Opinion
No. COA10-740
Filed 1 March 2011 This case not for publication
Appeal by Defendant from judgment entered 29 January 2010 by Judge Mark E. Klass in Davidson County Superior Court. Heard in the Court of Appeals 30 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant.
Davidson County No. 06 CRS 3229.
Carnell Tyrone Streater (Defendant) appeals from judgment entered upon resentencing for an earlier conviction of first degree rape in 2008. For the following reasons, we conclude there is no error in the sentence imposed, but we vacate the 2010 lifetime SBM enrollment order entered in connection therewith.
As this case is before this Court for a second time, we limit our consideration thereof to the issues arising from the resentencing proceedings. However, a more complete recitation of the facts than that appearing below is set out in State v. Streater, ___ N.C. App. ___, 678 S.E.2d 367, disc. review denied, 363 N.C. 661, 687 S.E.2d 293 (2009) [ Streater I].
Defendant was indicted for one count of first degree statutory sexual offense and one count of first degree statutory rape on 13 March 2006 by a Davidson County Grand Jury. Both indictments alleged that the victim, Defendant's daughter B.H.S., was a child under the age of thirteen years at the time of the offenses. The charges were joined for trial, and following the jury's return of guilty verdicts on both counts, the trial court consolidated the two convictions for sentencing and entered judgment on 21 February 2008. Based on Defendant's prior record level of III, the trial court imposed a sentence of 269 to 332 months' imprisonment. Also included in the trial court's judgment were findings that "the above named offense(s) is a reportable conviction" and that Defendant "shall submit to satellite-based monitoring [SBM] as indicated on the attached AOC-CR-615." Defendant appealed, and this Court remanded the case for a new trial on the sex offense carge and new sentencing hearing on the first degree rape conviction. Streater I, ___ N.C. App. at ___, 678 S.E.2d at 378.
The pseudonym "B.H.S." is used to protect the identity and privacy of the minor victim.
Although the judgment indicates that this form setting out the judicial findings and order as to SBM was attached thereto, this sheet is absent from the record. However, this Court takes judicial notice of that separate order for sex-offender registration and lifetime SBM, as it is part of the record on appeal to this Court in Streater I, COA08-961. See West v. Reddick, Inc., 302 N.C. 201, 202, 274 S.E.2d 221, 223 (1981) ("This Court has long recognized that a court may take judicial notice of its own records in another interrelated proceeding where the parties are the same, the issues are the same and the interrelated case is referred to in the case under consideration."); see also Bohannan v. McManaway, No. COA09-887, 2010 WL 5420141, at *13 (N.C. Ct. App. Dec. 21, 2010) (taking judicial notice of an order not included in the record on appeal but contained in the record for a "companion case" that was also appealed). Thus, it is clear that an SBM hearing was conducted and ruled upon following Defendant's 2008 trial, despite Defendant's contention in his brief that "[t]he [t]rial [c]ourt did not make any oral findings or orders with respect to satellite-based monitoring" at that time. Importantly, for the purposes of the instant appeal, there is no indication in the record here or from this Court's ruling in Streater I that Defendant properly appealed the 2008 registration and SBM orders or that such were affected by our opinion.
Following remand, the State voluntarily dismissed the first degree sex offense charge and proceeded only on resentencing of the first degree rape conviction. At the outset of the resentencing hearing, conducted on 29 January 2010, the parties agreed that sentencing on the rape conviction would be based on "a prior record Level III with six points on that B-1 felony." Defendant then proceeded to present the testimony of Mary L. Brown, Defendant's maternal aunt with whom he had lived from the ages of thirteen to eighteen because "[h]is mother wasn't watching him like she was supposed to." Ms. Brown testified that her nephew had survived various serious illnesses, including scarlet fever and two strokes, had been hospitalized for many months, took blood thinner medication every day, and suffered from several physical impediments affecting his mobility and endurance. Based on Ms. Brown's testimony that she has "maintained regular contact" with Defendant and "was still involved in his life regardless [of] how old he was, because he was not able to take care of himself," defense counsel requested that the trial court find "as a mitigating factor that [Defendant] had a support system in the community," under N.C. Gen. Stat. § 15A-1340.16(e)(18). Defendant also requested a finding in mitigation that he did not present a threat of future harm, based on his physical condition, under § 15A-1340.16(e)(21). The State then emphasized that the trial court had chosen not to make any findings in mitigation when the opportunity first arose and reminded the trial court of the medical evidence that had proved first degree rape during the 2008 trial.
The trial court found Defendant's six prior record points amounted to a Prior Record Level III and made no findings of any mitigating (or aggravating) factors. Defendant was sentenced to imprisonment for a minimum term of 269 months and a maximum term of 332 months. The judgment and commitment was entered on the single first degree rape charge and indicated that the original sentence from 2008 was modified, awarding Defendant credit for 1,284 days spent in confinement prior to the date of resentencing.
I.
Defendant argues that he is entitled to a new sentencing hearing because the trial court erroneously imposed a new sentence at the 2010 resentencing which is more severe that the prior 2008 offense for the same rape offense, in violation of N.C. Gen. Stat. § 15A-1335. We disagree.
Defendant relies on the statutory prohibition against the imposition of more severe sentences after appeal. Certain limitations on resentencing after appeal review provide that "[w]hen a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense . . . which is more severe than the prior sentence." N.C. Gen. Stat. § 15A-1335 (2009). Moreover, as Defendant notes, "the prohibition against imposing more severe sentences after appeal applies to offenses charged and convictions thereon, not to an aggregate term of years." State v. Nixon, 119 N.C. App. 571, 573, 459 S.E.2d 49, 50 (1995) (internal citation omitted). Defendant cites Nixon and State v. Hemby, 333 N.C. 331, 426 S.E.2d 77 (1993), for the proposition that N.C. Gen. Stat. § 15A-1335 can be violated even if "the defendant's aggregate term of imprisonment remained the same as it had been before appeal," Nixon, 119 N.C. App. at 574, 459 S.E.2d at 51, as was the case here. Defendant's 2008 and 2010 sentences identically imposed 269 months' imprisonment even though the State voluntarily dismissed the sex offense case and resentencing accordingly proceeded on one offense rather than the two consolidated for judgment in 2008.
However, this Court has explained that
[w]hile G.S. § 15A-1335 has been interpreted to prohibit the trial court from imposing a more severe sentence because of reweighing factors in aggravation or because of finding new factors in aggravation, where the trial court is required by statute to impose a particular sentence (on resentencing) G.S. § 15A-1335 does not apply to prevent the imposition of a more severe sentence.
State v. Kirkpatrick, 89 N.C. App. 353, 354-55, 365 S.E.2d 640, 641 (1988) (internal citation omitted). We have held that N.C. Gen. Stat. § 15A-1335 is clearly limited "to the situation where the trial judge is weighing aggravating and mitigating factors on resentencing a defendant or on sentencing a defendant after a new trial" and "prohibits the trial judge from imposing a more severe sentence because of reweighing aggravating factors, or because of new aggravating factors." State v. Williams, 74 N.C. App. 728, 730, 329 S.E.2d 709, 710 (1985). The trial judge in Williams "was imposing the minimum and the presumptive sentence," was without discretion to impose a sentence of less than that, and "did not weigh aggravating factors; therefore, [§ ] 15A-1335 did not apply." Id.
Here, where the trial court on resentencing imposed the presumptive, statutory minimum sentence, N.C. Gen. Stat. § 15A-1335 likewise did not apply. For, no reweighing of aggravating factors occurred on resentencing nor was any new aggravating factor considered. Additionally, the trial court had declined to find any mitigating sentencing factors and, therefore, had no discretion to impose a lesser minimum term by deviating from the presumptive range by which the trial court was bound. See N.C. Gen. Stat. § 15A-1340.13(b)-(c) (2009) (requiring trial courts to impose "a sentence disposition specified for the class of offense and prior record level" and a minimum term of imprisonment within the range provided therefor, as the judgment must also contain a minimum term consistent with the class of offense and prior record level); see also N.C. Gen. Stat. § 15A-1340.13(e) (proscribing sentence dispositional deviation unless the trial court finds that aggravating or mitigating circumstances support such a deviation).
II.
Defendant argues that the trial court's orders for lifetime registration and SBM must be vacated because conclusions that Defendant was convicted of a reportable conviction and that the offense of conviction was an aggravated offense were erroneous. However, because SBM proceedings related to Defendant's first degree rape conviction were originally heard and ruled upon following Defendant's 2008 trial and there is no indication that the registration and SBM orders rendered at that time no longer stand, see supra note 2, the trial court was without jurisdiction to again direct Defendant to register and enroll in the SBM program.
Although the question as to whether the trial court had subject matter jurisdiction to enter the lifetime registration and SBM order was not raised at the resentencing hearing, we may consider this issue for the first time on appeal. See State v. Reinhardt, 183 N.C. App. 291, 292, 644 S.E.2d 26, 27 (2007) ("In this case, defendant did not raise the issue of subject matter jurisdiction before the trial court. However, a defendant may properly raise this issue at any time, even for the first time on appeal."). "[W]hether a trial court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo." State v. Black, 197 N.C. App. 373, 377, 677 S.E.2d 199, 202 (2009) (internal quotation marks and citation omitted).
Jurisdiction is "[t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it." The court must have subject matter jurisdiction, or "[j]urisdiction over the nature of the case and the type of relief sought," in order to decide a case. "A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity."
The General Assembly "within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State." "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."
State v. Wooten, 194 N.C. App. 524, 527, 669 S.E.2d 749, 750 (2008) (internal citations omitted).
Recently, this Court, in State v. Clayton, ___ N.C. App. ___, 697 S.E.2d 428 (2010), agreed with the defendant's contention "that the trial court lacked jurisdiction to order defendant to enroll in SBM for a period of ten years following a probation violation, where the trial court had previously held a SBM hearing and ordered that defendant was not required to enroll in SBM." Clayton, ___ N.C. App. at ___, 697 S.E.2d at 431. Although the pertinent SBM determination in Clayton was controlled by N.C. Gen. Stat. § 14-208.40B, rather than § 14-208.40A, our discussion there informs our consideration in the case sub judice. See id. at ___, 697 S.E.2d at 432 (noting that both of these statutes "set forth the procedures for SBM hearings," where "§ 14-208.40A applies in cases in which . . . the trial court consider[s] SBM during the sentencing phase of an applicable conviction," and "§ 14-208.40B applies in cases in which the offender has been convicted of an applicable conviction and the trial court has not previously determined whether the offender must be required to enroll in SBM". Similarly to Clayton, the trial court in this instance had already considered Defendant's SBM eligibility, cf. id. at ___, 697 S.E.2d at 432 ("Here, on 19 May 2008, the trial court held defendant's 2008 SBM hearing pursuant to N.C. Gen. Stat. § 14-208.40B. Thus, the trial court had `previously determined whether the offender must be required to enroll in SBM.'"), finding an offense of conviction to be reportable and ordering Defendant to submit to SBM.
A footnote in Clayton is telling, as this Court observed that despite apparent flaws in the earlier SBM procedures, "the State did not appeal from the 2008 SBM order denying its request for SBM enrollment, so we have no jurisdiction to consider the 2008 SBM order. In addition, the State makes no argument on appeal that the order from the 2008 SBM hearing was in error." Id. at ___ n. 3, 697 S.E.2d at 432 n. 3 (internal citation omitted). Likewise, the absence of any discussion in Streater I regarding the 2008 SBM and registration orders suggests that Defendant either did not appeal those determinations or failed to preserve any assignment of error related thereto by foregoing discussion of the 2008 SBM order in his brief. Also, as in Clayton, Defendant makes no argument in the instant appeal that the 2008 judgment incorporating registration and SBM requirements was in error and, instead, focuses entirely on the 2010 SBM order, which the trial court lacked jurisdiction to enter. We explained that even if there were procedural deficiencies in the first SBM hearing and order,
Thus, even if we granted Defendant's request to treat his argument as a petition for writ of certiorari to review the trial court's 2010 sex offender registration and SBM orders, based on his giving oral notice of appeal, he makes no similar request as to the 2008 order which remains effective and binding on Defendant.
this appeal is based upon the order resulting from defendant's [second] SBM hearing conducted in Superior Court. . . . The trial court did not have any basis to conduct another SBM hearing, where it had already held an SBM hearing based upon the same reportable convictions in 2008. The record contains no indication that between 19 May 2008 and 5 March 2009 defendant was convicted of another "reportable conviction" which could trigger another SBM hearing based upon the new conviction. . . . Therefore, the trial court did not have jurisdiction to conduct the [second] SBM hearing. . . . The SBM statutes do not provide for reassessment of defendant's SBM eligibility based on the same reportable conviction, after the initial SBM determination is made based on that conviction.
Id. at ___, 697 S.E.2d at 432.
We understand that the 2008 SBM order appears on the consolidated judgment for two convictions and does not designate which is, or if both are, reportable. We also acknowledge that resentencing on one of multiple consolidated convictions may, in several cases, affect the justification for a prior registration and SBM order where conviction subject to resentencing is not a reportable one. However, this circumstance does not alter the fact that the 2008 order remains unchallenged and unreversed such that the trial court was without jurisdiction to again require Defendant to register as a sex offender and enroll in SBM in 2010. Accordingly, we vacate the trial court's 2010 lifetime registration and SBM orders and emphasize that Defendant is still required to comply with the dictates of the 2008 registration and SBM orders.
III.
Defendant argues that the trial court's lifetime SBM order must be vacated because it violates the ex post facto clauses of the federal and state constitutions. The United States and North Carolina Constitutions prohibit ex post facto laws, see U.S. Const. art. I, § 10, cl. 1; N.C. Const. art. I, § 16, which "may be defined, as relevant here, as a law that `allows imposition of a different or greater punishment than was permitted when the crime was committed.'" State v. Barnes, 345 N.C. 184, 233-34, 481 S.E.2d 44, 71 (1997) (quoting State v. Vance, 328 N.C. 613, 620, 403 S.E.2d 495, 500 (1991)); see also State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (explaining that "both the federal and state constitutional ex post facto provisions are evaluated under the same definition"). Defendant concedes, however, that this Court has held to the contrary, stating on several occasions that the SBM program does not violate ex post facto prohibitions. See, e.g., State v. Bare, 197 N.C. App. 461, 478, 677 S.E.2d 518, 531 (2009) (holding retroactive application of SBM provisions does not violate ex post facto clauses because restrictions imposed by SBM program "do not negate the legislature's expressed civil intent" and effects of program were not shown to be "sufficiently punitive to transform the civil remedy into criminal punishment"), disc. review denied, ___ N.C. ___, 702 S.E.2d 492 (2010); accord State v. Stines, ___ N.C. App. ___, ___, 683 S.E.2d 411, 413 (2009); State v. Anderson, 198 N.C. App. 201, 204-05, 679 S.E.2d 165, 167 (2009), disc. review denied, ___ N.C. ___, 702 S.E.2d 491 (2010). Defendant explains that he "presents this argument here in order to preserve it for further review," as the precise legal issue was pending before the Supreme Court of North Carolina at the time he was drafting his brief.
However, where we have already determined that Defendant failed to preserve his registration and SBM arguments, this constitutional challenge to the 2010 lifetime SBM order is not properly before this Court.
In any event, we note that not only is this Court required to follow its own precedent, as set out in Bare, see In the Matter of Appeal From Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court."), but our Supreme Court has also laid down the awaited decision, resolving the issue in State v. Bowditch, 364 N.C. 335, 700 S.E.2d 1 (2010). There, the Court "conclude[d] that neither the purpose nor effect of the SBM program negates the legislature's civil intent" such that "subjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution." Bowditch, 364 N.C. at 352, 700 S.E.2d at 13. Accordingly, we would dismiss Defendant's argument disputing his eligibility for SBM based on ex post facto grounds had it been preserved.
IV.
Defendant's final argument — that the trial court erred in its 2010 lifetime SBM enrollment order made off the record, without prior notice, and not in Defendant's presence — is also based on the order entered without subject matter jurisdiction. Accordingly, we likewise dismiss this argument for Defendant's failure to preserve the issue.
No error in part; Vacated in part.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).