underlying—was in the first case, especially in light of the fact he's essentially the only father that the child in question has ever known, and we agree [with] what the Court has already entered in the previous order.
B. Discussion
N.C. R.App. P. 10(a)(1) provides, in pertinent part, that “to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context” and “obtain a ruling upon the party's request, objection, or motion.” “One of the purposes of requiring parties to object and make motions before the trial court is so that the trial court has the opportunity to correct any errors.” State v. Dye, 207 N.C.App. 473, 481, 700 S.E.2d 135, 140 (2010) (citing Reep v. Beck, 360 N.C. 34, 37, 619 S.E.2d 497, 499 (2005). Moreover, “[i]t is a well-established rule in our appellate courts that a contention not raised and argued in the trial court may not be raised and argued for the first time on appeal. Since the State did not argue to the trial court that [Defendant's] registration requirement could not be terminated ... the State cannot raise that argument on appeal.” In re Hutchinson, ––– N.C.App. ––––, ––––, 723 S.E.2d 131, 133 (citing Wood v. Weldon, 160 N.C.App. 697, 699, 586 S.E.2d 801, 803 (2003), disc. review denied,358 N.C. 550, 600 S.E.2d 469 (2004), and N.C.R.App. P. 10(a)(1)), disc. review denied,––– N.C. ––––, 724 S.E.2d 910 (2012). In Hutchinson, the defendant, who had been charged with failing to register as a sex offender, filed a petition seeking dismissal of the failure to register charge and termination of the registration requirement as applied to him. As in the present case, the State did not oppose Defendant's motion, which was granted by the trial court. Subsequently, the defendant sought dismissal of the State's appeal from the trial court's order on the grounds that the State had failed to properly preserve any issues for appellate review. Based upon our agreement with the defendant's argument, we dismissed the State's appeal, stating that:
... [Defendant] filed a motion to dismiss the State's appeal of [the trial court's] order[,] ... [arguing] that the State had not properly preserved any issues for appeal and, thus, the State's appeal of [the court's] order terminating [Defendant's] registration should be dismissed.... [W]e agree. As noted supra, the State consented to termination of [Defendant's] registration requirement at the hearing before [the trial court.] However, on appeal, the State now contends that the registration requirement should not have been terminated[.] ... Because the State failed to properly preserve its ... argument[s] on appeal, the appeal must be dismissed.
Hutchinson, ––– N.C.App. at ––––, 723 S.E.2d at 132–33 (citing Estates, Inc. v. Town of Chapel Hill, 130 N.C.App. 664, 666, 504 S.E.2d 296, 298 (1998), disc. review denied, 350 N.C. 93, 527 S.E.2d 664 (1999). We are unable to find any material distinction between the facts at issue in Hutchinson and the facts at issue here, and the State has not suggested one for our consideration. As a result, given that this Court is bound by its own prior decisions, In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (stating that, “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court”) (citations omitted), we hereby dismiss the State's appeal from the trial court's order and deny the State's alternative certiorari petition.
In addition to noting an appeal from the trial court's order, the State asked “this Court [to] exercise discretion, as appropriate, to afford relief by means of the Writ of Certiorari and/or Appellate Rule 2 in order to preserve the State's civil appeal and all issues raised and argued through this brief.”
APPEAL DISMISSED. Judges CALABRIA and DILLON concur.
Report per Rule 30(e).
(SB4) As a practical matter, the State's failure to properly preserve these issues for appellate review would preclude consideration of the State's challenge to the trial court's order on the merits even if we were to grant the requested writ of certiorari. In addition, we are not persuaded that we should overlook the State's failure to properly preserve this issue for appellate review pursuant to N.C.R.App. P. 2 given the State's support for Defendant's motion in the court below. State v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971) (stating that, “[o]rdinarily, one who causes (or we think joins in causing) the court to commit error is not in a position to repudiate his action and assign as ground for a new trial”). Finally, although the State suggests that the trial court's order exceeded applicable jurisdictional limitations, “not every deviation from required statutory procedures is jurisdictional in nature.” State v. Petty, 212 N.C.App. 368, 711 S.E.2d 509, 513 (2011) (citing Haker–Volkening v. Haker, 143 N.C.App. 688, 693, 547 S.E.2d 127, 130,disc. rev. denied, 354 N.C. 217, 554 S.E.2d 338 (2001) (internal citations omitted). Thus, “[a]fter a careful examination of the record, this Court, in the exercise of its discretion, declines to issue [a] writ of certiorari.” In re Palmer, 265 N.C. 485, 487, 144 S.E.2d 413, 415 (1965).