In re Coley, 111 N.C. App. 451 (1993)

Aug. 3, 1993 · North Carolina Court of Appeals · No. 9210SC745

111 N.C. App. 451

IN THE MATTER OF: KERVIEW WAYNE COLEY

No. 9210SC745

(Filed 3 August 1993)

Appeal by respondent from order entered 4 November 1991 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 7 June 1993.

Respondent was charged on a warrant dated 26 June 1986 with the first degree murder of David Carroll. The following day he was found incapable of proceeding to trial and therefore was committed to Dorothea Dix Hospital for examination and treatment pending a district court hearing. He was indicted by the Grand Jury for Wake County on 27 October 1986. Counsel for respondent gave notice of respondent’s intention to rely on the insanity defense.

On 11 May 1987, in Wake County Superior Court, Judge Henry W. Hight entered an order pursuant to N.C. Gen. Stat. § 15A-959(c) (1977) finding respondent not guilty by reason of insanity. Respondent was involuntarily committed to Dorothea Dix.

Thereafter respondent had several rehearings with recommitment being ordered by each district court judge based on the State’s proof of continuing mental illness and dangerousness. Judge Stephens presided over respondent’s seventh rehearing under the newly enacted provisions of Senate Bill 43, codified as N.C. Gen. Stat. §§ 122C-268.1(i) and -276.1(c) (Cum. Supp. 1991), and by order entered 4 November 1991 found respondent had not met his burden of proof and ordered his continued commitment for a period not to exceed one year. Respondent appealed the order to this Court.

Attorney General Lacy H. Thornburg, by Assistant Attorney General Valerie B. Spalding, for the State-appellee.

Karl E. Knudsen for respondent-appellant.

ARNOLD, Chief Judge.

Respondent contends that the provisions of G.S. § 122C as amended by Senate Bill 43 in April 1991 violate the Due Process and/or Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution, as well as Article I, Section 19 of the North Carolina Constitution. Respondent also contends that Senate Bill 43 violates the Ex Post Facto Clause of the Federal Constitution and North Carolina Constitution. The questions presented by respondent on appeal are identical to the issues raised in In re Hayes, 111 N.C. App. 384, 432 S.E.2d 862 (1993), which was filed simultaneously with the case at bar. For the reasons stated in Hayes, we hold that respondent’s assignments of error are without merit.

Affirmed.

Judges ORR and MARTIN concur.