               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-55

                                Filed: 3 October 2017

Richmond County, Nos. 15 CRS 1140, 51497, 51848-50

STATE OF NORTH CAROLINA

              v.

ROBERT LEWIS BISHOP


        Appeal by defendant from orders entered 29 June 2016 by Judge Robert F.

Floyd in Richmond County Superior Court. Heard in the Court of Appeals 9 August

2017.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General Jennifer
        T. Harrod, for the State.

        Mark Montgomery for defendant.


        DIETZ, Judge.


        Defendant Robert Lewis Bishop appeals from the trial court’s orders requiring

him to enroll in satellite-based monitoring. Bishop did not timely appeal these orders.

As explained below, because the arguments Bishop seeks to raise in this appeal are

either procedurally barred or meritless, in our discretion we decline to issue a writ of

certiorari and dismiss this untimely appeal for lack of appellate jurisdiction.
                                  STATE V. BISHOP

                                  Opinion of the Court



                          Facts and Procedural History

      A jury convicted Defendant Robert Lewis Bishop of three counts of taking

indecent liberties with a child. The offenses occurred in 2015 and the victim was

Bishop’s five-year-old daughter. The trial court sentenced Bishop to three consecutive

terms of 16 to 29 months in prison and ordered him to enroll in satellite-based

monitoring for thirty years. Bishop did not challenge the trial court’s imposition of

satellite-based monitoring on constitutional grounds at the hearing.

      Immediately after the trial court imposed its sentence and satellite-based

monitoring order, the court stated, “We have another matter to take care of, I

believe?” Bishop then entered an Alford plea to two additional counts of indecent

liberties with a child. These two additional offenses occurred more than a decade

before Bishop’s criminal acts against his daughter. The basis of these new offenses

was information, apparently obtained while investigating Bishop’s crimes against his

daughter, that Bishop also had sexually molested his younger brothers. One of

Bishop’s brothers told the trial court that Bishop “spent his entire life molesting

children and getting away with it.”

      The trial court sentenced Bishop to suspended sentences of 19 to 23 months in

prison for these offenses, found that Bishop qualified as a recidivist, and therefore

ordered Bishop to enroll in satellite-based monitoring for life. As before, Bishop did

not challenge the imposition of this new satellite-based monitoring order on



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                                    Opinion of the Court



constitutional grounds. Bishop also did not timely appeal either of the trial court’s

orders imposing satellite-based monitoring. Bishop later filed a petition for writ of

certiorari, asking this Court to review the trial court’s satellite-based monitoring

orders.

                                        Analysis

   I.      Imposition of Satellite-Based Monitoring

        Bishop argues that the trial court erred by ordering him to enroll in satellite-

based monitoring without conducting a Grady hearing to determine whether that

monitoring was reasonable under the Fourth Amendment. Bishop concedes that his

argument suffers from two separate error preservation issues. First, Bishop did not

make this constitutional argument to the trial court, as the law requires. Second,

Bishop did not timely appeal the trial court’s satellite-based monitoring orders.

Bishop therefore asks this Court to take two extraordinary steps to reach the merits,

first by issuing a writ of certiorari to hear this appeal, and then by invoking Rule 2 of

the North Carolina Rules of Appellate Procedure to address his unpreserved

constitutional argument. In our discretion, we decline to do so.

        This Court has discretion to allow a petition for a writ of certiorari “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. P. 21(a). A writ of

certiorari is not intended as a substitute for a notice of appeal. If this Court routinely



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                                  Opinion of the Court



allowed a writ of certiorari in every case in which the appellant failed to properly

appeal, it would render meaningless the rules governing the time and manner of

noticing appeals. Instead, as our Supreme Court has explained, “[a] petition for the

writ must show merit or that error was probably committed below.” State v. Grundler,

251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959).

      Here, Bishop has not shown that his argument (on direct appeal, at least) is

meritorious or that the trial court probably committed error. Indeed, Bishop concedes

that the argument he seeks to raise is procedurally barred because he failed to raise

it in the trial court. We recognize that this Court previously has invoked Rule 2 to

permit a defendant to raise an unpreserved argument concerning the reasonableness

of satellite-based monitoring. State v. Modlin, __ N.C. App. __, 796 S.E.2d 405, 2017

WL 676957, at *2–3 (2017) (unpublished). But the Court did so in Modlin because, at

the time of the hearing in that case, “[n]either party had the benefit of this Court’s

analysis in Blue and Morris.” Id. at *2. In Blue and Morris, this Court outlined the

procedure defendants must follow to preserve a Fourth Amendment challenge to

satellite-based monitoring in the trial court. State v. Blue, __ N.C. App. __, __, 783

S.E.2d 524, 525–26 (2016); State v. Morris, __ N.C. App. __, __, 783 S.E.2d 528, 528–

29 (2016).

      This case is different from Modlin because Bishop’s satellite-based monitoring

hearing occurred several months after this Court issued the opinions in Blue and



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Morris. Thus, the law governing preservation of this issue was settled at the time

Bishop appeared before the trial court. As a result, the underlying reason for invoking

Rule 2 in Modlin is inapplicable here and we must ask whether Bishop has shown

any other basis for invoking Rule 2.

      He has not. Bishop’s argument for invoking Rule 2 relies entirely on citation to

previous cases such as Modlin, where the Court invoked Rule 2 because of

circumstances unique to those cases. In the absence of any argument specific to the

facts of this case, Bishop is no different from countless other defendants whose

constitutional arguments were barred on direct appeal because they were not

preserved for appellate review. See, e.g., State v. Garcia, 358 N.C. 382, 410–11, 597

S.E.2d 724, 745 (2004); State v. Roache, 358 N.C. 243, 274, 595 S.E.2d 381, 402 (2004);

State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600 (2003).

      As our Supreme Court has instructed, we must be cautious in our use of Rule

2 not only because it is an extraordinary remedy intended solely to prevent manifest

injustice, but also because “inconsistent application” of Rule 2 itself leads to injustice

when some similarly situated litigants are permitted to benefit from it but others are

not. State v. Hart, 361 N.C. 309, 317, 644 S.E.2d 201, 206 (2007). Because Bishop is

no different from other defendants who failed to preserve their constitutional

arguments in the trial court, and because he has not argued any specific facts that

demonstrate manifest injustice if we decline to invoke Rule 2, we do not believe this



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                                     Opinion of the Court



case is an appropriate use of that extraordinary step. As Bishop concedes, he cannot

prevail on this issue without the use of Rule 2 because his constitutional argument is

waived on appeal. In our discretion, we decline to issue a writ of certiorari to review

this unpreserved argument on direct appeal.

   II.      Determination of Recidivism

         Bishop next argues that the trial court erred in finding that he was a recidivist,

thereby qualifying him for lifetime satellite-based monitoring. As with his first

argument, Bishop failed to timely appeal on this ground and this Court can address

the merits only if it issues a writ of certiorari.

         In our discretion, we again decline to issue the writ because Bishop has not

shown that his argument has “merit or that error was probably committed below.”

Grundler, 251 N.C. at 189, 111 S.E.2d at 9. Under N.C. Gen. Stat. § 14-208.6, a

“recidivist” is defined as “a person who has a prior conviction for an offense” that is a

“reportable conviction” under section 14-208.6(4). N.C. Gen. Stat. § 14-208.6(2b)

(emphasis added). A “reportable conviction” under section 14-208.6(4) includes

Bishop’s conviction for taking indecent liberties with his five-year-old daughter. Id.

§ 14-208.6(4)(a). The statute does not define “prior conviction.” Bishop argues that his

convictions for three counts of indecent liberties against his daughter cannot count

as a “prior conviction” because they occurred on the same day as his guilty plea to the

two additional counts of indecent liberties against his brothers.



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                                      Opinion of the Court



       Bishop relies on this Court’s decision in State v. Springle, where we found that

the defendant’s two convictions for 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.” __ N.C. App. __,

__, 781 S.E.2d 518, 523 n.3 (2016). Springle is readily distinguishable from this case

because Bishop was not simultaneously convicted of the two separate sets of offenses

that rendered him a recidivist. After being convicted and sentenced for offenses

committed against his five-year-old daughter in 2015, Bishop chose to plead guilty to

separate offenses he committed against his younger brothers more than a decade

earlier. At the time Bishop pleaded guilty to these separate offenses, he already had

been convicted and sentenced for the 2015 offenses. Thus, he had a prior conviction

for a reportable offense at the time the trial court sentenced him on the new

convictions. That his prior conviction occurred earlier the same day rather than the

day before, or many years before, is irrelevant; Bishop was convicted and sentenced

at different times for two separate sets of qualifying offenses. Accordingly, Bishop

satisfied the statutory definition for a recidivist and the trial court properly applied

the statute’s plain language in this case.

       Because we find that Bishop’s argument is meritless, in our discretion we

decline to issue a writ of certiorari and therefore dismiss Bishop’s untimely appeal

for lack of appellate jurisdiction.



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                                    STATE V. BISHOP

                                    Opinion of the Court



                                        Conclusion

       In our discretion, we deny Bishop’s petition for a writ of certiorari and dismiss

this appeal for lack of jurisdiction.

       DISMISSED.

       Judges ELMORE and ARROWOOD concur.




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