{ "id": 4181146, "name": "STATE OF NORTH CAROLINA v. MIKE MILLER", "name_abbreviation": "State v. Miller", "decision_date": "2011-02-01", "docket_number": "No. COA10-911", "first_page": "466", "last_page": "469", "citations": [ { "type": "official", "cite": "209 N.C. App. 466" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "364 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152728 ], "opinion_index": -1, "case_paths": [ "/nc/364/0335-01" ] }, { "cite": "683 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "431 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "334 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529622 ], "year": 1993, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0115-01" ] }, { "cite": "194 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "283 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557730 ], "year": 1973, "pin_cites": [ { "page": "96-97" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0094-01" ] }, { "cite": "696 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "689 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "677 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "273 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "302 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564272 ], "year": 1981, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0173-01" ] }, { "cite": "593 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917729 ], "year": 2004, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "364 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152728 ], "opinion_index": 0, "case_paths": [ "/nc/364/0335-01" ] } ], "analysis": { "cardinality": 389, "char_count": 8145, "ocr_confidence": 0.728, "pagerank": { "raw": 5.989406066647367e-08, "percentile": 0.37228097082107875 }, "sha256": "22fd0896100f2414719e774467eeaf4504d446a13ce94e49c03709f39f196329", "simhash": "1:0f43f02966bbb70b", "word_count": 1267 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MIKE MILLER" ], "opinions": [ { "text": "STEPHENS, Judge.\nIn November 2006, Defendant Mike Miller was convicted of one count of misdemeanor attempted sexual battery in Rowan County District Court. The district court sentenced Defendant to one hundred twenty days in prison, suspended the sentence, and placed Defendant on supervised probation for twenty-four months, with a special condition that he serve thirty days in jail. The district court also ordered Defendant to register as a sex offender and comply with the North Carolina Division of Community Corrections Sex Offender Control Program. The program required Defendant to participate in various evaluation and treatment programs, have no unsupervised contact with minor children, not possess any pornography or consume drugs or alcohol, and submit to warrantless searches.\nOn 15 September 2009, the district court held a hearing in response to allegations that Defendant had violated terms of his probation. After finding that Defendant had committed certain violations, the district court activated Defendant\u2019s one-hundred-twenty-day sentence. Defendant did not appeal from this order. Immediately following the probation revocation hearing, the district court held a hearing pursuant to N.C. Gen. Stat. \u00a7 14-208.40B to determine Defendant\u2019s eligibility for satellite-based monitoring (\u201cSBM\u201d). On the same day, the district court entered an order finding that Defendant was a recidivist who must enroll in lifetime SBM. Defendant appealed to superior court.\nOn 18 March 2010, following a de novo hearing on the matter, the superior court entered an order finding that Defendant was a recidivist and ordering him to enroll in lifetime SBM. On 25 June 2010, Defendant filed a petition for writ of certiorari; by order of 13 July 2010, this Court dismissed Defendant\u2019s petition without prejudice to his right to re-file after first filing a record on appeal. On 2 August 2010, Defendant filed a record on appeal and re-filed his petition for writ of certiorari. We allow Defendant\u2019s petition and address his arguments here.\nIn his petition, Defendant brings forward four arguments: that (I) the district court lacked subject matter jurisdiction to order him to enroll in lifetime SBM; (II) the superior court lacked subject matter jurisdiction when it ordered him to enroll in SBM; (HO the SBM program violates constitutional prohibitions on ex post facto laws and double jeopardy; and (IV) he received ineffective assistance of counsel at the SBM hearings. As discussed below, we vacate the district and superior court orders requiring Defendant to enroll in lifetime SBM.\nI\nDefendant first argues that the district court lacked subject matter jurisdiction to order him to enroll in lifetime SBM. We agree.\nDefendant did not raise this issue below; however, issues of subject matter jurisdiction may be raised at any time. Ales v. T.A. Loving Co., 163 N.C. App. 350, 352, 593 S.E.2d 453, 455 (2004). As the State concedes, N.C. Gen. Stat. \u00a7 14-208.40B(b) requires that hearings pursuant thereto be held \u201cin superior court for the county in which the offender resides.\u201d N.C. Gen. Stat. \u00a7 14-208.40B(b) (2009). Thus, the district court lacked subject matter jurisdiction to conduct a hearing on Defendant\u2019s eligibility for enrollment in lifetime SBM. \u201cWhen the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.\u201d State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981). Thus, we vacate the district court\u2019s 15 September 2009 order.\nII\nDefendant also argues that the superior court lacked subject matter jurisdiction when it ordered him to enroll in SBM. We agree.\nAs Defendant contends and the State again concedes, the superior court lacked subject matter jurisdiction when it ordered him to enroll in SBM. SBM is a civil regulatory scheme, State v. Bare, - N.C. App. \u2014, -, 677 S.E.2d 518, 524 (2009), disc. review denied, N.C. -, - S.E.2d -(2010), and hearings on SBM eligibility are civil proceedings. State v. Singleton, - N.C. App. -, -, 689 S.E.2d 562, 565, disc. review allowed, 364 N.C. 131, 696 S.E.2d 697, disc. review improvidently allowed, \u2014 N.C. \u2014, \u2014 S.E.2d \u2014 (2010). An appeal from a final judgment in a civil action in district court lies in this Court, rather than in the superior court. N.C. Gen. Stat. \u00a7 7A-27(c) (2009). Because the district court\u2019s 15 September 2009 order purporting to order Defendant to enroll in SBM was from a civil proceeding, the superior court lacked subject matter jurisdiction to hear Defendant\u2019s appeal from it. Where a case reaches superior court through improper channels, the superior court proceedings must be vacated. State v. Guffey, 283 N.C. 94, 96-97, 194 S.E.2d 827, 829 (1973). We thus vacate the superior court\u2019s 18 March 2010 order.\nIII\nDefendant also argues that SBM violates the ex post facto and double jeopardy prohibitions of the United States and North Carolina constitutions. We disagree.\nDefendant acknowledges that the North Carolina Supreme Court has previously held that the SBM program is a civil regulatory scheme that does not implicate constitutional protections against either ex post facto laws or double jeopardy, State v. Bowditch, 364 N.C. 335, S.E.2d (2010), but asks that this Court reconsider the issue. However, we are bound by the decisions of our Supreme Court. See Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993).\nIV\nDefendant next argues that he received ineffective assistance of counsel (\u201cIAC\u201d) to the extent his counsel at the SBM hearings failed to preserve the issue of double jeopardy for appeal. Because we have vacated both the district and superior court orders, we need not address Defendant\u2019s contentions on this point. However, we do note in passing that IAC claims are not available in civil appeals such as that from an SBM eligibility hearing. See State v. Wagoner, \u2014 N.C. App. -, 683 S.E.2d 391 (2009).\nVacated.\nJudges GEER and THIGPEN concur.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Lisa Y. Harper, for the State.", "Daniel M. Blau for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MIKE MILLER\nNo. COA10-911\n(Filed 1 February 2011)\n1. Jurisdiction\u2014 subject matter \u2014 district court \u2014 satellite-based monitoring order\nThe district court lacked subject matter jurisdiction to order defendant to enroll in lifetime satellite-based monitoring because N.C.G.S. \u00a7 14-208.40B(b) requires that hearings pursuant thereto be held in superior court for the county in which the offender resides.\n2. Jurisdiction\u2014 subject matter \u2014 superior court \u2014 satellite-based monitoring\nThe superior court lacked subject matter jurisdiction to order defendant to enroll in lifetime satellite-based monitoring (SBM). Because the district court\u2019s order purporting to order defendant to enroll in SBM was from a civil proceeding, the superior court lacked subject matter jurisdiction to hear defendant\u2019s appeal from it.\n3. Constitutional Law\u2014 ex post facto prohibition \u2014 double jeopardy prohibition \u2014 satellite-based monitoring \u2014 civil regulatory scheme\nDefendant\u2019s argument that satellite-based monitoring (SBM) violates the ex post facto and double jeopardy prohibitions of the United States and North Carolina constitutions was overruled. The Court of Appeals was bound by the North Carolina Supreme Court\u2019s decision in State v. Bowditch, 364 N.C. 335, holding that the SBM program is a civil regulatory scheme that does not implicate constitutional protections against either ex post facto laws or double jeopardy.\n4. Constitutional Law\u2014 effective assistance of counsel\u2014 argument not addressed\nThe Court of Appeals did not address defendant\u2019s argument that he received ineffective assistance of counsel (IAC) in a satellite-based monitoring (SBM) hearing because the Court vacated both orders imposing SBM on defendant and IAC claims are not available in civil appeals such as from an SBM eligibility hearing.\nOn writ of certiorari by Defendant from order entered 18 March 2010 by Judge Theodore S. Royster, Jr., in Rowan County Superior Court. Heard in the Court of Appeals 13 January 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Lisa Y. Harper, for the State.\nDaniel M. Blau for Defendant." }, "file_name": "0466-01", "first_page_order": 476, "last_page_order": 479 }