Opinion
No. COA14–1103.
03-17-2015
STATE of North Carolina v. Timothy Bernard OWENS.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State. WAIT Law, P.L.L.C., by John L. Wait, for Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.
WAIT Law, P.L.L.C., by John L. Wait, for Defendant.
STEPHENS, Judge.
Defendant Timothy Bernard Owens appeals from an order requiring him to enroll in a satellite-based monitoring (“SBM”) program for the rest of his natural life. Owens contends that the court below abused its discretion when it denied his motion to continue the SBM hearing. After careful consideration, we find no abuse of discretion here and we consequently affirm the SBM order.
I. Procedural History
On 17 November 2004, Owens pled guilty to two counts of second-degree rape and two counts of second-degree sexual offense. The trial court consolidated the offenses and sentenced Owens to a term of 82 to 108 months of imprisonment.
While in the custody of the Department of Public Safety (“DPS”) for violating the terms of his post-release supervision, Owens received notice from DPS that it had scheduled an SBM determination hearing in Wake County Superior Court. DPS claimed it made an initial determination that Owens fell into a category that made him eligible for SBM based on his conviction of an “aggravated offense[ .]”
The hearing came on before Judge Fox on 28 February 2014. Counsel for Owens informed the court that Owens requested a continuance because “[h]e's currently serving an active sentence ... and he would prefer to address this matter once he has been released from prison.” Judge Fox advised Owens that the court did not have discretion in his case because the law required the court to order SBM based on his convictions. In denying the motion, Judge Fox stated that the only reason to continue the case “would be some reason that would cause you to be able to do something differently, but the outcome is not going to be different regardless.”
Judge Fox concluded that Owens was convicted of a reportable offense as defined by N.C. Gen.Stat. § 14–208.6(4), and that his second-degree rape convictions constituted aggravated offenses. Based on these conclusions, the court ordered Owens to enroll in SBM for the remainder of his natural life, to take effect upon his release from custody. Owens subsequently gave notice of appeal in open court.
II. Analysis
A. Jurisdiction
“Our Court has held that SBM hearings and proceedings are not criminal actions, but are instead a civil regulatory scheme.” State v. Brooks, 204 N.C.App. 193, 194, 693 S.E.2d 204, 206 (2010) (citation, internal quotation marks, and brackets omitted). Therefore, “oral notice pursuant to N.C.R.App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court.” Id.at 19495, 693 S.E.2d at 206. Rather, a defendant seeking to challenge an order requiring his enrollment in SBM must give written notice of appeal in accordance with N.C.R.App. P. 3(a) in order to properly invoke this Court's jurisdiction. Id.at 195, 693 S.E.2d at 206.
In the present case, because Owens gave only oral notice of appeal from the trial court's SBM order, this Court lacks jurisdiction and must dismiss his appeal. See State v. Cowan, 207 N.C.App. 192, 195, 700 S.E.2d 239, 241 (2010) (holding that the requirements of N.C.R.App. P. 3 are jurisdictional). However, Owens acknowledges his error below and has submitted a petition for writ of certiorariseeking review of the SBM order. “The writ of certiorarimay be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action [.]” N.C.R.App. P. 21(a)(1). Pursuant to this Court's authority under N.C.R.App. P. 21(a)(1), we grant Owens's petition and review the merits of his appeal.
B. Motion to Continue
Owens argues that the court below erred in denying his motion to continue. We disagree.
Rule 40(b) of our Rules of Civil Procedure governs motions to continue in civil matters and provides, in pertinent part, “[n]o continuance shall be granted except upon application to the court. A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require.” N.C. Gen.Stat. § 1A–1, Rule 40(b) (2013). “Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it.” Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E.2d 380, 386 (1976). “The chief consideration is whether granting or denying a continuance will further substantial justice.” Doby v. Lowder, 72 N.C.App. 22, 24, 324 S.E.2d 26, 28 (1984) (citation omitted). “The standard of review for denial of a motion to continue is generally whether the trial court abused its discretion.” Morin v. Sharp, 144 N.C.App. 369, 373, 549 S .E.2d 871, 873, disc. review denied, 354 N.C. 219, 557 S.E.2d 531 (2001).
Here, Owens moved for a continuance at the start of the SBM hearing based on the ground that he wanted the matter addressed upon his release from prison. However, as Judge Fox explained to Owens, a motion to continue would not change the outcome of the hearing because North Carolina law mandates that he be ordered to enroll in SBM for life based upon his conviction for an aggravated offense.
A trial court must order a defendant convicted of a reportable sex offense to enroll in lifetime SBM if the defendant “has been classified as a sexually violent predator, is a recidivist, has committed an aggravated offense, or was convicted of [the rape of or sex offense against a child pursuant to N.C. Gen.Stat. §§ 14–27.2A and 14–27.4A ].” N.C. Gen.Stat. § 14–208.40A(c) (2013). An aggravated offense is defined as
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). Further, N.C. Gen.Stat. § 14–208.40B(c) provides that “[i]f the court finds that ... the conviction offense was an aggravated offense, ... the court shallorder the offender to enroll in satellite-based monitoring for life.” N.C. Gen.Stat. § 14–208.40B(c) (emphasis added).
In the present case, since the court below had no discretion whether to order Owens to enroll in SBM for life, Owens has failed to show that a continuance would have “further[ed] substantial justice.” Doby, 72 N.C.App. at 24, 324 S.E.2d at 28. Thus, we conclude that the court's denial of Owens's request for a continuance under these circumstances was not an abuse of discretion. Accordingly, the SBM order is
AFFIRMED
Chief Judge McGEE and Judge HUNTER, JR. concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from order entered 28 February 2014 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 23 February 2015.