              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-597

                               Filed: 5 January 2016

Carteret County, No. 13 CRS 054303

STATE OF NORTH CAROLINA,

             v.

ROBERT HUGHES SPRINGLE, Defendant.


      Appeal by defendant from order entered 10 November 2014 by Judge Jack

Jenkins in Carteret County Superior Court.       Heard in the Court of Appeals 3

November 2015.


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

      Amanda S. Zimmer for defendant-appellant.


      BRYANT, Judge.


      Where the State fails to demonstrate the substantial similarity of defendant’s

out-of-state convictions to North Carolina crimes and where the trial court fails to

determine, either orally or in writing, that the out-of-state convictions are

substantially similar to North Carolina offenses for purposes of enrollment in

satellite-based monitoring, we remand for resentencing.

      On 7 October 2013, true bills of indictment were issued against Robert Hughes

Springle, defendant, for two counts of felonious indecent exposure by an offender over

the age of eighteen with a victim under the age of sixteen in violation of N.C. Gen.
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                                        Opinion of the Court



Stat. § 14-190.9(a1) (2013), amended by 2015 N.C. Sess. Laws 2015-250.                         On 4

September 2014, defendant pled guilty to both offenses in exchange for an active term

of imprisonment of eight to ten months, with credit for time served in Case No. 11

CRS 55435, and a suspended sentence with supervised probation in Case No. 13 CRS

54303.     The Honorable Benjamin Alford, Judge presiding, found a factual basis

existed and accepted the plea. Judge Alford subsequently completed a Judgment and

Commitment form for each offense consistent with the plea agreement defendant

entered into with the State.

       During the 4 September 2014 hearing, Judge Alford noted on the record that

defendant was “a recidivist” and, therefore, subject to satellite-based monitoring for

the remainder of his natural life. The court, however, failed to note those findings on

the corresponding AOC-CR615 form, Judicial Findings and Order for Sex Offenders

– Suspended Sentence.1

       On 10 November 2014, the Honorable Jack W. Jenkins presided over a “bring-

back hearing” to resolve the question about defendant’s enrollment in the satellite-

based monitoring program. At the hearing, the State alleged, “[a]t 11 CRS 55435,

Your Honor, I think under the [s]tatute, he is a recidivist. The State would maintain



       1   Judge Alford checked the box on form AOC-CR-803C titled “Special Conditions For
Reportable Convictions – G.S. 15A-1343(b2),” which notes that defendant must “[r]egister as a sex
offender and enroll in satellite-based monitoring if required on the attached AOC-CR-615, Side Two.”
However, Judge Alford did not complete the corresponding form AOC-CR-615, rather Judge Jenkins
did. Judge Jenkins made the finding that defendant is a recidivist and ordered that defendant register
as a sex offender for his natural life and enroll in satellite-based monitoring for his natural life.

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that he is, and that requires a lifetime on monitoring.” The transcript does not reflect

that any evidence was handed up to the court at that time to support this allegation.

However, the sentencing worksheet reflects prior convictions for felony sex offense

against a child and three separate prior convictions of indecent exposure. The court

inquired, “But it doesn’t seem to be a dispute that he is a recidivist and, therefore, it’s

lifetime?” Defense counsel indicated that there was no dispute. A written order was

entered requiring defendant to register as a sex offender for life and to enroll in

satellite-based monitoring for the remainder of his natural life.

         On 9 February 2015, a hearing was held for the purpose of terminating

defendant’s probation, Judge Alford presiding. At the hearing, defendant’s trial

counsel informed the court of the following: (1) defendant wished to appeal the 10

November 2014 satellite-based monitoring enrollment order; (2) trial counsel had

prepared a simple Notice of Appeal for defendant; and (3) while defendant signed the

document, his trial counsel filed it with the Clerk of Court. However, that Notice of

Appeal did not contain a certificate of service reflecting that it had been served on the

State.

         Defendant’s counsel further stated that he had informed defendant there were

no grounds upon which to appeal and that counsel personally considered the appeal

to be “groundless,” but asked Judge Alford to “look at it and see if you want to appoint

counsel” for the appeal. Judge Alford appointed the Appellate Defender and ordered



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a transcript of the prior hearings. Defendant noted an appeal of the 10 November

2014 order on lifetime-SBM.

                             Petition for Writ of Certiorari

      Rule 21(a)(1) of our Appellate Procedures provides, “[t]he writ of certiorari may

be issued in appropriate circumstances by either appellate court 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. 21(a)(1) (2015); see State

v. Hammonds, 218 N.C. App. P. 158, 162, 720 S.E.2d 820, 823 (2012) (allowing the

defendant’s petition for writ of certiorari when “it [was] readily apparent that [the]

defendant ha[d] lost his appeal through no fault of his own”).

      On 1 June 2015, defendant filed a petition for writ of certiorari and alleged a

violation of N.C. R. App. P. 4 related to the defective service of his notice of appeal.

On 11 June 2015, the State filed a response to defendant’s petition for writ of

certiorari, also noting that notices of appeal of SBM orders are governed by Rule 3 of

the North Carolina Rules of Appellate Procedure, as they are civil in nature. The

State requested that this Court deny defendant’s petition.           On 12 June 2015,

defendant filed a reply to the State’s response. For the reasons that follow, we grant

defendant’s petition for writ of certiorari.

      Our Court has interpreted SBM hearings and proceedings as civil, as opposed

to criminal, actions, for purposes of appeal. Therefore, “a defendant must give notice



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                                   Opinion of the Court



of appeal pursuant to N.C. R. App. P. 3(a),” from an SBM proceeding. State v. Brooks,

204 N.C. App. 193, 194–95, 693 S.E.2d 204, 206 (2010) (citing N.C. R. App. P. 3(a)).

“A party must comply with the requirements of Rule 3 to confer jurisdiction on an

appellate court.” In re Moore, ___ N.C. App. ___, ___, 758 S.E.2d 33, 36 (2014) (citing

Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000)). “Thus, failure to

comply with Rule 3 is a jurisdictional default that prevents this Court ‘from acting in

any manner other than to dismiss the appeal.’ ” Id. (quoting Dogwood Dev. & Mgmt.

Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008)).

      However, a defect in a notice of appeal “should not result in loss of the appeal

as long as the intent to appeal . . . can be fairly inferred from the notice and the

appellee is not misled by the mistake.” Phelps Staffing, LLC v. S.C. Phelps, Inc., 217

N.C. App. 403, 410, 720 S.E.2d 785, 791 (2011) (quoting Smith v. Indep. Life Ins. Co.,

43 N.C. App. 269, 274, 258 S.E.2d 864, 867 (1979)) (internal quotation marks

omitted); see also In re M.B., ___ N.C. App. ___, ___, 771 S.E.2d 615, 623 (2015) (noting

that “this Court’s prior holdings make clear that a notice of appeal is not defective if

‘intent to appeal can be fairly inferred’ ” (quoting Phelps, 217 N.C. App. at 410, 720

S.E.2d at 791)); State v. Williams, ___ N.C. App. ___, ___, 761 S.E.2d 662, 664 (2014)

(declining to dismiss the defendant’s appeal on the basis of a defect in the notice of

appeal because defendant’s appeal could be fairly inferred and the State provided no

indication that it was misled by the defendant’s mistake).



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                                   Opinion of the Court



      Here, the State concedes that it has “suffered no prejudice” as a result of

defendant’s defective notice of appeal, which we interpret to mean that the State was

not misled by the defective notice. Therefore, as defendant’s notice of appeal was

defective “through no fault of his own,” see Hammonds, 218 N.C. App. at 162, 720

S.E.2d at 823, and the State was not misled as a result thereof, we grant certiorari to

permit review of the lifetime-SBM order entered against defendant.

         _____________________________________________________________

      On appeal, defendant argues (I) that the trial court’s finding that he was a

recidivist was not supported by competent evidence and, therefore, cannot support

the conclusion that defendant must submit to lifetime sex-offender registration and

satellite-based monitoring, and (II) that defendant did not receive effective assistance

of counsel.

                                            I

      Defendant first argues that the trial court’s conclusion that he was a recidivist

was not supported by competent evidence and, therefore, cannot support the

conclusion that he must submit to lifetime sex-offender registration and satellite-

based monitoring. Specifically, defendant contends that the conclusion that he was

a recidivist was not supported by findings made by the trial court as to which prior

conviction qualified defendant as a recidivist and, further, that a stipulation to a prior

record level worksheet reflecting out-of-state convictions cannot constitute a legal



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conclusion that a particular out-of-state conviction is “substantially similar” to a

particular North Carolina felony or misdemeanor.2 We agree.

        On appeal from an order imposing satellite-based monitoring, this Court

reviews “the trial court’s findings of fact to determine whether they are supported by

competent record evidence, and we review the trial court’s conclusions of law for legal

accuracy and to ensure that those conclusions reflect a correct application of law to

the facts found.” State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009)

(quoting State v. Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004)) (internal

quotation marks omitted).

        For purposes of requiring satellite-based monitoring, the State has the burden

of presenting any evidence to the court that the offender is a recidivist. N.C. Gen.


        2 A defendant, however, is not categorically precluded from stipulating to his prior record level
or prior convictions in order to support a finding that a defendant is a recidivist for purposes of the
SBM statute. State v. Arrington, 226 N.C. App. 311, 316–17, 741 S.E.2d 453, 457 (2013). In Arrington,
this Court affirmed an SBM order, for which the defendant stipulated to his prior North Carolina
convictions. Id. at 316–17, 741 S.E.2d at 456–57. This Court found that

                [t]he prior record worksheet and the stipulation by counsel to [the]
                defendant’s prior convictions support a finding that [the] defendant
                had been convicted of indecent liberties with a child . . . even though it
                appears that the State did not introduce the judgment or record of
                conviction from that case, or a copy of [the] defendant’s criminal history.

Id. at 316, S.E.2d at 456–57 (emphasis added) (citation omitted).
        Even though “the State did not introduce the judgment or record of conviction,” see id., because
the prior convictions in Arrington were North Carolina convictions and not out-of-state convictions, as
they are in this case, there was no need for the State in Arrington to offer evidence that the prior
convictions were “substantially similar” to North Carolina offenses, as was required here. Cf. State v.
Wright, 210 N.C. App. 52, 70–73, 708 S.E.2d 112, 125–27 (2011) (vacating and remanding for new
sentencing hearing where “the trial court erred in its classification and assignment of points to two
out-of-state convictions” because the State failed to produce any evidence that the convictions were
“substantially similar” to any North Carolina offenses).

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                                    Opinion of the Court



Stat. § 14-208.40A(a) (2015). After receiving the evidence, the court “shall determine”

if the offender is a recidivist “and, if so, shall make a finding of fact of that

determination . . . .” N.C.G.S. § 14-208.40A(b). A recidivist is defined as “a person

who has a prior conviction for an offense that is described in G.S. 14-208.6(4).” N.C.

Gen. Stat. § 14-208.6(2b) (2015).      Under N.C. Gen. Stat. § 14-208.6(4), a prior,

reportable conviction includes

              [a] final conviction in another state of an offense, which if
              committed in this State, is substantially similar to an
              offense against a minor or a sexually violent offense as
              defined by this section, or a final conviction in another state
              of an offense that requires registration under the sex
              offender registration statutes of that state.

N.C.G.S. § 14-208.6(4)(b) (emphasis added); see N.C. Gen. Stat. § 15A-1340.14(e)

(2014) (stating that the State must prove substantial similarity by a preponderance

of the evidence). If the court finds that the offender is a recidivist, the court must

order that he be enrolled in satellite-based monitoring for life. N.C. Gen. Stat. § 14-

208.40A(c).

      “This Court has repeatedly held a defendant’s stipulation to the substantial

similarity of offenses from another jurisdiction is ineffective because the issue of

whether an offense from another jurisdiction is substantially similar to a North

Carolina offense is a question of law.” State v. Burgess, 216 N.C. App. 54, 59, 715

S.E.2d 867, 871 (2011) (citations omitted). “[S]tipulations as to questions of law are

generally held invalid and ineffective, and not binding upon the courts, either trial or


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                                   Opinion of the Court



appellate.” State v. Wright, 210 N.C. App. 52, 71, 708 S.E.2d 112, 125 (2011) (quoting

State v. Moore, 188 N.C. App. 416, 426, 656 S.E.2d 287, 293 (2008)). Accordingly,

when the State fails to demonstrate the substantial similarity of a defendant’s out-

of-state convictions to North Carolina crimes and when the trial court fails to

determine whether out-of-state convictions are substantially similar to North

Carolina offenses, this Court will remand the case for resentencing. Id. at 72–73, 708

S.E.2d at 126–27.

      In Wright, the defendant was convicted of “robbery 3rd degree” under a

Connecticut statute, and had a conviction for attempted murder under a New York

statute. Id. at 71–72, 708 S.E.2d at 126. However, remand was necessary where the

State did not provide copies of either applicable state statute, and failed to provide a

comparison of their respective statutory provisions to similar North Carolina

statutes. Id. at 71–73, 708 S.E.2d at 125–26; cf. State v. Rich, 130 N.C. App. 113,

117, 502 S.E.2d 49, 52 (1998) (holding that copies of New Jersey and New York

statutes along with a comparison of their provisions to the criminal laws of North

Carolina were sufficient to prove by a preponderance of the evidence that the

defendant’s convictions in those states were substantially similar to North Carolina

crimes).

      Judge Alford’s oral order determining that defendant was a recidivist and

ordering lifetime SBM was never reduced to writing and made part of the proper



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                                   Opinion of the Court



record. See Griffith v. N.C. Dep’t of Corr., 210 N.C. App. 544, 549, 709 S.E.2d 412,

416–17 (2011) (finding that “[w]hen a [trial court’s] oral order is not reduced to

writing, it is non-existent and thus cannot support an appeal” (alteration in original)

(citation and internal quotation marks omitted)). Judge Jenkins also found that

defendant was a recidivist, but made no specific findings as to which of defendant’s

prior convictions qualified him to be a recidivist. This failure to make appropriate

findings compromises our review of the conclusion reached by the trial court.

       The North Carolina Supreme Court has stated that the requirement of making

findings of fact is not a “mere formality” or an “empty ritual.” Coble v. Coble, 300

N.C. 708, 712, 268 S.E.2d 185, 189 (1980). Rather, the trial court must make findings

of fact that are both “detailed” and “specific.” Id. “Evidence must support findings;

findings must support conclusions; conclusions must support the judgment. Each

step of the progression must be taken by the trial judge, in logical sequence; each link

in the chain of reasoning must appear in the order itself.” Id. at 714, 268 S.E.2d at

190.

       Here, there was evidence in the record from which the trial court could have

possibly determined that defendant was a recidivist for purposes of enrollment in the

satellite-based monitoring program.      The prior out-of-state convictions to which

defendant stipulated were sex offenses that might easily have shown defendant to be

a recidivist: defendant’s prior record level worksheet reflects three prior convictions



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                                         Opinion of the Court



for indecent exposure in South Carolina and two prior sex offense convictions in

Florida.

       Support for a conclusion of SBM required a determination by the trial court

that defendant’s prior, out-of-state convictions were reportable convictions based on

G.S. § 14-208.6(b). However, no findings were made, either orally or in writing, as to

which of defendant’s prior convictions constituted a reportable conviction and

qualified him as a recidivist.3 See id. (“Where there is a gap, it cannot be determined

on appeal whether the trial court correctly exercised its function to find the facts and

apply the law thereto.”). As stated above, defendant’s stipulation to his prior record

level worksheet is “ineffective because the issue of whether an offense from another

jurisdiction is substantially similar to a North Carolina offense is a question of law.”

Burgess, 216 N.C. App. at 59, 715 S.E.2d at 871 (citations omitted).

       Further, the State offered no statutes from either South Carolina or Florida to

prove by a preponderance of the evidence that any of the prior out-of-state convictions

of defendant’s were substantially similar to a North Carolina sexual offense. See

N.C.G.S. § 15A-1340.14(e); Wright, 210 N.C. App. at 71–72, 708 S.E.2d at 126. There


       3  The only prior convictions which could have constituted prior reportable convictions in order
to qualify defendant as a recidivist were his out-of-state convictions. Defendant’s North Carolina
convictions for felonious indecent exposure cannot function as “prior convictions” for purposes of
categorizing defendant as a recidivist because defendant was simultaneously convicted of both counts
of indecent exposure on 4 September 2010 in case numbers 13CRS54303 and 11CRS55435. While
“prior conviction” is not defined in Article 27A of Chapter 14 of the General Statutes, which addresses
the sex offender programs, under N.C. Gen. Stat. § 15A-1340.11(7), “[a] person has a prior conviction
when, on the date a criminal judgment is entered, the person being sentenced has been previously
convicted of a crime . . . .” N.C.G.S. § 15A-1340.11(7) (2013) (emphasis added).

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                                   Opinion of the Court



is nothing in the transcript of the hearing or in the written order to indicate the trial

court found any of defendant’s out-of-state convictions substantially similar to a

North Carolina offense; thus, there was no competent evidence to support the trial

court’s finding that defendant was a recidivist.

      Accordingly, because “the State failed to demonstrate the substantial

similarity of [d]efendant’s out-of-state convictions to North Carolina crimes and since

the trial court failed to determine [that] the out-of-state convictions were

substantially similar to North Carolina offenses, we must remand for resentencing.”

Wright, 210 N.C. App. at 72, 708 S.E.2d at 126.

      As to defendant’s ineffective assistance of counsel claim, we agree with the

State’s assertion that our Court has rejected the argument that an ineffective

assistance of counsel claim can be asserted in SBM appeals. See State v. Wagoner,

199 N.C. App. 321, 332, 683 S.E.2d 391, 400 (2009) (“[A] claim for ineffective

assistance of counsel is available only in criminal matters, and we have already

concluded that SBM is not a criminal punishment.” (citations omitted)); see also State

v. Clark, 211 N.C. App. 60, 77, 714 S.E.2d 754, 765 (2011) (“[S]ince an SBM

proceeding is not criminal in nature, defendants required to enroll in SBM are not

entitled to challenge the effectiveness of the representation that they received from

their trial counsel based on the right to counsel provisions of the federal and state

constitutions.”); State v. Miller, 209 N.C. App. 466, 469, 706 S.E.2d 260, 262 (2011)



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                                 Opinion of the Court



(noting that “IAC claims are not available in civil appeals such as that from an SBM

eligibility hearing”). Accordingly, we dismiss this argument.

      REVERSED AND REMANDED IN PART AND DISMISSED IN PART.

      Judges CALABRIA and ZACHARY concur.




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