                                    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.
                                             -2-
       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 first-

degree 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
                                   -3-
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.

                    ____________________________________

    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
                                     -4-
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
                                          -5-
            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
                                         -6-
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
                                      -7-
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
                                         -8-
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).
                                         -9-
       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-due-
            process 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
                                           -10-
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, long-

term    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
                                     -11-
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
                                          -12-
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.
                                             -13-
      “[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
                                            -14-
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      satellite-

based 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
                                        -15-
           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.
                                      -16-
    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
                                          -17-
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
                                       -18-
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.
                         -19-
Affirmed.

Judges HUNTER, Robert C., and STEELMAN concur.
