NO. COA13-1280

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County

Nos. 06 CRS 221584, 221587

ROBERT LEROY WILLIAMS

Appeal by defendant from order entered 19 August 2013 by 

Judge Robert C. Ervin in Mecklenburg County Superior Court. 

Heard in the Court of Appeals 22 April 2014.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Joseph Finarelli, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate 

Defender James R. Grant, for defendant-appellant.

BRYANT, Judge.

Because continuous monitoring as a result of defendant’s 

participation in a satellite-based monitoring program does not 

violate defendant’s substantive due process rights and because 

the monitoring is rationally related to a legitimate 

governmental purpose, we affirm the order of the trial court 

imposing upon defendant enrollment in a satellite-based 

monitoring program for his natural life.
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On 27 April 2007 in Mecklenburg County Superior Court, 

defendant Robert Leroy Williams entered an Alford plea to two 

counts of second-degree rape. The State dismissed one count of 

first-degree sex offense, one count of first-degree kidnapping, 

one count of second-degree kidnapping, and two counts of firstdegree rape. The trial court entered a consolidated judgment in 

accordance with defendant’s plea and sentenced defendant to an 

active term of 58 to 79 months.

On 27 April 2012, the State filed a motion to determine 

whether defendant was required to enroll in the sex offender 

satellite monitoring program. A satellite monitoring bring-back 

hearing was held before the Honorable Robert C. Ervin on 19 

August 2013 during the criminal session of Mecklenburg County 

Superior Court.

During the hearing, the State presented the following 

background for defendant’s second-degree rape conviction. 

Defendant and his victim were neighbors. The victim had 

previously rejected defendant’s advances and request for a date. 

Defendant invited the victim to his residence to watch a video. 

Once inside, defendant extended a further invitation to view 

hats in his bedroom. In his bedroom, defendant kissed the 

victim, and the victim attempted to pull away. Defendant then 
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produced a knife and later a gun. Defendant forced the victim 

to perform fellatio and engage in sexual intercourse. When 

allowed to leave, the victim immediately reported the forced 

sexual assault.

In an order entered 19 August 2013, the trial court made 

judicial findings that defendant’s conviction for second-degree 

rape was a reportable conviction as defined by G.S. 14-208.6(4) 

and that his was an aggravated offense. Defendant was ordered 

to enroll in satellite-based monitoring for the remainder of his 

natural life. Defendant appeals.

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We first note that although defendant filed a written 

notice of appeal from the order directing his enrollment in a 

satellite-based monitoring program, defendant filed with this 

Court a petition for writ of certiorari to allow review of the 

trial court order, asserting that his written notice of appeal 

was defective. Specifically, defendant states that his notice 

of appeal fails to indicate to which court his appeal was to be 

taken and that he served his notice on the State via email. For 

the reasons stated herein, we determine defendant’s notice of 

appeal is not fatally defective; therefore, we deny defendant’s 
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petition for writ of certiorari and proceed to the merits of his 

appeal.

Any party entitled by law to appeal 

from a judgment or order rendered by a judge 

in superior or district court in a civil 

action or in a special proceeding may take 

appeal by giving notice of appeal within the 

time, in the manner, and with the effect 

provided in the rules of appellate 

procedure.

N.C. Gen. Stat. § 1-279.1 (2013). As to the content of the 

notice of appeal, our Rules of Appellate Procedure state that 

the notice “shall specify the party or parties taking the 

appeal; shall designate the judgment or order from which appeal 

is taken and the court to which appeal is taken . . . .” N.C. 

R. App. P. 3(d) (2013).

“The ‘fairly inferred’ doctrine ensures that a violation of 

Rule 3(d) results in dismissal only where the appellee is 

prejudiced by the appellant's mistake.” Phelps Staffing, LLC v. 

S.C. Phelps, Inc., 217 N.C. App. 403, 410, 720 S.E.2d 785, 791 

(2011). In Phelps Staffing, the plaintiff failed to designate 

within the notice of appeal the court to which the appeal was to 

be taken.

Plaintiff's notice of appeal does not 

designate any court as the proper venue for 

its appeal. Plaintiff's error is a complete 

omission of the content requirement as set 

forth in Rule 3(d). However, this Court has 
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liberally construed this requirement and has 

specifically held that a plaintiff's failure 

to designate this Court in its notice of 

appeal is not fatal to the appeal where the 

plaintiff's intent to appeal can be fairly 

inferred and the defendants are not mislead 

by the plaintiff's mistake.

Id. at 410, 720 S.E.2d at 791.

Here, the State’s response to defendant’s petition for writ 

of certiorari does not indicate that it was misled by 

defendant’s failure to indicate the court to which the appeal 

was to be made. The State does not contest defendant’s right to 

appeal and even suggests that despite the cited defects, this 

Court may grant a writ of certiorari to review the matter.

As to the service of his notice of appeal upon the opposing 

party, defendant acknowledges that he served his notice of 

appeal on the State by email.

“The requirement of timely filing and service of notice of 

appeal is jurisdictional . . . .” Smith v. Smith, 43 N.C. App. 

338, 339, 258 S.E.2d 833, 835 (1979) (citation omitted). 

However, a dissenting opinion adopted by our Supreme Court held 

that “the service of the Notice of Appeal is a matter that may 

be waived by the conduct of the parties.” Hale v. Afro-Am. Arts 

Int'l, 110 N.C. App. 621, 625, 430 S.E.2d 457, 459 (Wynn, J., 

dissent), rev'd for the reasons stated in the dissenting 
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opinion, 335 N.C. 231, 436 S.E.2d 588 (1993). The dissenting 

opinion proposed that the service of the notice of appeal was 

akin to the service of a complaint conferring personal 

jurisdiction upon a trial court. “When the defendant has been 

duly served with summons personally within the State, or has 

accepted service or has voluntarily appeared in court, 

jurisdiction over the person exists and the court may proceed to 

render a personal judgment . . . .” Id. at 625, 430 S.E.2d at

460 (citation and quotations omitted). “[B]y analogy . . . 

where the appellee failed, by motion or otherwise, to raise [an]

issue as to service of notice in either the trial court or in 

this Court and has proceeded to file a brief arguing the merits 

of the case, . . . [the appellee] has waived service of notice 

[of appeal] . . . .” Id. at 626, 430 S.E.2d at 460.

Here, in its response to defendant’s petition, the State 

acknowledges that defendant’s notice of appeal was served via 

email but does not further contest the service. Furthermore, 

the State filed a brief addressing the merits of defendant’s 

arguments presented on appeal. Thus, the State has waived 

service of notice of appeal. See id.

Accordingly, as defendant’s intent to appeal can be fairly 

inferred and the State provides no indication it was misled by 
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the defendant's mistake, we do not dismiss defendant’s appeal on 

the basis of a defect in the notice of appeal. See Phelps 

Staffing, LLC, ___ N.C. App. at ___, 720 S.E.2d at 791. And, 

as the State has waived service of the notice of appeal, see 

Afro-Am. Arts Int'l, Inc., 110 N.C. App. at 625, 430 S.E.2d at 

460 (Wynn, J., dissent), we deny defendant’s petition for writ 

of certiorari and proceed to the merits of his appeal. See 

Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 

191, 197—98, 657 S.E.2d 361, 365 (2008) (“A jurisdictional 

default . . . precludes the appellate court from acting in any 

manner other than to dismiss the appeal. . . . [However,] [w]e 

stress that a party's failure to comply with nonjurisdictional 

rule requirements normally should not lead to dismissal of the 

appeal.” (citations omitted)).

____________________________________

On appeal, defendant argues that the imposition of lifetime 

satellite-based monitoring violates his substantive due process 

rights by continuous government monitoring or in the 

alternative, by failing to be rationally related to the purpose 

of protecting the public from recidivism.

Defendant first argues that, as applied to him, North 

Carolina General Statutes, section 14-208.40B(c), violates 
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substantive due process by impermissibly infringing upon his 

right to be free from government monitoring of his location when 

monitoring is not narrowly tailored to the purpose of protecting 

the public from recidivism, and lifetime monitoring was imposed 

without consideration of defendant’s low risk for reoffending. 

We disagree.

“An appellate court reviews conclusions of law pertaining 

to a constitutional matter de novo.” State v. Bowditch, 364 

N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (citation omitted).

Pursuant to the United States Constitution, “[n]o State 

shall make or enforce any law which shall . . . deprive any 

person of life, liberty, or property, without due process of law

. . . .” U.S. CONST., amend. XIV, ' 1. The North Carolina 

Constitution provides that “[n]o person shall be . . . in any 

manner deprived of his life, liberty, or property, but by the 

law of the land.” N.C. CONST. art. I, § 19. Our Supreme Court 

has held that “[t]he term ‘law of the land’ as used in Article 

I, Section 19, of the Constitution of North Carolina, is 

synonymous with ‘due process of law’ as used in the Fourteenth 

Amendment to the Federal Constitution.” Rhyne v. K-Mart Corp., 

358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (citation and 

quotations omitted).
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The Due Process Clause provides two types of protection –

substantive and procedural due process. See State v. Thompson, 

349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998).

“Substantive due process” protection 

prevents the government from engaging in 

conduct that shocks the conscience, or 

interferes with rights implicit in the 

concept of ordered liberty. “Procedural due 

process” protection ensures that when 

government action depriving a person of 

life, liberty, or property survives 

substantive due process review, that action 

is implemented in a fair manner.

Id. 

Our established method of substantive-dueprocess analysis has two primary features: 

First, we have regularly observed that the 

Due Process Clause specially protects those 

fundamental rights and liberties which are, 

objectively, deeply rooted in this Nation's 

history and tradition and implicit in the 

concept of ordered liberty, such that 

neither liberty nor justice would exist if 

they were sacrificed. Second, we have 

required in substantive-due-process cases a 

careful description of the asserted 

fundamental liberty interest.

Washington v. Glucksberg, 521 U.S. 702, 720—21, 138 L. Ed. 2d 

772, 787—88 (1997) (citations and quotations omitted). “By 

extending constitutional protection to an asserted right or 

liberty interest, we, to a great extent, place the matter 

outside the arena of public debate and legislative action. We 

must therefore exercise the utmost care whenever we are asked to 
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break new ground in this field.” Id. at 720, 138 L. Ed. 2d at 

787 (citation and quotations omitted).

Defendant argues that General Statutes, section 14-

208.40B(c), the statute authorizing the court to compel 

defendant’s enrollment in a lifetime satellite-based monitoring

(“SBM”) program, impermissibly infringes upon his fundamental 

right to be free from continuous surveillance.

In support of his contention, defendant cites Justice 

Alito’s concurrence in United States v. Jones, 565 U.S. ___, 181 

L. Ed. 2d 911 (2012). The Jones Court considered whether a law 

enforcement agency’s monitoring of a vehicle while on public 

streets by benefit of an attached GPS locator amounted to a 

search within the meaning of the Fourth Amendment. The majority 

concluded that the agency had conducted a search, and because 

the intrusion occurred in the absence of a valid warrant, it was 

a violation of Fourth Amendment prohibitions against 

unreasonable searches and seizures. In his concurrence, Justice 

Alito proposed that, as opposed to short-term monitoring, longterm GPS monitoring and cataloguing of a vehicle’s every 

movement impinged upon society’s expectation of privacy. Id. at 

___, 181 L. Ed. 2d at 934 (Alito, J., concurrence). We note 

that as to the application of the Fourth Amendment in the 
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context of SBM, our Court has declared United States v. Jones to 

be inapposite. See State v. Jones, ___ N.C. App. ___, ___, 750 

S.E.2d 883, 886 (2013) (citing State v. Martin, ___ N.C. App. 

___, 735 S.E.2d 238 (2012) (holding SBM is not a violation of 

the defendant’s Fourth Amendment right to be free from 

unreasonable searches and seizures)).

We also note that in United States v. Jones, the Court was 

analyzing an event that took place in the context of a law 

enforcement agency’s investigation of narcotics trafficking. 

The concerns articulated in Justice Alito’s concurrence are 

distinguishable from the circumstance for which defendant seeks 

our review: the continuous monitoring of a person who has been 

convicted and sentenced for an aggravated offense, as defined by 

section 14-208.6. See N.C. Gen. Stat. ' 14-208.6(1a) (2013) 

(“‘Aggravated offense’ means any criminal offense that includes 

either of the following: (i) engaging in a sexual act involving 

vaginal, anal, or oral penetration with a victim of any age 

through the use of force or the threat of serious violence; or 

(ii) engaging in a sexual act involving vaginal, anal, or oral 

penetration with a victim who is less than 12 years old.”).

Defendant’s participation in an SBM program following his

conviction for an aggravated offense – forcible rape – does not
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infringe upon any fundamental right. See Jones, ___ N.C. App. 

___, 750 S.E.2d 883; Martin, ___ N.C. App. ___, 735 S.E.2d 238. 

Defendant’s asserted “fundamental right to be free from 

continuous government surveillance” is not one we have ever 

recognized in the context of SBM. On the contrary, “an 

imposition of restrictive measures on sex offenders adjudged to 

be dangerous is a legitimate nonpunitive governmental objective 

and has been historically so regarded.” State v. Bare, 197 N.C. 

App. 461, 467, 677 S.E.2d 518, 524 (2009) (citation and 

quotations omitted). Therefore, defendant cannot establish that 

his participation in an SBM program infringes upon a fundamental 

right. We overrule this portion of defendant’s substantive due 

process argument.

However, defendant argues in the alternative that General 

Statutes section 14-208.40B(c) as applied to him violates 

substantive due process because it is not rationally related to 

its purpose of protecting the public from recidivism. Defendant

contends that because section 14-208.40B(c) authorizes mandatory 

lifetime participation without consideration of defendant’s risk 

of reoffending, the statute is constitutionally unsound. We 

disagree.
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“[U]nless legislation involves a suspect classification or 

impinges upon fundamental personal rights, it is presumed 

constitutional and need only be rationally related to a 

legitimate state interest.” Huntington Prop., LLC v. Currituck 

Cnty., 153 N.C. App. 218, 229, 569 S.E.2d 695, 703 (2002)

(citation and quotations omitted). “[T]he rational basis 

standard . . . ‘merely’ requires that a regulation bear some 

rational relationship to a conceivable legitimate interest of 

government.” Bald Head Island, Ltd. v. Vill. of Bald Head 

Island, 175 N.C. App. 543, 550, 624 S.E.2d 406, 410—11 (2006)

(citation and quotations omitted).

Defendant cites South Carolina v. Dykes, 744 S.E.2d 505 

(S.C. 2013), for the proposition that South Carolina’s SMB 

statute was deemed unconstitutional to the extent that it 

imposed upon the defendant lifetime SBM without (1) a 

determination of her dangerousness prior to being enrolled or 

(2) an opportunity for judicial review at a later date to 

address the necessity of her remaining enrolled in the program. 

The South Carolina Court held that “[i]n light of the [South 

Carolina] General Assembly's stated purpose of protecting the 

public from sex offenders and aiding law enforcement, we find 

that the initial mandatory imposition of satellite monitoring 
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for certain child-sex crimes satisfies the rational relationship 

test.” Id. at 510. However, “[t]he complete absence of any 

opportunity for judicial review to assess a risk of re-offending

. . . is arbitrary and cannot be deemed rationally related to 

the legislature's stated purpose of protecting the public from 

those with a high risk of re-offending.” Id. (citation 

omitted).

Because our North Carolina statutory scheme provides for 

both a determination of dangerousness prior to imposing 

enrollment in a satellite-based monitoring program and the 

possibility for review for later termination from satellitebased monitoring, any analysis of Dykes, 744 S.E.2d 505, is 

inapposite. We now look to relevant North Carolina General 

Statutes regarding satellite-based monitoring.

Pursuant to section 14-208.40B(c), when an offender is 

convicted of a reportable conviction as defined by G.S. 14-

208.6(4), the district attorney, representing the Division of 

Adult Correction, shall schedule a hearing in superior court.

[In this hearing,] the court shall determine 

if the offender falls into one of the 

categories described in G.S. 14-208.40(a). 

The court shall hold the hearing and make 

findings of fact pursuant to G.S. 14-

208.40A.

If the court finds that (i) the offender has 
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been classified as a sexually violent 

predator pursuant to G.S. 14-208.20, (ii) 

the offender is a recidivist, (iii) the 

conviction offense was an aggravated 

offense, or (iv) the conviction offense was 

a violation of G.S. 14-27.2A or G.S. 14-

27.4A, the court shall order the offender to 

enroll in satellite-based monitoring for 

life.

N.C. Gen. Stat. § 14-208.40B(c).

Defendant does not contest that his was a “reportable 

conviction” as defined by section 14-208.6(4). See id. § 14-

208.6(4)(a.) (“‘Reportable conviction’ means: ‘A final 

conviction for an offense against a minor, a sexually violent 

offense, or an attempt to commit any of those offenses unless 

the conviction is for aiding and abetting.’”). Defendant also 

does not challenge the trial court’s finding that his was an 

aggravated offense. See id. ' 14-208.6(1a) (“‘Aggravated 

offense’ means any criminal offense that includes either of the 

following: (i) engaging in a sexual act involving vaginal, anal, 

or oral penetration with a victim of any age through the use of 

force or the threat of serious violence . . . .”). Defendant’s 

argument is limited to a purported failure of the North Carolina 

SBM scheme, as applied here, to assess defendant’s risk of 

reoffending before imposing lifetime SBM and an inadequate 

process for petitioning to be removed from SBM.
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In State v. Bowditch, our Supreme Court stated that “[t]he 

legislature's intent in establishing SBM may be inferred from 

the declaration in the authorizing legislation that it ‘shall be 

known as “An Act To Protect North Carolina's Children/Sex 

Offender Law Changes.”’ Ch. 247, sec. 1(a), 2006 N.C. Sess. Laws 

at 1066.” 364 N.C. 335, 342, 700 S.E.2d 1, 6 (2010). The Court 

reasoned that it was the intent of our legislature “to protect 

our State's children from the recidivist tendencies of convicted 

sex offenders . . . .” Id.

Pursuant to section 14-208.40(a),

[t]he [SBM] program shall be designed to 

monitor . . . offenders as follows:

(1) Any offender who is convicted of a 

reportable conviction as defined by G.S. 14-

208.6(4) and who is required to register 

under Part 3 of Article 27A of Chapter 14 of 

the General Statutes because the defendant 

is classified as a sexually violent 

predator, is a recidivist, or was convicted 

of an aggravated offense as those terms are 

defined in G.S. 14-208.6.

N.C. Gen. Stat. § 14-208.40(a)(1) (2013).

It would appear that our General Assembly has determined 

that an offender convicted of a particular classification of 

crimes is to be subject to lifetime satellite-based monitoring. 

Implicit in this statutory scheme is a recognition of an 

offender’s risk of re-offending if he has committed a certain 
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type of offense. This defendant, by statute, is subject to SBM 

for life. Further, the statutory scheme provides that if the 

court finds the offense committed is not an aggravated offense 

(along with other exceptions) and the offender is not a 

recidivist, the court shall conduct a risk assessment to 

determine whether and for what period of time a defendant should 

be subject to SBM. See id. ' 14-208.40A(d),(e). Similar to the 

South Carolina policy to protect the public from sex offenders 

as stated by the Dykes Court, the North Carolina policy set 

forth in the SMB statutes is the same, and therefore, we believe 

the imposition of SBM to be rationally related to the purpose of 

protecting children and the more general public. See K-Mart 

Corp., 358 N.C. at 180—81, 594 S.E.2d at 15 (“[T]he rational 

basis test or rational basis review applies, and this Court must 

inquire whether distinctions which are drawn by a challenged 

statute ... bear some rational relationship to a conceivable 

legitimate governmental interest. Rational basis review is

satisfied so long as there is a plausible policy reason for the 

classification, the legislative facts on which the 

classification is apparently based rationally may have been 

considered to be true by the governmental decisionmaker, and the 

relationship of the classification to its goal is not so 
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attenuated as to render the distinction arbitrary or 

irrational.” (citation and quotations omitted)).

In further response to defendant’s argument that there is 

an inadequate process for petitioning to be removed from SBM, we 

note that our General Assembly has provided an avenue for 

petitioners seeking removal from SBM. Per General Statutes, 

section 14-208.43, “Request for termination of satellite-based 

monitoring requirement,”

[a]n offender described by G.S. 14-

208.40(a)(1) or G.S. 14-208.40(a)(3) who is 

required to submit to satellite-based 

monitoring for the offender's life may file 

a request for termination of monitoring 

requirement with the Post-Release 

Supervision and Parole Commission. The 

request to terminate the satellite-based 

monitoring requirement and to terminate the 

accompanying requirement of unsupervised 

probation may not be submitted until at 

least one year after the offender: (i) has 

served his or her sentence for the offense 

for which the satellite-based monitoring 

requirement was imposed, and (ii) has also 

completed any period of probation, parole, 

or post-release supervision imposed as part 

of the sentence.

N.C. Gen. Stat. § 14-208.43(a) (2013). Again, we hold the 

imposition of SBM as applied to defendant is rationally related 

to the purpose of protecting children and the general public and 

does not impermissibly infringe upon defendant’s due process 

rights. Accordingly, defendant’s arguments are overruled.
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Affirmed.

Judges HUNTER, Robert C., and STEELMAN concur.