State v. Maske

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-120 NORTH CAROLINA COURT OF APPEALS Filed: 3 December 2013 STATE OF NORTH CAROLINA v. JEHON MASKE, Defendant. Mecklenburg County Nos. 04 CRS 235596 04 CRS 235597 Appeal by defendant from order entered 3 August 2012 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 October 2013. Attorney General Roy Cooper, by Assistant Attorney General Kimberly Grande and Assistant Attorney General Joseph L. Hyde, for the State. Daniel F. Read for defendant-appellant. GEER, Judge. Defendant Jehon Maske appeals from the trial court's order requiring him to enroll in satellite based monitoring ("SBM") for life. On appeal, defendant primarily argues that imposition of SBM violated his contractual rights arising from his plea agreement with the State. We hold, under State v. Vogt, 200 N.C. App. 664, 685 S.E.2d 23 (2009), aff'd per curiam, 364 N.C. -2425, 700 S.E.2d 224 (2010), that defendant's contractual rights arising from his plea agreement were not violated by imposition of SBM. Because we also find defendant's remaining arguments unpersuasive, we affirm the trial court's order. _________________________________ On 13 October 2005, defendant pled guilty to second degree rape and taking indecent liberties with a minor. court consolidated the offenses into a single The trial judgment and sentenced defendant to a mitigated-range term of 60 to 81 months imprisonment. On 27 April 2012, the State filed a motion to determine whether defendant was required to enroll in the sex offender SBM program. On 3 August 2012, the trial court entered an order requiring that defendant be enrolled in SBM for life. Defendant filed notice of appeal on 11 September 2012. Discussion We first address this Court's jurisdiction over defendant's appeal. Defendant's notice of appeal was not filed within 30 days after entry of the SBM order as required by Rule 3(c) of the North Carolina Rules of Appellate Procedure. Defendant's failure to timely file a written notice of appeal subjects his appeal to dismissal. 700 S.E.2d 42, 44 See State v. May, 207 N.C. App. 260, 262, (2010) (dismissing appeal where defendant -3"failed to give timely written notice of appeal" in accordance with Rule 3, from trial court's SBM order). dismiss defendant's appeal. We must, therefore, Id. Recognizing this potential defect in his notice of appeal, defendant filed a petition for writ of certiorari seeking review of the SBM order. A writ of certiorari may be issued 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). Because it appears defendant lost his right to appeal through no fault of his own, we exercise our discretion to allow defendant's petition and review the trial court's order. Defendant first argues that the trial court erred in entering the SBM order because the order constituted an improper modification of the contract between defendant and the State arising from defendant's guilty pleas. Defendant contends that this improper modification violated his contractual rights under the plea agreement including his rights under the Contracts Clause of the United States Constitution, U.S. Const. art. I, § 10; his right to be informed of the direct consequences of his guilty plea; and his rights under N.C. Gen. Stat. § 15A-1022 (2011). Defendant's arguments are premised upon his assertions -4that he did not consent to SBM and was not apprised of the possibility of SBM when he entered his guilty pleas. With respect to defendant's contractual arguments, this Court rejected the nearly identical argument that a court erred in entering an SBM order because SBM imposed "punishment over and above agreement." that contemplated under [the defendant's] Vogt, 200 N.C. App. at 671, 685 S.E.2d at 28. plea The Court reasoned that SBM "is a civil and regulatory rather than a punitive regime." Id. With respect to defendant's statutory argument, this Court has further held that "[b]ecause . . . SBM provisions are not punitive, N.C. Gen. Stat. § 15A 1022(a) is not implicated." State v. Bare, 197 N.C. App. 461, 479, 677 S.E.2d 518, 531 (2009). Turning to defendant's argument that he was not informed of the possibility of SBM prior to acceptance of his plea, this Court has twice held that the possibility of SBM was not a direct consequence of a plea agreement such that a defendant must be apprised of the possibility of SBM prior to pleading. See id. at 480, 677 S.E.2d at 531-32 ("[I]mposition of SBM was not an automatic result of [the defendant's] no contest plea, unlike a mandatory minimum sentence or an additional term of imprisonment."); Vogt, 200 N.C. App. at 667, 685 S.E.2d at 25 -5(following Bare and affirming court's SBM order based on same reasoning). Defendant attempts to distinguish Bare by pointing to the Bare Court's reasoning that the SBM implications of the defendant's plea were not a direct consequence of the plea in that case because the trial court had to determine, in a separate hearing, the factual issue whether the defendant was a recidivist under the SBM statutes. 480, 677 S.E.2d at 531. See Bare, 197 N.C. App. at In this case, the fact requiring SBM was not recidivism, but rather that defendant was convicted of an aggravated offense, and, defendant asserts, the fact of his aggravated offense conviction "was provable which the court could take judicial notice." from records of Unlike in Bare, defendant reasons, the court in this case "had no discretion but was bound by statute to enter the order he did." We are not persuaded. As in Bare, "[d]efendant's argument is predicated on the assumption that SBM is a punishment," and, since "the SBM provisions are not punitive," neither N.C. Gen. Stat. § 15A 1022(a) nor the rule a defendant must be apprised of the direct consequences of a guilty plea are implicated. N.C. App. at 479, 677 S.E.2d at 531. 197 See also State v. Bozeman, 115 N.C. App. 658, 661, 446 S.E.2d 140, 142 (1994) ("'Direct consequences' have been defined as those which have a 'definite, -6immediate and defendant's largely automatic punishment.'" effect (quoting on the Cuthrell range v. Bare and defendant's Vogt, that contractual the rights SBM under order the did We hold, not Contracts the Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973))). under of violate Clause or otherwise; his rights under N.C. Gen. Stat. § 15A 1022; or his right to be informed of the direct consequences of his plea. Defendant further contends that imposition of SBM violates his rights to be free from double jeopardy and ex post facto punishment. Courts. Both of these arguments have been rejected by our State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010) ("[S]ubjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution."); State v. Anderson, 198 N.C. App. 201, 204-05, 679 S.E.2d 165, 167 (2009) ("As this Court has held that [SBM] does not violation constitute of jeopardy."). a punishment, Defendant's right to it be cannot free constitute from a double We are bound by prior decisions of this Court on the same issue of law, In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989), and by our Supreme Court's holding in Bowditch. Consequently, we affirm the order of the trial court. Affirmed. Judges ERVIN and DILLON concur. -7Report per Rule 30(e).

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