State v. Bishop

805 S.E.2d 367, 255 N.C. App. 767, 2017 WL 4364391, 2017 N.C. App. LEXIS 806
CourtCourt of Appeals of North Carolina
DecidedOctober 3, 2017
DocketCOA17-55
StatusPublished
Cited by59 cases

This text of 805 S.E.2d 367 (State v. Bishop) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bishop, 805 S.E.2d 367, 255 N.C. App. 767, 2017 WL 4364391, 2017 N.C. App. LEXIS 806 (N.C. Ct. App. 2017).

Opinion

DIETZ, Judge.

*767 Defendant Robert Lewis Bishop appeals from the trial court's orders requiring him to enroll in satellite-based monitoring. Bishop did not timely appeal these orders. As explained below, because the arguments Bishop seeks to raise in this appeal are either procedurally barred or *768 meritless, in our discretion we decline to issue a writ of certiorari and dismiss this untimely appeal for lack of appellate jurisdiction.

Facts and Procedural History

A jury convicted Defendant Robert Lewis Bishop of three counts of taking indecent liberties with a child. The offenses occurred in 2015 and the victim was Bishop's five-year-old daughter. The trial court sentenced Bishop to three consecutive terms of 16 to 29 months in prison and ordered him to enroll in satellite-based monitoring for thirty years. Bishop did not challenge the trial court's imposition of satellite-based monitoring on constitutional grounds at the hearing.

Immediately after the trial court imposed its sentence and satellite-based monitoring order, the court stated, "We have another matter to take care of, I believe?" Bishop then entered an Alford plea to two additional counts of indecent liberties with a child. These two additional offenses occurred more than a decade before Bishop's criminal acts against his daughter. The basis of these new offenses was information, apparently obtained while investigating Bishop's crimes *369 against his daughter, that Bishop also had sexually molested his younger brothers. One of Bishop's brothers told the trial court that Bishop "spent his entire life molesting children and getting away with it."

The trial court sentenced Bishop to suspended sentences of 19 to 23 months in prison for these offenses, found that Bishop qualified as a recidivist, and therefore ordered Bishop to enroll in satellite-based monitoring for life. As before, Bishop did not challenge the imposition of this new satellite-based monitoring order on constitutional grounds. Bishop also did not timely appeal either of the trial court's orders imposing satellite-based monitoring. Bishop later filed a petition for writ of certiorari, asking this Court to review the trial court's satellite-based monitoring orders.

Analysis

I. Imposition of Satellite-Based Monitoring

Bishop argues that the trial court erred by ordering him to enroll in satellite-based monitoring without conducting a Grady hearing to determine whether that monitoring was reasonable under the Fourth Amendment. Bishop concedes that his argument suffers from two separate error preservation issues. First, Bishop did not make this constitutional argument to the trial court, as the law requires. Second, Bishop did not timely appeal the trial court's satellite-based monitoring orders. Bishop therefore asks this Court to take two extraordinary steps to *769 reach the merits, first by issuing a writ of certiorari to hear this appeal, and then by invoking Rule 2 of the North Carolina Rules of Appellate Procedure to address his unpreserved constitutional argument. In our discretion, we decline to do so.

This Court has discretion to allow a petition for a writ of certiorari "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). A writ of certiorari is not intended as a substitute for a notice of appeal. If this Court routinely allowed a writ of certiorari in every case in which the appellant failed to properly appeal, it would render meaningless the rules governing the time and manner of noticing appeals. Instead, as our Supreme Court has explained, "[a] petition for the writ must show merit or that error was probably committed below." State v. Grundler , 251 N.C. 177 , 189, 111 S.E.2d 1 , 9 (1959).

Here, Bishop has not shown that his argument (on direct appeal, at least) is meritorious or that the trial court probably committed error. Indeed, Bishop concedes that the argument he seeks to raise is procedurally barred because he failed to raise it in the trial court. We recognize that this Court previously has invoked Rule 2 to permit a defendant to raise an unpreserved argument concerning the reasonableness of satellite-based monitoring. State v. Modlin , --- N.C. App. ----, 796 S.E.2d 405 , 2017 WL 676957 , at *2-3 (2017) (unpublished). But the Court did so in Modlin because, at the time of the hearing in that case, "[n]either party had the benefit of this Court's analysis in Blue and Morris ." Id. at *2. In Blue and Morris , this Court outlined the procedure defendants must follow to preserve a Fourth Amendment challenge to satellite-based monitoring in the trial court. State v. Blue , --- N.C. App. ----, ----, 783 S.E.2d 524 , 525-26 (2016) ; State v. Morris , --- N.C. App. ----, ----, 783 S.E.2d 528 , 528-29 (2016).

This case is different from Modlin because Bishop's satellite-based monitoring hearing occurred several months after this Court issued the opinions in Blue and Morris . Thus, the law governing preservation of this issue was settled at the time Bishop appeared before the trial court. As a result, the underlying reason for invoking Rule 2 in Modlin is inapplicable here and we must ask whether Bishop has shown any other basis for invoking Rule 2.

He has not. Bishop's argument for invoking Rule 2 relies entirely on citation to previous cases such as Modlin , where the Court invoked Rule 2 because of circumstances unique to those cases. In the absence of any argument specific to the facts of this case, Bishop is no different *770

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Locklear
Court of Appeals of North Carolina, 2026
State v. Vaughn
Court of Appeals of North Carolina, 2025
State v. Davis
Court of Appeals of North Carolina, 2025
State v. Jett
Court of Appeals of North Carolina, 2025
State v. Gardner
Court of Appeals of North Carolina, 2025
In re: D.R.J.
Court of Appeals of North Carolina, 2024
State v. Walston
Court of Appeals of North Carolina, 2024
State v. Rager
Court of Appeals of North Carolina, 2024
State v. Perkins
Court of Appeals of North Carolina, 2022
LouEve
Court of Appeals of North Carolina, 2022
Gouch v. Rotunno
Court of Appeals of North Carolina, 2022
In re: R.A.F. & R.G.F.
Court of Appeals of North Carolina, 2022
State v. Ricks
Supreme Court of North Carolina, 2021
State v. Barnes
Court of Appeals of North Carolina, 2021
State v. Gordon
Court of Appeals of North Carolina, 2021
State v. Spinks
Court of Appeals of North Carolina, 2021
State v. Perez
Court of Appeals of North Carolina, 2020
State v. Tysinger
Court of Appeals of North Carolina, 2020
State v. Thompson
Court of Appeals of North Carolina, 2020
State v. Patterson
Court of Appeals of North Carolina, 2020

Cite This Page — Counsel Stack

Bluebook (online)
805 S.E.2d 367, 255 N.C. App. 767, 2017 WL 4364391, 2017 N.C. App. LEXIS 806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bishop-ncctapp-2017.