State v. Anthony

• Docket Number: COA18-1118-3
• Decision Date: 21 June 2022
• Citation: 284 N.C.App. 135,876 S.E.2d 76
• Parties: STATE of North Carolina v. Kenneth Russell ANTHONY, Defendant.
• Court: North Carolina Court of Appeals

284 N.C.App. 135

876 S.E.2d 76

STATE of North Carolina

v.Kenneth Russell ANTHONY, Defendant.

No. COA18-1118-3

Court of Appeals of North Carolina.

Filed June 21, 2022

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya M. Calloway-Durham, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W. Andrews, for defendant.

STROUD, Chief Judge.

¶ 1 Defendant Kenneth Russell Anthony appeals a trial court order directing him to enroll in satellite-based monitoring ("SBM") for life following his plea to an aggravated sex offense. We are reviewing Defendant's case for a third time; the North Carolina Supreme Court remanded the case to us to reconsider our holding in light of State v. Hilton , 378 N.C. 692, 2021-NCSC-115, 862 S.E.2d 806, State v. Strudwick , 379 N.C. 94, 2021-NCSC-127, 864 S.E.2d 231, and the General Assembly's recent amendments to the SBM program from Session Law 2021-138, § 18. 2021 North Carolina Laws S.L. 2021-138 (Sept. 2, 2021, eff. 1 December 2021). Based upon these recent Supreme Court rulings and the newly revised statutes applicable to this SBM order, we find the trial court conducted an adequate hearing as to the reasonableness of SBM in Defendant's case and thus we reject his argument the State failed to prove lifetime SBM was reasonable as applied to him. Because we further conclude SBM is reasonable as applied to Defendant after our own de novo review, we affirm.

I. Background

¶ 2 As this is the third time this case is before us, we draw on our previous opinions to give the factual background of the case, adding details only as necessary for this current opinion. Our first opinion summarized the underlying facts of the case:

Defendant entered an Alford plea to attempted first-degree sex offense, habitual felon, assault on a female, communicating threats, interfering with emergency communication, first-degree kidnapping, incest, and second-degree forcible rape. Defendant's charges were consolidated into a single judgment and the trial court imposed a sentence of 216 to 320 months. On the same day judgment was entered, Defendant submitted a motion to dismiss the State's petition for SBM. The trial court held a hearing regarding SBM. The trial court denied Defendant's motion and entered an order directing Defendant to submit to lifetime SBM upon his release from prison. Defendant timely appealed the order requiring him to submit to lifetime SBM.

State v. Anthony , 267 N.C. App. 45, 46, 831 S.E.2d 905, 906–07 (2019) (" Anthony I ").

¶ 3 To expand upon that summary with the facts relevant to this appeal, the plea hearing included a summary of the evidence, to which Defendant had consented. Specifically, the trial court heard summarized evidence on a previous felony sex offense Defendant had committed, a previous sex offender registry violation, and the factual basis for the two charges to which Defendant pled in this case. The trial court later used the factual basis for these charges to conclude Defendant had committed an aggravated offense that made him eligible for SBM.

¶ 4 As Anthony I indicated, the trial court also held a hearing regarding SBM, and Defendant's motion to dismiss the State's petition for it, immediately after the plea hearing. 267 N.C. App. at 46, 831 S.E.2d at 906. Defendant argued in his motion to dismiss SBM was unconstitutional facially and as applied to him under the Fourth Amendment to the United States Constitution and Article I, § 20 of the North Carolina Constitution. In the current appeal, Defendant only argues SBM violates the Fourth Amendment as applied to him.

¶ 5 As part of that argument, Defendant highlighted the Fourth Amendment requires searches to be reasonable and the United States Supreme Court in Grady v. North Carolina , 575 U.S. 306, 135 S. Ct. 1368, 191 L.Ed.2d 459 (2015) (" Grady I ") (per curiam), held SBM is a search. Thus, the trial court conducted an analysis of reasonableness of SBM as to Defendant and found as follows:

In this matter, the defendant is already, as a convicted sex offender, required to register as a sex offender. Those registration requirements already impose a burden upon the defendant and the -- the additional burden of satellite-based monitoring would be a slight additional burden or infringement on the defendant's life and liberty. That, in fact, the satellite-based monitoring does not actually curtail the defendant's liberty. It does not require that he be locked up or placed in any sort of detention facility, but rather makes his whereabouts known for the purposes of serving greater governmental interests and legitimate State interests such as protecting society from, in this particular case, a twice convicted sex offender and deterring the conduct of what is, in this case, a twice convicted sex offender.

I will note also that studies show that sex offenders generally have a higher recidivism rate than does the general population of convicted felons, and for that reason -- for that reason and others, the State does have a legitimate State interest and a legitimate concern for the protection of society and the deterrence of future conduct. And for those reasons, I will -- that and the fact that I have now made findings of fact sufficient to justify the imposition of satellite-based monitoring will require that the defendant enroll in the satellite-based monitoring program for a period of his natural life, unless monitoring is earlier terminated pursuant to G.S. § 14-208.43.

The trial court then denied Defendant's motion to dismiss the State's SBM petition and imposed SBM. As Anthony I noted, Defendant then "timely appealed the order requiring him to submit to lifetime SBM." 267 N.C. App. at 46, 831 S.E.2d at 907.

¶ 6 While we explain the nature of our prior rulings in our analysis below, we briefly review the procedural history of Defendant's appeal. Following our opinion reversing the SBM order in Anthony I , 267 N.C. App. at 52, 831 S.E.2d at 910, the North Carolina Supreme Court remanded "for reconsideration in light of" State v. Grady , 372 N.C. 509, 831 S.E.2d 542 (2019) (" Grady III "). State v. Anthony , No. COA18-1118-2, slip op. at 2, 274 N.C. App. 356, 850 S.E.2d 359 (2020) (" Anthony II ") (unpublished), remanded for reconsideration in 379 N.C. 668, 865 S.E.2d 851 (2021). In Anthony II , we again reversed the trial court's order imposing lifetime SBM. Id. , slip op. at 6–7. Our Supreme Court remanded again for reconsideration in light of Hilton , Strudwick , and the legislative changes to the SBM program. 379 N.C. 668, 865 S.E.2d 851. Following the latest remand, we ordered supplemental briefing from each party. We now address Defendant's arguments from that briefing, which again challenges the trial court's order imposing lifetime SBM.

II. Analysis

¶ 7 Defendant argues the trial court erred by imposing SBM because "[t]he State failed to prove that SBM would be a reasonable search as applied to" him. Specifically, Defendant asserts that, just as our first opinion in this case determined, "the State ‘presented no evidence as to the reasonableness of SBM,’ " so "the order imposing SBM should be reversed." (Quoting Anthony I , 267 N.C. App. at 47, 831 S.E.2d at 907.) Defendant also contends the Supreme Court's recent decisions in Hilton and Strudwick do not impact his argument because they were facial challenges in contrast to his as-applied challenge.

¶ 8 We first address the standard of review. Then, to aid in the understanding of Defendant's arguments, we provide a brief overview of the recent history of SBM litigation and legislation as well as its impact on this case. Finally, we address his argument directly.

A. Standard of Review

¶ 9 We review a trial court order to determine "whether the trial judge's underlying findings of fact are supported by competent evidence, ... and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Carter , 2022-NCCOA-262, ¶ 14, 872 S.E.2d 802 (quoting State v. Williams , 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) ) (alteration in original). "We review a trial court's determination that SBM is reasonable de novo. " Id. (citing State v. Gambrell , 265 N.C. App. 641, 642, 828 S.E.2d 749, 750 (2019) ).

B. Brief History of Recent SBM Litigation and Legislation

¶ 10 With that standard of review in mind, we now provide a brief history of recent SBM litigation and how this case fits within that history. This Court's recent opinion in Carter provides a helpful overview of the history:

The Supreme Court of the United States held in Grady v. North Carolina , 575 U.S. 306, 135 S. Ct. 1368, 191 L. Ed. 2d 459 (2015) (" Grady I "), that the imposition of SBM constitutes a warrantless search under the Fourth Amendment and necessitates an inquiry into reasonableness under the totality of the circumstances. 575 U.S. at 310, 135 S. Ct. at 1371, 191 L. Ed. 2d at 462.

Carter , ¶ 15. Grady I served as the basis for Defendant's motion to dismiss the State's SBM petition. And the trial court issued its SBM ruling with Grady I as the leading case on the matter.

¶ 11 We also issued our first opinion in this case, Anthony I , before the Grady case had reached the North Carolina Supreme Court again in Grady III . See Anthony II , slip op. at 2 (noting the Supreme Court remanded the case "for reconsideration in light of" Grady III ). As Defendant highlights, we reversed the trial court order in Anthony I because "the State presented no evidence supporting the reasonableness of SBM as applied to Defendant." 267 N.C. App. at 46, 831 S.E.2d at 906. In Anthony I , we evaluated reasonableness by analyzing: "the defendant's risk of recidivism and the efficacy of SBM to accomplish a reduction of recidivism." Id. , 267 N.C. App. at 47, 831 S.E.2d at 907. Our lack-of-evidence holding focused on the second part of that analysis, the State's failure to present any evidence on whether SBM effectively prevents recidivism. Id. , 267...