Opinion
No. COA10-870
Filed 19 April 2011 This case not for publication
Appeal by Defendant from an order entered 30 March 2010 by Judge Mark E. Klass in Forsyth County Superior Court. Heard in the Court of Appeals 14 December 2010.
Attorney General Roy Cooper, by Assistant Attorney General Thomas J. Pitman, for the State. Richard E. Jester, for Defendant.
Forsyth County No. 10 CrS 50271.
Defendant appeals from a trial court order requiring him to enroll in the North Carolina Satellite Based Monitoring ("SBM") program for life. Primarily, Defendant argues that the trial court misidentified the "reportable conviction" requiring lifetime enrollment in SBM. After thorough review of the record, it is apparent that the trial court appropriately required Defendant to enroll in SBM. However, the trial court's order contains a clerical error that requires correction on remand. We find no error with respect to Defendant's remaining arguments on appeal.
On 30 March 2010, Defendant, Jonathan Soots, pled guilty to a single count of felony incest for engaging in intercourse with his niece. As a result of Defendant's guilty plea, the trial court entered judgment and sentenced him to a minimum term of 18 months and a maximum term of 22 months in the custody of the North Carolina Department of Correction. The trial court also ordered Defendant to register as a sex offender and enroll in SBM for life following his release. In its written order, the trial court incorrectly indicated that Defendant's enrollment in SBM was warranted as a result of his violation of the North Carolina statute prohibiting secret peeping. The trial court also found that Defendant was a recidivist and that his offense involved the "physical, mental, or sexual abuse of a minor." Defendant appeals the trial court's order arguing that: (I) "the trial court erred in finding that [Defendant] had violated any portion of [the secret peeping statute];" and (II) "Counsel for [Defendant] was ineffective in his assistance to his client in failing to make any Constitutional objections to the order for satellite-based monitoring."
As a preliminary matter, we must first examine Defendant's grounds for appellate review from the trial court's order. Following the trial court's determination that Defendant was to enroll in SBM, Defendant provided oral notice of his intent to appeal the trial court's order. In State v. Brooks, examining a similar factual scenario, our Court held that oral notice of appeal from an order requiring a defendant to enroll in the SBM program does not provide our Court with appellate jurisdiction. ___ N.C. App. ___, ___, 693 S.E.2d 204, 206 (2010). Our Court reasoned that SBM proceedings are not criminal in nature, but are instead civil regulatory schemes. Id. at ___, 693 S.E.2d at 206. Accordingly, the oral notice of appeal permitted in criminal proceedings is improper and a defendant must give written notice as is proper in a civil action. Id. at ___, 693 S.E.2d at 206. While we determine that Defendant's notice of appeal was improper, Defendant did file a petition for a writ of certiorari pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure. An appellate court may issue a writ of certiorari 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). Here, the record clearly indicates, and the State concedes, that the record contains a clerical error requiring correction on remand. Accordingly, we grant Defendant's petition for a writ of certiorari and address the substantive issues raised by Defendant's appeal.
I.
Defendant first argues that the trial court erroneously determined that he committed a "reportable conviction" by violating the statute prohibiting the offense of secret peeping. We agree.
N.C. Gen. Stat. § 14-208.40B (2009) establishes the procedures the trial court must follow to determine a defendant's eligibility for SBM. A defendant may only be enrolled in SBM if they are first convicted of a "reportable conviction" as defined by N.C. Gen. Stat. § 14-208.6(4). N.C. Gen. Stat. § 14-208.40B(a) (2009). A "reportable conviction" includes a final conviction for a "sexually violent" offense. N.C. Gen. Stat. § 14-208.6(4)(a) (2009). Our General Assembly's definition of a "sexually violent" offense includes a violation of N.C. Gen. Stat. § 14-178, prohibiting acts of incest between near relatives. N.C. Gen. Stat. § 14-208.6(5) (2009). Here, in its written findings of fact, the trial court erroneously indicated that Defendant was convicted of a violation of N.C. Gen. Stat. § 14-202 prohibiting the secret peeping into a room occupied by another person. While in some cases secret peeping is a "reportable conviction" warranting SBM pursuant to N.C. Gen. Stat. § 14-208.6(4)(d) (2009), Defendant in this case was not convicted of the offense of secret peeping. A review of the record clearly indicates that Defendant pled guilty to the offense of felony incest. Additionally, Defendant was sentenced to imprisonment and required to enroll in SBM based upon his conviction of the offense of felony incest. The trial court's misidentification of the "reportable conviction" was a clerical error that must be corrected on remand.
"[A] court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes. . . ." State v. Davis, 123 N.C. App. 240, 242, 472 S.E.2d 392, 393 (1996). However, a trial court "cannot, under the guise of an amendment of its records, correct a judicial error[.]" Id. at 243, 472 S.E.2d at 394 (internal quotation marks omitted). Our Court has defined a clerical error as "`[a]n error resulting from a minor mistake or inadvertence, [especially] in writing or copying something on the record, and not from judicial reasoning or determination.'" State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting, but not adopting, Black's Law Dictionary 563 (7th ed. 1999)). Our Court has recognized that an incorrect box may inadvertently be marked on a form order, creating a clerical error that must be corrected on remand. See State v. May, ___ N.C. App. ___, ___, 700 S.E.2d 42, 44 (2010) (holding that remand was necessary where the trial court marked an incorrect box misidentifying the "reportable conviction" requiring the defendant to enroll in SBM).
In reviewing Defendant's plea and sentencing for the offense of incest, it is clear that the trial court's finding that Defendant committed the "reportable conviction" of secret peeping was clerical in nature. Accordingly, we remand the order to the trial court for the limited purpose of correctly identifying the "reportable conviction" for which enrollment in SBM is warranted.
Defendant also contends that there was no evidence to support the trial court's determination that he was a recidivist. Defendant's argument is without merit.
"`Recidivist' means a person who has a prior conviction for an offense that is described in G.S. 14-208.6(4)." N.C. Gen. Stat. § 14-208.6(2b) (2009). Our Court has held the statements by a defendant's counsel stipulating that the defendant had been convicted of the charges listed in the prior record worksheet, are sufficient to prove prior convictions for sentencing purposes. See State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002). Though our Court's decision was not addressing proof of prior convictions to determine if the defendant was a recidivist, the reasoning from Eubanks is applicable in this case.
Here, Defendant's prior record worksheet revealed that he had been previously convicted of the offenses of incest and indecent liberties with a minor. At his hearing, Defendant's stipulated that the information in the prior record level worksheet revealed that Defendant was a "[r]ecord Level III for felony sentencing purposes[.]" Later, the State argued that Defendant's prior convictions required that the trial court classify him as a recidivist. Defendant's counsel concurred with the State's contention and only argued that Defendant's conviction for incest should not qualify as a "sexually violent" offense. Defendant's prior record worksheet and the statements made by his counsel at trial are sufficient evidence from which the trial court could determine that Defendant was a recidivist. See id. It would defy logic for our Court to find that Defendant's prior convictions existed when determining that he was a prior record level III, and ignore these same convictions when determining whether he was a recidivist. Accordingly, Defendant's argument is without merit.
II.
Defendant next contends that his appointed counsel at trial was unconstitutionally ineffective for failing to raise any constitutional objections to the SBM order. However, because Defendant is appealing from a civil order, he is unable to raise an ineffective assistance of counsel issue on appeal. See State v. Wagoner, 199 N.C. App. 321, 332, 683 S.E.2d 391, 400 (2009) (noting that "a claim for ineffective assistance of counsel is available only in criminal matters, and . . . SBM is not a criminal punishment."), aff'd per curiam, 364 N.C. 422, 700 S.E.2d 222 (2010). Accordingly, Defendant's argument is without merit.
No error in part; Remand in part.
Judges BRYANT and STROUD concur.
Report per Rule (30).