STATE v. LINEBERGER (2012)

On 6 August 2007, defendant entered an Alford plea to two counts of taking indecent liberties with a child and one count of possession of a firearm by a felon.   The charges were consolidated for judgment and the trial court sentenced defendant to 39 to 47 months imprisonment.

On 4 November 2010, the North Carolina Department of Correction wrote defendant a letter informing him that he was to appear for a satellite-based monitoring (“SBM”) determination hearing on 24 January 2011 in Forsyth County Superior Court.   Thereafter, the trial court appointed counsel to represent defendant.   On 29 April 2011, the trial court found defendant to be a recidivist and ordered him to enroll in a SBM program for the remainder of his natural life. Defendant gave oral notice of appeal in open court.

 First, defendant has not properly appealed this case.   This Court has held that “oral notice pursuant to N.C.R.App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court” when a defendant appeals from a trial court's order requiring him to enroll in SBM. State v. Brooks, 204 N.C.App. 193, 194, 693 S.E.2d 204, 206 (2010).   Instead, defendant must give written notice of appeal in accordance with N.C.R.App. P. 3(a) (2012).  Brooks, 204 N.C.App. at 194, 693 S.E.2d at 206.   Since defendant only gave oral notice of appeal, his appeal is not properly before this Court and is subject to dismissal.   Recognizing that he failed to provide proper notice of appeal, defendant filed a petition for writ of certiorari with this Court 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) (2012).   This Court has, in the interest of justice, granted certiorari where the defendant failed to properly appeal pursuant to Rule 3(a).  State v. Clark, ––– N.C.App. ––––, ––––, 714 S.E.2d 754, 762 (2011), disc. review denied, ––– N.C. ––––, 722 S.E.2d 595 (2012);  State v. Stokes, ––– N.C.App. ––––, ––––, 718 S.E.2d 174, 180 (2011).   In our discretion, we grant certiorari to hear defendant's appeal in this case.

 Second, counsel appointed to represent defendant on appeal has filed an Anders brief indicating he “has been unable to identify any non-frivolous issue that could be raised in this appeal.” He asks this Court to conduct its own review of the record for possible prejudicial error in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985).  “Our Court has held that SBM hearings and proceedings are not criminal actions, but are instead a ‘civil regulatory scheme[.]’ ” Brooks, 204 N.C.App. at 194, 693 S.E.2d at 206 (quoting State v. Bare, 197 N.C.App. 461, 472, 677 S.E.2d 518, 527 (2009) (alteration in original)).  “[T]his jurisdiction has not extended the procedures and protections afforded in Anders and Kinch to civil cases.”  In re Harrison, 136 N.C.App. 831, 832, 526 S.E.2d 502, 502 (2000).   Nevertheless, in the exercise of our discretion pursuant to N.C. R.App. P. Rule 2 (2012), we have reviewed the record and found no error.   Consequently, we affirm the trial court's SBM order.

Affirmed.

HUNTER, ROBERT C., Judge.

Judges STROUD and ERVIN concur.