State v. Eggleston

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-185 NORTH CAROLINA COURT OF APPEALS Filed: 3 December 2013 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 02 CRS 238864 02 CRS 238869 DALVIN EGGLESTON, Defendant. 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 Jodi Harrison and Assistant Attorney General Joseph L. Hyde, for the State. Daniel F. Read for defendant-appellant. GEER, Judge. Defendant Dalvin Eggleston appeals from the trial court's order requiring ("SBM") for life. him to enroll in satellite based monitoring On appeal, defendant primarily contends that imposition of SBM violated his contractual rights arising from his plea agreement with the State. We hold that this argument is foreclosed by this Court's opinion in State v. Vogt, 200 N.C. -2App. 664, 685 S.E.2d 23 (2009), aff'd per curiam, 364 N.C. 425, 700 S.E.2d 224 (2010). Because we also find defendant's remaining arguments unpersuasive, we affirm the trial court's order. ________________________________ On 27 August 2003, defendant pled guilty to two counts of second degree rape. Pursuant to a plea agreement, the trial court consolidated the convictions into a single judgment and sentenced defendant to a term of 65 to 87 months imprisonment. On 27 April 2012, the State filed a motion for a determination whether defendant was required to enroll in SBM. On 3 August 2012, the trial court entered an order requiring defendant to enroll in SBM for life. Defendant filed written notice of appeal on 11 September 2012. Discussion We must initially 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 his written notice of appeal subjects his appeal to dismissal. See State v. May, 207 N.C. App. 260, 262, 700 S.E.2d 42, 44 (2010) (dismissing appeal where defendant "failed to give timely written notice of appeal" as -3required by Rule 3 from trial court's therefore, must dismiss defendant's appeal. Defendant certiorari has, seeking however, review filed of a the SBM SBM order). We, Id. petition for writ of 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." 21(a)(1). lost his N.C.R. App. P. Because it is apparent from the record that defendant 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 as protected by 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 based on his assertions that he did not consent to SBM and was not apprised of the possibility that he would be subject to SBM when he entered his guilty pleas. -4With 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 that contemplated under [the defendant's] plea agreement" because, among other reasons, SBM "is a civil and regulatory rather than a punitive regime." at 671, 685 S.E.2d at 28. Vogt, 200 N.C. App. 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). Finally, this Court has twice held that the possibility that a defendant may be subjected to SBM is not a direct consequence of a plea agreement such that a defendant must be apprised of the possibility that he or she might be subjected to SBM prior to pleading. ("[I]mposition defendant's] of no SBM See id. at 480, 677 S.E.2d at 531-32 was contest not an plea, automatic unlike a result of mandatory [the minimum sentence or an additional term of imprisonment."); Vogt, 200 N.C. App. at 667, 685 S.E.2d at 25 (following Bare and affirming court's SBM order based on same reasoning). Defendant pointing nonetheless attempts to the Bare Court's implications of the defendant's to reasoning plea distinguish that were the not Bare by SBM-related a direct -5consequence of the plea because the trial court had to determine, in a separate hearing, the factual issue whether the defendant was a recidivist under the SBM statutes. 197 N.C. App. at 480, 677 S.E.2d at 531. Here, See Bare, the fact requiring SBM was not recidivism, but rather was the fact that defendant was convicted of an aggravated offense, and, defendant asserts, the fact of his aggravated offense conviction was "provable from records of which the court could take judicial notice." Unlike in Bare, defendant reasons, here, the court "had no discretion but was bound by statute to enter the order he did." However, 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. 479, 677 S.E.2d at 531. App. 658, 661, 446 197 N.C. App. at See also State v. Bozeman, 115 N.C. S.E.2d 140, 142 (1994) ("'Direct consequences' have been defined as those which have a 'definite, immediate and defendant's largely automatic punishment.'" effect (quoting on the Cuthrell range v. Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973))). of the Director, -6Under Bare and Vogt, the SBM order did not violate defendant's contractual rights, his right to be informed of the direct consequences of his plea, or his rights under N.C. Gen. Stat. § 15A 1022. Defendant's additional arguments that imposition of SBM violates his rights to be free from double jeopardy and ex post facto punishment have been rejected by our Courts. See 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, 37 (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. Report per Rule 30(e).

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