IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-306

No. COA20-550

Filed 6 July 2021

Iredell County, No. 06 CRS 55851

STATE OF NORTH CAROLINA

v.

O.C. BILLINGS

Appeal by defendant from order entered 2 March 2020 by Judge Joseph N. 

Crosswhite in Iredell County Superior Court. Heard in the Court of Appeals 27 April 

2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya 

Calloway-Durham, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. 

Grant, for defendant-appellant.

ZACHARY, Judge.

¶ 1 Defendant O.C. Billings appeals from the trial court’s order continuing his 

enrollment in satellite-based monitoring following our Supreme Court’s opinion in 

State v. Grady (“Grady III”), 372 N.C. 509, 831 S.E.2d 542 (2019). After careful 

review, we vacate the trial court’s order.

Background

¶ 2 On 28 September 2006, Defendant pleaded guilty to 14 counts of taking 
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indecent liberties with a child, and was sentenced to 31 to 38 months of

imprisonment.

¶ 3 Thereafter, the General Assembly established the state’s satellite-based 

monitoring program for sex offenders. See generally N.C. Gen. Stat. § 14-208.40 et 

seq. (2019); see also 2007 N.C. Sess. Laws 340, 340–48, ch. 213. The program classifies 

sex offenders into several different categories, among them the category of “recidivist” 

as defined by § 14-208.6(2b). N.C. Gen. Stat. § 14-208.40(a)(1). If a trial court finds 

that an offender is a recidivist, “the court shall order the offender to enroll in satellitebased monitoring for life.” Id. §§ 14-208.40A(c), -208.40B(c). On 29 April 2009, 

following a bring-back hearing pursuant to N.C. Gen. Stat. § 14-208.40B, the trial 

court classified Defendant as a recidivist and ordered him to enroll in satellite-based 

monitoring for the remainder of his natural life.

¶ 4 By opinion issued on 16 August 2019, our Supreme Court in Grady III

considered both facial and as-applied challenges to the constitutionality of the state’s 

satellite-based program with respect to “individuals who are subject to mandatory 

lifetime [satellite-based monitoring] based solely on their status as a statutorily 

defined ‘recidivist’ who have completed their prison sentences and are no longer 

supervised by the State through probation, parole, or post-release supervision.” 372 

N.C. at 522, 831 S.E.2d at 553 (footnote omitted). The Court concluded that satellitebased monitoring is “unconstitutional as applied to all” such individuals. Id. at 511, 
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831 S.E.2d at 547.

¶ 5 Our Supreme Court recognized that “unsupervised individuals . . . , unlike 

probationers and parolees, are not on the continuum of possible criminal 

punishments and have no ongoing relationship with the State.” Id. at 531, 831 S.E.2d 

at 559–60 (citation and internal quotation marks omitted). As a result, for this class 

of unsupervised individuals, “constitutional privacy rights, including [their] Fourth 

Amendment expectations of privacy, have been restored.” Id. at 534, 831 S.E.2d at 

561. Among its reasons for concluding that the satellite-based program is 

unconstitutional as applied to this class of individuals, the Court observed that “the 

provisions governing recidivists present no opportunity for determinations by the 

court regarding what particular risk, if any, is posed by the individual and whether 

a particular duration of [satellite-based monitoring] will, in any meaningful way, 

serve the State’s interest in combating that risk.” Id. at 546, 831 S.E.2d at 569. The 

Court thus concluded that “the Fourth Amendment, which secures the privacies of 

life against arbitrary power and places obstacles in the way of a too permeating police 

surveillance, prohibits the mandatory imposition of lifetime [satellite-based 

monitoring] on this class of individuals.” Id. (citation and internal quotation marks 

omitted).

¶ 6 Accordingly, our Supreme Court fashioned a remedy for Mr. Grady and all 

similarly situated individuals that was “neither squarely facial nor as-applied.” Id.
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The Court explained the facial aspects of its holding:

[O]ur holding is facial in that it is not limited to [Mr. 

Grady]’s particular case but enjoins application of 

mandatory lifetime [satellite-based monitoring] to other 

unsupervised individuals when the [satellite-based 

monitoring] is authorized based solely on a “recidivist” 

finding that does not involve a sexually violent predator 

classification, an aggravated offense, or statutory rape or 

statutory sex offense with a victim under the age of 

thirteen by an adult.

Id. at 547, 831 S.E.2d at 570.

¶ 7 The Department of Public Safety developed two lists of individuals whose 

enrollments in satellite-based monitoring were potentially affected by our Supreme 

Court’s opinion in Grady III.

1 Defendant was named in one of those lists. On 26 

November 2019, the North Carolina Conference of District Attorneys circulated a 

“Best Practices” memo to all of the elected district attorneys in the state, providing 

guidance on how to conduct “Satellite[-]Based Monitoring Review Hearings” for the 

named individuals in light of Grady III. In accordance with this memo, the State 

scheduled a satellite-based monitoring review hearing in Defendant’s case. The 

parties stipulate that the State served Defendant with notice of the hearing, but did 

not file any written motion, application, or other pleading. 

¶ 8 On 2 March 2020, Defendant’s satellite-based monitoring review came on for 

 

1 The criteria followed by the Department of Public Safety in the creation of these lists 

is not clear from the record.
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hearing before the Honorable Joseph N. Crosswhite in Iredell County Superior Court. 

The State presented the trial court with a newly completed Static-99R risk 

assessment, which indicated that Defendant had a “Well Above Average Risk” of 

recidivism. The State also provided an overview of Defendant’s criminal record: the 

prosecutor described the 2006 incident that gave rise to the 14 charges to which 

Defendant pleaded guilty, the events surrounding Defendant’s separate 2004 

conviction for taking indecent liberties with children, and Defendant’s several other 

prior convictions for non-sexual offenses.

¶ 9 Following its presentation of evidence, the State requested that the trial court 

impose lifetime satellite-based monitoring on Defendant, asserting that the Supreme 

Court’s opinion in Grady III did not bar such in Defendant’s case:

[THE STATE]: I would ask the Court to consider ordering 

him to comply with lifetime satellite-based monitoring 

based on the Static 99 evaluation, the risk of recidivism, 

and the threat that he’s demonstrated in these different 

communities in the past.

THE COURT: Yes, ma’am, and let me ask you this. I just 

want to make sure we’re clear. If the Court does order 

lifetime satellite-based monitoring, is that consistent with 

that recent decision?

[THE STATE]: Your Honor, the recent decision in Grady

applies only to lifetime satellite-based monitoring that’s 

ordered based on solely recidivism. That applies only when 

there’s been an order based on the statute that says if a 

person is a recidivist, he may automatically receive lifetime 

satellite-based monitoring. And I think that holding does 
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not bar the Court from making an independent inquiry 

through the Static 99 and determining that the defendant 

is high risk based on that evaluation and ordering lifetime 

satellite-based monitoring, or ordering satellite-based 

monitoring for a period of years. I think the Court is free to 

do either of those things.

THE COURT: Okay, thank you very much. 

¶ 10 After considering the arguments of Defendant, who appeared pro se, the trial 

court ordered Defendant to “continue to maintain the satellite-based monitoring” 

based on Defendant’s Static-99R score and “the totality of these circumstances[.]”

Defendant then attempted to give oral notice of appeal in open court, arguing that as 

a result of the Grady III decision, the trial court lacked authority to order him to 

submit to lifetime satellite-based monitoring.

¶ 11 The trial court entered a written order that states: “DEFENDANT SHALL 

REMAIN ON [SATELLITE-BASED MONITORING] DUE TO THE STATIC 99 

SCORE OF 8 AND [HIS] CRIMINAL HISTORY.” On 12 June 2020, pursuant to the 

30 May 2020 order of the Chief Justice of the Supreme Court of North Carolina 

extending filing deadlines due to the COVID-19 pandemic, Defendant timely filed his 

notice of appeal from the 2 March 2020 order. 

Discussion

¶ 12 Defendant raises four issues on appeal. First, Defendant argues that the trial 

court lacked jurisdiction to conduct a satellite-based monitoring hearing and to 

impose satellite-based monitoring on him on grounds other than recidivism. Then, 
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assuming arguendo that the trial court did possess jurisdiction to impose satellitebased monitoring on other grounds, Defendant argues that the trial court erred by 

(1) ordering satellite-based monitoring when the State failed to meet its burden of

showing reasonableness under the Fourth Amendment; (2) ordering Defendant to 

remain subject to satellite-based monitoring for the remainder of his natural life, as 

opposed to a term of years, in the absence of any statutory authority permitting such 

an order; and (3) conducting a satellite-based monitoring hearing without appointing 

counsel to represent Defendant, as required by N.C. Gen. Stat. §§ 7A-451(a)(18) and 

14-208.40B(b).

¶ 13 After careful review, we conclude that the trial court lacked jurisdiction to 

conduct the 2 March 2020 hearing. Accordingly, we vacate the trial court’s order

without prejudice to the State’s ability to file an application for satellite-based 

monitoring.

I. Standard of Review

¶ 14 “Whether a trial court has subject matter jurisdiction is a question of law,” 

which this Court reviews de novo. State v. Clayton, 206 N.C. App. 300, 303, 697 S.E.2d 

428, 431 (2010) (citation omitted). When an appellate court conducts de novo review, 

“the court considers the matter anew and freely substitutes its own judgment for that 

of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 

(2008) (citation and internal quotation marks omitted).
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II. Grady III Relief

¶ 15 As an initial matter, the State argues that Defendant is not entitled to relief 

under Grady III. In so arguing, the State misconstrues the basis for our Supreme 

Court’s ruling in that case.

¶ 16 As stated above, in Grady III, our Supreme Court concluded that satellitebased monitoring was not only unconstitutional as applied to that particular 

defendant, but also as applied to other similarly situated individuals. 372 N.C. at 546, 

831 S.E.2d at 569. Accordingly, the Court enjoined all

applications of mandatory lifetime [satellite-based 

monitoring] of unsupervised individuals authorized solely 

on a finding that the individual is a recidivist and without 

any findings that the individual was convicted of an 

aggravated offense, or is an adult convicted of statutory 

rape or statutory sex offense with a victim under the age of 

thirteen, or is a sexually violent predator.

Id. at 547, 831 S.E.2d at 570. 

¶ 17 At a bring-back hearing in 2009, Defendant was enrolled in mandatory lifetime 

satellite-based monitoring based solely on a finding that he was a recidivist, and 

without any findings that he was convicted of an aggravated offense, or was an adult 

convicted of statutory rape or statutory sex offense with a victim under the age of 

thirteen, or was classified as a sexually violent predator. Defendant is not currently

under any form of post-release supervision, and the record on appeal does not contain 

any indication that he was at the time of the 2 March 2020 hearing. He is thus 
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entitled to relief under Grady III.

¶ 18 Nonetheless, the State asserts that the 2 March 2020 hearing remedied any 

deficiencies in the original imposition of satellite-based monitoring on Defendant, and 

removed him from the Grady III class. The State maintains that Defendant “1) was 

provided reasonable opportunity for termination, via the March 2020 hearing, 

wherein 2) the Superior Court considered both his individualized assessment and the 

characteristics of his crimes in rendering a decision as to whether to maintain or

modify his prior [satellite-based monitoring] order.” Thus, the State claims,

Defendant is no longer entitled to relief under Grady III. 

¶ 19 The State’s argument is inapposite. Under Grady III, the State was enjoined 

from the continued application of unconstitutional satellite-based monitoring of 

Defendant. That the State subsequently chose to conduct a “review hearing” is 

immaterial. The State did not invoke the jurisdiction of the trial court for the 2 March 

2020 hearing during which Defendant was ostensibly provided with the post hoc

process that the State claims disqualifies him from relief under Grady III. The State 

cannot avoid Grady III, which enjoined the unconstitutional application of satellitebased monitoring in cases such as Defendant’s, by devising a procedure that itself 

violates Defendant’s rights.

¶ 20 Pursuant to the plain text of our Supreme Court’s opinion, Defendant falls 

within the class of individuals eligible for relief under Grady III. Hence, the State 
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was enjoined from subjecting Defendant to the continued application of satellitebased monitoring for the remainder of his life. If the State wished to reenroll 

Defendant in satellite-based monitoring, it had to proceed in a manner consistent 

with its statutory authority and procedural obligations. For the following reasons, we 

conclude that it did not.

III. Statutory Jurisdiction

¶ 21 Defendant argues that the trial court lacked jurisdiction to conduct the 2 

March 2020 hearing because (1) neither Grady III nor any statute permits the State 

to seek a rehearing of its application for satellite-based monitoring of a defendant 

eligible for relief under Grady III; and (2) “[t]he State filed no motion, application, or 

other pleading invoking the trial court’s jurisdiction under a rule of criminal or civil 

procedure.”

¶ 22 “Jurisdiction is the legal power and authority of a court to make a decision that 

binds the parties to any matter properly brought before it. . . . A universal principle 

as old as the law is that the proceedings of a court without jurisdiction of the subject 

matter are a nullity.” State v. Wooten, 194 N.C. App. 524, 527, 669 S.E.2d 749, 750 

(2008) (citations and internal quotation marks omitted), disc. review denied and cert. 

dismissed, 363 N.C. 138, 676 S.E.2d 308 (2009). 

¶ 23 Two statutes confer jurisdiction upon a trial court to enroll a qualifying 

individual in satellite-based monitoring. Section 14-208.40A requires the trial court 
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to conduct a satellite-based monitoring hearing “during the sentencing phase” of a 

criminal proceeding following a conviction. N.C. Gen. Stat. § 14-208.40A(a). This 

section is plainly inapplicable to Defendant’s case, because Defendant was initially 

enrolled in the satellite-based monitoring program approximately two and a half 

years after he was convicted and sentenced.

¶ 24 Section 14-208.40B similarly fails to provide a statutory basis for the State’s 

“satellite-based monitoring review hearing” that could apply in Defendant’s case. 

This section confers jurisdiction upon a trial court to conduct a satellite-based 

monitoring hearing “[w]hen an offender is convicted of a reportable conviction as 

defined by G.S. 14-208.6(4), and there has been no determination by a court on whether 

the offender shall be required to enroll in satellite-based monitoring[.]” Id. § 14-

208.40B(a) (emphasis added). The plain language of this statute indicates that it does 

not apply where there has already been a “determination by a court on whether the 

offender shall be required to enroll in satellite-based monitoring,” id., as happened in 

this case in 2009 when Defendant was initially enrolled in satellite-based monitoring 

following his “bring-back” hearing pursuant to § 14-208.40B(a). 

¶ 25 Moreover, our precedent makes clear that the State cannot move for 

reconsideration of satellite-based monitoring under § 14-208.40B. In Clayton, the 

defendant pleaded guilty in April 2008 to two counts of taking indecent liberties with 

a child and received a sentence that was suspended upon a term of probation. 206 
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N.C. App. at 301, 697 S.E.2d at 430. On 19 May 2008, pursuant to § 14-208.40B, the 

defendant was brought back before the trial court for a satellite-based monitoring 

hearing, at which the trial court determined that the defendant was not subject to 

satellite-based monitoring. Id. The defendant was subsequently charged with 

violating his probation in July 2008. Id. At the probation violation hearing on 5 March 

2009, the defendant’s satellite-based monitoring status was reevaluated, and at that 

time, the trial court ordered him to enroll in satellite-based monitoring for a period 

of ten years. Id. at 301–02, 697 S.E.2d at 430.

¶ 26 On appeal, this Court observed that there was “no indication that between 19 

May 2008 and 5 March 2009 [the] defendant was convicted of another ‘reportable 

conviction’ which could trigger another [satellite-based monitoring] hearing based 

upon the new conviction.” Id. at 305, 697 S.E.2d at 432. We thus vacated the 2009 

satellite-based monitoring order, in that “[t]he trial court did not have any basis to 

conduct another [satellite-based monitoring] hearing, where it had already held [a 

satellite-based monitoring] hearing based upon the same reportable convictions in 

2008.” Id.

¶ 27 As in Clayton, the record in the instant case reflects no new “reportable 
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conviction”2 between the 29 April 2009 order enrolling Defendant in mandatory 

lifetime satellite-based monitoring and the 2 March 2020 “review” hearing upon 

which the trial court could base jurisdiction under § 14-208.40B(a). See N.C. Gen. 

Stat. § 14-208.6(4) (defining a “[r]eportable conviction” for the purposes of the sex 

offender and public protection registration programs). Thus, the trial court “did not 

have any basis to conduct another [satellite-based monitoring] hearing, where it had 

already held [a satellite-based monitoring] hearing based upon the same reportable 

convictions” in 2009. Id.

¶ 28 Additionally, the State did not validly invoke the court’s jurisdiction to conduct 

the 2 March 2020 hearing. The satellite-based monitoring program is “a civil 

regulatory scheme,” of which satellite-based monitoring hearings and proceedings are 

part. State v. Brooks, 204 N.C. App. 193, 194, 693 S.E.2d 204, 206 (2010) (citation and 

internal quotation marks omitted). Under the North Carolina Rules of Civil 

Procedure, “jurisdiction is dependent upon the existence of a valid motion, complaint, 

 

2 At the 2 March 2020 hearing, the State indicated that Defendant had been “charged 

with first degree rape and first degree forcible sex offenses and possession of a firearm by a 

felon” and “prosecuted contemporaneously for that in Federal court.” According to the State, 

Defendant “was convicted of possessing a firearm by a felon in Federal court and the state 

charges were dismissed, so he was not convicted of the rape or any sex offense at that time.” 

There is no documentation of this proceeding in the record on appeal. But in any event there 

is also no indication that Defendant was convicted of any new offense that would trigger 

another satellite-based monitoring hearing under § 14-208.40B(a). As the plain text of § 14-

208.40B(a) refers only to a “reportable conviction[,]” rather than to an arrest or an 

indictment, we may reach no other conclusion. N.C. Gen. Stat. § 14-208.40B(a).
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petition, or other valid pleading[.]” In re McKinney, 158 N.C. App. 441, 443, 581 

S.E.2d 793, 795 (2003). 

A court cannot undertake to adjudicate a controversy on its 

own motion; rather, it can adjudicate a controversy only 

when a party presents the controversy to it, and then, only 

if it is presented in the form of a proper pleading. Thus, 

before a court may act there must be some appropriate 

application invoking the judicial power of the court with 

respect to the matter in question.

Id. at 444, 581 S.E.2d at 795 (citation omitted); accord State v. Turner, 262 N.C. App. 

155, 819 S.E.2d 415, 2018 WL 4997420, at *2 (2018) (unpublished).

¶ 29 In Turner, the State argued before the trial court that the defendant’s 

conviction for statutory rape constituted an aggravated offense, mandating lifetime 

satellite-based monitoring of the defendant. 2018 WL 4997420, at *1. However, a 

subsequent risk assessment placed the defendant in the “Moderate-Low” risk 

category, and the trial court entered an order stating that the defendant was not 

required to enroll in satellite-based monitoring. Id. Months later, another satellitebased monitoring hearing was held, although the record on appeal contained no 

information indicating how that second hearing was initiated. Id. At the second 

hearing, the State argued that the trial court had previously misinterpreted case law 

regarding statutory rape, and the trial court set aside the earlier order and entered 

a new order imposing lifetime satellite-based monitoring upon the defendant. Id.

¶ 30 On appeal, this Court vacated the second satellite-based monitoring order for 
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lack of subject-matter jurisdiction. Id. at *3. Although we agreed that the trial court’s 

initial analysis of statutory rape was erroneous, pursuant to Clayton, “once the trial 

court entered the erroneous order, it did not have the authority to sua sponte modify 

the prior order.” Id. at *2. The State argued in Turner—as it argues in present case—

that it could have properly invoked the jurisdiction of the trial court by filing

pleadings such as a Rule 60 motion, but we rejected the State’s argument because 

“[t]he record on appeal d[id] not contain any motion filed by the State[.]” Id. Although 

Turner is an unpublished opinion and therefore not binding legal authority, see

N.C.R. App. P. 30(e)(3), we nevertheless find its reasoning persuasive and applicable 

to the issue before us, and we hereby adopt and employ that reasoning here.

¶ 31 In the instant case, the State has stipulated in the record on appeal that it “did 

not file a written motion, application, or other pleading.” At oral argument, 

Defendant’s counsel conceded that a hypothetical motion, such as a Rule 60 motion 

or a motion in the cause, may properly invoke the jurisdiction of the trial court “in 

some case” under similar post-Grady III circumstances. However, defense counsel 

further asserted that in the absence of any such motion, the State does not actually 

invoke the trial court’s jurisdiction. We agree. 

¶ 32 “We need not speculate about whether any hypothetical motions could have 

granted the trial court subject-matter jurisdiction to enter the [2 March 2020] order. 

In the absence of any motion, the trial court lacked subject-matter jurisdiction to 
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conduct the [2 March 2020] hearing and the [2 March 2020] order is void.” Turner, 

2018 WL 4997420, at *3. Accordingly, we “vacate the trial court’s [satellite-based 

monitoring] order without prejudice to the State’s ability to file [an] application” for 

satellite-based monitoring, consistent with this opinion. State v. Bursell, 372 N.C. 

196, 201, 827 S.E.2d 302, 306 (2019).

Conclusion

¶ 33 For the foregoing reasons, the trial court did not have jurisdiction to conduct 

the 2 March 2020 hearing. Accordingly, we vacate the trial court’s order without 

prejudice to the State’s ability to file an application for satellite-based monitoring. 

VACATED.

Chief Judge STROUD concurs.

Judge TYSON concurs in the result by separate opinion.
No. COA20-550 – State v. Billings

TYSON, Judge, concurring in the result only.

¶ 34 Defendant argues and this Court agrees the trial court lacked subject matter 

jurisdiction to conduct a rehearing on Defendant’s satellite-based monitoring. The 

parties stipulated the State served Defendant with a letter providing purported 

notice of the hearing, but “did not file a written motion, application, or other pleading” 

with the court.

¶ 35 As noted in the majority’s opinion, Defendant’s counsel conceded at oral 

argument a “motion, such as a Rule 60 motion or a motion in the cause, may properly 

invoke the jurisdiction of the trial court ‘in some case’ under similar post-Grady III

circumstances.” See N.C. Gen. Stat. § 1A-1, Rule 60 (2019); see generally J&M 

Aircraft Mobile T-Hangar, Inc. v. Johnston Cty. Airport Auth., 166 N.C. App. 534, 

539, 603 S.E.2d 348, 351 (2004) (a motion in the cause is the proper action to set aside 

a judgment pursuant to N.C. Gen. Stat. § 1A–1, Rule 60). In the absence of any such 

motion, the State did not invoke the trial court’s subject matter jurisdiction.

¶ 36 We unanimously agree the trial court lacked subject matter jurisdiction to 

conduct the 2 March 2020 hearing as the ratio decidendi of this appeal. The order 

therefrom must be vacated without prejudice to the State’s ability to invoke the trial 

court’s jurisdiction and file an application for satellite-based monitoring. State v. 

Bursell, 372 N.C. 196, 201, 827 S.E.2d 302, 306 (2019) (vacating “the trial court’s 

[satellite-based monitoring] order without prejudice to the State’s ability to file [an] 

application” for satellite-based monitoring).
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TYSON, J., concurring

¶ 37 Further analysis or discussion beyond the dispositive determination to vacate 

without prejudice is obiter dicta. See Catawba Memorial Hospital v. N.C. Dept. 

Human Resources, 112 N.C. App. 557, 561, 436 S.E.2d 390, 392 (1993) (finding the 

addressed issue “to be dispositive and, in view of our decisions with respect thereto, 

conclud[ing] that it is unnecessary to address the remainder”). I concur in the result 

to vacate the order without prejudice.