Opinion
No. COA11–865.
2012-04-17
STATE of North Carolina v. David Bernard EICHACKER, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Terence D. Friedman, for the State. Richard E. Jester for defendant-appellant.
Appeal by defendant from judgments entered 5 January 2011 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 30 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Terence D. Friedman, for the State. Richard E. Jester for defendant-appellant.
GEER, Judge.
Defendant David Bernard Eichacker contends on appeal only that the trial court erred in entering its Judicial Findings and Order for Sex Offenders—Active Punishment. He primarily argues that the trial court lacked subject matter jurisdiction to order him to enroll in a satellite-based monitoring (“SBM”) program because the proceeding was not initiated by a civil summons and complaint. This precise argument was addressed and rejected by this Court in State v. Sims, ––– N.C.App. ––––, 720 S.E.2d 398,disc. review denied,––– N.C. ––––, 719 S.E.2d 35 (2011). Consequently, we affirm.
Facts
On 29 July 2008, defendant pled guilty to taking indecent liberties with a child and received a suspended sentence with 24 months of supervised probation. On 5 January 2011, defendant pled guilty to two counts of indecent liberties with a child and four counts of sexual activity by a custodian. The trial court sentenced defendant to four consecutive presumptive-range terms of 30 to 45 months each. In addition, the trial court revoked defendant's probation and activated defendant's previous sentence of 13 to 16 months imprisonment with that sentence running concurrently with those already imposed.
The trial court also entered its Judicial Findings and Order for Sex Offenders—Active Punishment. The court found that defendant had not been classified as a sexually violent predator, but that he was a recidivist. Based on that finding, the court ordered that defendant register as a sex offender for his natural life and upon release from prison be enrolled in an SBM program for his natural life. Defendant timely appealed to this Court.
Discussion
Defendant first asserts that the trial court lacked subject matter jurisdiction to conduct an SBM hearing because the State failed to initiate the proceeding by filing a civil complaint and having a summons issued. In addressing this precise argument, this Court explained that “ ‘[t]he General Assembly within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State.’ “ Sims, ––– N.C.App. at ––––, 720 S.E.2d at 401 (quoting State v. Wooten, 194 N.C.App. 524, 527, 669 S.E.2d 749, 750 (2008)). “ ‘Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction.’ “ Id. at ––––,720 S.E.2d at 401 (quoting Wooten, 194 N.C.App. at 527, 669 S.E.2d at 750).
The Court held that the trial court in Sims did not act in excess of its jurisdiction but rather had subject matter jurisdiction because “[t]he trial court exercised the jurisdiction conferred upon it by N.C. Gen.Stat. § 14–208.40A, and followed the procedures set forth therein.” Id. at ––––, 720 S.E.2d at 401. The same is true here.
Defendant also argues that the notice given him under N.C. Gen.Stat. § 14–208.40A (2011) violated his federal and state due process rights because (1) the statute does not provide adequate notice of the grounds upon which the State will seek to subject a defendant to SBM, and (2) because the notice provided in N.C. Gen.Stat. § 14–208 .40A is less than that provided for in N.C. Gen.Stat. § 14–208.40B (2011).
Defendant did not, however, raise these constitutional arguments in the trial court. “ ‘Constitutional questions that are not raised and passed upon in the trial court will not ordinarily be considered on appeal.’ “ State v. Smith, 359 N.C. 199, 208–09, 607 S.E.2d 607, 615 (2005) (quoting State v. Cummings, 353 N.C. 281, 292, 543 S.E.2d 849, 856 (2001)). Although defendant asks that we review his arguments under Rule 2 of the North Carolina Rules of Appellate Procedure, we believe that such issues should be fleshed out in the trial courts and, therefore, decline to do so.
Affirmed. Judges ROBERT C. HUNTER and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).