State v. Massey

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2014
• Docket: 14-27
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .

NO. COA14-27

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. New Hanover County No. 13 CRS 5736 JESSE JOSEPH MASSEY

Appeal by defendant from order entered 13 August 2013 by

Judge W. Allen Cobb, Jr., in New Hanover County Superior Court.

Heard in the Court of Appeals 30 June 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.

James W. Carter for defendant-appellant.

BRYANT, Judge.

Where the arguments presented on appeal have previously

been rejected by prior panels of our appellate Courts, we reject

defendant’s arguments in the instant case.

On 13 June 2000, defendant pled guilty to indecent

liberties with a child in Pitt County (00 CRS 4855) and was -2- sentenced to 12 to 15 months imprisonment. The State dismissed

a statutory rape charge in exchange for defendant’s plea. On 4

June 2003, defendant pled guilty to second-degree sexual offense

in Stanly County (02 CRS 50379) and was sentenced to a term of

120 to 153 months. In that case, the State agreed to dismiss

charges of first-degree sexual offense and indecent liberties.

On 23 May 2013, defendant received notice of a Satellite-

Based Monitoring (“SBM”) enrollment hearing. Defendant filed a

motion to dismiss the SBM action on 30 July. At a hearing on 13

August 2013, the trial court denied defendant’s motion to

dismiss and ordered him to enroll in lifetime SBM. Defendant

appeals.

__________________________________

Defendant presents four arguments on appeal: (I) his SBM

enrollment violates the state and federal constitutional ex post

facto clauses because the SBM law was enacted after he pled

guilty; (II) his SBM enrollment violates his due process rights

because SBM enrollment was not an enumerated condition of his

plea agreement; (III) his SBM enrollment violates constitutional

double jeopardy protections because it constitutes additional

punishment for his offenses; and (IV) his SBM enrollment

violates his right to be free from cruel and unusual punishment -3- because wearing the monitoring equipment will subject him to

public scorn. However, as defendant acknowledges in his brief,

our appellate courts have rejected each of his arguments in

prior cases, and we are bound by that precedent. In re Civil

Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989).

First, our Supreme Court overruled defendant’s ex post

facto argument in State v. Bowditch, 364 N.C. 342, 700 S.E.2d 1

(2010), because SBM constitutes “a civil, regulatory scheme to

protect citizens of our state from the threat posed by the

recidivist tendencies of convicted sex offenders” and not a

criminal punishment. Id. at 352, 700 S.E.2d at 12. Defendant

asks this Court to reconsider Bowditch in light of the United

States Supreme Court’s subsequent holding in United States v.

Jones, ___ U.S. ___, 132 S. Ct. 945 (2012), but we are without

authority to overrule that case. See Nunn v. Allen, 154 N.C.

App. 523, 530, 574 S.E.2d 35, 40 (2002) (“This Court has no

authority to overrule decisions of the North Carolina Supreme

Court.” (citation omitted)).

Next, as defendant concedes, we have previously rejected

his argument that failure to advise a defendant he would be

subject to SBM registration as a consequence of his plea

agreement, which was entered into prior to the enactment of the -4- SBM statute, violated the defendant’s due process rights. State

v. Bare, 197 N.C. App. 461, 479—80, 677 S.E.2d 518, 531—32

(2009) (holding that where, as here, the trial court scheduled a

hearing as to SBM, “the imposition of SBM was not an automatic

result of [defendant’s] no contest plea”).

Third, defendant argues that SBM registration violated the

constitutional prohibition against double jeopardy, but

acknowledges that this argument lacks merit based on the

reasoning adopted in Bowditch. See State v. Anderson, 198 N.C.

App. 201, 204—05, 679 S.E.2d 165, 167 (2009) (holding that

because SBM is a civil regulatory scheme, it does not violate

the double jeopardy clause).

Finally, defendant argues that SBM enrollment subjects him

to cruel and unusual punishment, but again acknowledges that our

courts have already rejected this contention. See State v.

Jarvis, ___ N.C. App. ___, ___, 715 S.E.2d 252, 262 (2011)

(holding that SBM does not constitute cruel and unusual

punishment because it is a civil regulatory scheme).

In sum, because all of defendant’s arguments have

previously been rejected by our appellate courts, we are

compelled to reject those arguments in this case. Accordingly,

the trial court’s order is affirmed. -5- Affirmed.

Judges STROUD and HUNTER, Robert N., Jr., concur.

Report per Rule 30(e).