Heard in the Court of Appeals 20 November 2013.
Appeal by defendant from order entered 22 January
2013 by Judge Mark E. Powell in Buncombe County Superior Court.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.
Jon W. Myers, Lexington, for defendant.
HUNTER, ROBERT C., Judge.
Defendant William Mills, Jr. appeals the order entered 22 January 2013 requiring him to enroll in Satellite-Based Monitoring (" SBM" ) for the remainder of his life. On appeal, defendant argues that the trial court's order must be vacated because: (1) the trial court erred in finding that defendant was given proper notice of the basis for which the Department of Correction believed him eligible for SBM and that defendant was given notice of the date of the scheduled SBM hearing; (2) the trial court lacked subject matter jurisdiction to hold the SBM hearing; (3) the trial court erred in concluding defendant had adequate and proper notice of the SBM hearing in violation of his due process rights; and (4) the SBM statutes violate the prohibition against ex post facto laws and double jeopardy as applied. After careful review, we affirm the trial court's order.
On 2 June 2003, defendant pled guilty to one count of second degree rape and three counts of second degree sex offense in exchange for the consolidation of the offenses for sentencing, a sentence in the presumptive range, and an agreement by the State to not prosecute defendant for any additional charges involving other victims. The trial court sentenced him to a minimum term of 73 months to a maximum term of 97 months imprisonment.
After defendant served his sentence, the trial court conducted a bring-back hearing to determine defendant's eligibility for enrollment in an SBM program. The State's petition requesting the hearing is not included in the record on appeal. Prior to the hearing, defendant's counsel filed a motion to dismiss the petition, arguing that: (1) retroactive application of the SBM program violates the ex post facto provision of the United States and North Carolina Constitutions; (2) ordering defendant to enroll in an SBM program violates the double jeopardy clause; (3) the SBM hearing violates defendant's right to a jury trial and due process by increasing his punishment for prior offenses without submitting the issue to a jury; and (4) the SBM program interferes with defendant's right to travel and the right to be free from warrantless searches.
The matter came on for hearing on 22 January 2013 before Judge Mark E. Powell in Buncombe County Superior Court. The trial court marked the following findings on a preprinted, standard form: (1) defendant was convicted of a reportable offense but the sentencing court made no determination of whether defendant should be required to enroll in SBM; (2) the Department of Correction (the " DOC" ) determined that defendant fell into at least one of the categories requiring SBM pursuant to N.C. Gen.Stat. § 14-208.40 and gave notice to defendant of this category; (3) the District Attorney scheduled a hearing in the county of defendant's residence and the DOC provided notice to defendant required under 14-208.40B, and the hearing was not held sooner than 15 days after that notice; and (4) the offense defendant was convicted of was an aggravated offense. Based on these findings, the trial court ordered defendant enroll in SBM for the remainder of his natural life. Additionally, the trial court denied defendant's motion to dismiss the petition. Defendant timely appealed.
Defendant first argues that there was no evidence presented at the determination hearing establishing that defendant had been provided adequate notice of the basis for which the DOC believed him eligible for
SBM or that defendant had been served the notice of the hearing in compliance with N.C. Gen.Stat. § 14-208.40B(b). Specifically, defendant contends that none of the findings marked on the standard preprinted form were supported by competent evidence at the hearing. Based on the record, we conclude that defendant has waived his right to raise ...