State v. Carter

• Decision Date: 19 April 2022
• Docket Number: COA20-885
• Citation: 872 S.E.2d 802
• Parties: STATE of North Carolina v. Michael Eugene CARTER, Defendant.
• Court: North Carolina Court of Appeals

872 S.E.2d 802

STATE of North Carolina

v.Michael Eugene CARTER, Defendant.

No. COA20-885

Court of Appeals of North Carolina.

Filed April 19, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Caden William Hayes, for the State.

Joseph P. Lattimore, for Defendant-Appellant.

INMAN, Judge.

¶ 1 Following our Supreme Court's recent decision in State v. Hilton , 378 N.C. 692, 2021-NCSC-115, 862 S.E.2d 806, and in light of recent amendments to North Carolina's satellite-based monitoring ("SBM") statutes, we affirm the trial court's order imposing SBM for the sex offender's life.

I. FACTUAL & PROCEDURAL BACKGROUND

¶ 2 The facts underlying the sex offender's convictions are undisputed:

¶ 3 Defendant-Appellant Michael Eugene Carter ("Defendant") and his partner, Elizabeth Hairston ("Ms. Hairston"), lived together with their child and Ms. Hairston's two other children from prior relationships. At the time they were living together, Defendant was a registered sex offender based on a conviction in 2002 for solicitation to commit statutory rape.

¶ 4 In May 2014, Ms. Hairston went out of town for the weekend, leaving the children in Defendant's sole care. While Ms. Hairston was away, Defendant lured Ms. Hairston's 12-year-old daughter, Takira,¹ to Ms. Hairston's bedroom and forced her to perform oral sex on him. Defendant silenced Takira by telling her "no one would believe her."

¶ 5 In June 2014, Defendant again forced Takira to perform oral sex on him and digitally penetrated her vagina. On a third occasion, Defendant forced Takira to perform oral sex on him in a closet in the home while the other children played outside. Ms. Hairston's father saw Defendant and the child emerge from the closet and told Ms. Hairston.

¶ 6 In late October and early November 2014, Defendant was arrested for various traffic violations. Following his release, Defendant assaulted Takira a fourth time, forcing her to perform oral sex. Before August of 2015, Takira reported the abuse to her mother. Ms. Hairston confronted Defendant and kicked him out of the home. She did not report the abuse to police until 2019.

¶ 7 In 2019, Defendant was indicted for unlawfully being at a school while a sex offender, three charges of sexual offense with a child while in a parental role, three charges of indecent liberties with a child, and four charges of first-degree sexual offense with a child below the age of thirteen. Defendant pled guilty to all charges. Pursuant to the plea agreement, the trial court consolidated the charges and sentenced Defendant to 220 to 324 months in prison on 10 February 2020.

¶ 8 During sentencing, the trial court announced its intent to order SBM along with related proposed factual findings. The trial court considered Defendant for SBM because he was a recidivist and had committed a sexually violent offense. After stating its proposed findings, the trial court asked the case detective to testify about Defendant's prior 2002 conviction. The State then elicited testimony from the detective about Defendant's past sex offender registration violations. The State presented no further evidence. The trial court recessed the proceeding for additional research.

¶ 9 The next day, after returning from recess, the trial court judge announced, "I don't know that lifetime monitoring is appropriate. What I'm considering is satellite-based monitoring as a condition to his five-year post-release supervision[.]" Defense counsel objected, asserting that a reasonableness hearing was required under State v. Grady , 372 N.C. 509, 831 S.E.2d 542 (2019) (" Grady III "). In response to defense counsel's final objection to SBM's reasonableness, the trial court said, "I don't know, given that it is not lifetime, I don't know that the reasonable Fourth Amendment concerns that from [sic] the basis of Grady, or post Grady decisions, apply." Then the trial court orally ordered "as a condition of Mr. Carter's post-release supervision, pursuant to [N.C. Gen. Stat. §] 15(a)-1368.4(b)(1), subsection (6), that he be required to enroll in satellite-based monitoring for the duration of his post-release supervision, as provided by statute."

¶ 10 In its written judgment, the trial court entered a form order titled "Judicial Findings and Order for Sex Offenders—Active Punishment," AOC-CR-615 (rev. 11/18), requiring SBM enrollment upon Defendant's release from prison for his "natural life" based on his status as a recidivist.² Although Defendant committed sexual offenses with a child younger than thirteen, the trial court did not check the box on the order imposing SBM indicating that fact, which is an independent basis for the imposition of lifetime SBM. It is undisputed that Defendant pled guilty to and was convicted of committing sexual offenses against a child younger than thirteen.

¶ 11 The trial court entered additional written findings addressing the reasonableness of Defendant's post-release SBM and ordered further trial court review after Defendant's release to consider then-existing technology and constitutional standards:

1. The defendant was on the Sex-Offender Registry at the time of the present offenses and the Registry was not effective in deterring the defendant's conduct or providing for public safety;

2. The offenses for which the defendant has now been convicted occurred over many dates and over a span of time, indicating persistent child sexual criminal intent and fixation;

3. The span between the defendant's initial conviction for a child sex offense and the present series of offenses indicates a long-standing and persistent tendency and is predictive of future offenses;

4. The defendant's expectation of privacy is necessarily limited during Post-Release Supervision, and the additional Search attendant with Satellite-Based Monitoring during Supervision is reasonable under the circumstances;

5. During the commission of the present child sex offenses the defendant repeatedly went upon school property in violation of the North Carolina General Statutes, and furthermore was in the presence and care of unauthorized children in violation of the North Carolina General Statutes, and thus the Sex-Offender Registry and Statutes relating to child sex offenders were not effective in deterring the defendant's conduct or providing for the public safety.

It is further Ordered that the defendant have a Hearing before the Superior Court after his release from the Division of Adult Correction so that the Court may determine the nature and degree that a "Search" such as Satellite-Based Monitoring will constitute under then existing technology, and therefore determine whether Satellite-Based Monitoring is constitutional under then-existing circumstances pursuant to Grady and subsequent case law.

Defendant timely appealed.

II. ANALYSIS

A. Appellate Jurisdiction

¶ 12 As an initial matter, we overrule the State's contention this issue is not ripe for our review. Although the trial court has ordered another reasonableness hearing upon Defendant's release from prison, the trial court has already imposed SBM upon Defendant. We have reviewed challenges to the reasonableness of SBM at the time it is imposed on many occasions. See, e.g., State v. Hutchens , 272 N.C. App. 156, 162, 846 S.E.2d 306, 312 (2020) ("Defendant's SBM order was entered at the same time as his sentence, so he will not be subject to SBM until he serves his prison term of roughly seven-and-a-half to fourteen-and-a-half years."); State v. Gordon , 270 N.C. App. 468, 474, 840 S.E.2d 907, 913 (2020) ("Defendant was ordered to submit to satellite-based monitoring solely due to his conviction of an aggravated offense; however, he will not actually enroll in the program for approximately 15 to 20 years, after he has completed his active prison sentence. The State filed its satellite-based monitoring application at the time of Defendant's sentencing, in accordance with N.C. Gen. Stat. § 14-208.40A.").

B. SBM and Fourth Amendment Reasonableness

¶ 13 Defendant asserts the trial court erred by imposing SBM because the State failed to present any evidence about the reasonableness of the monitoring and the trial court did not conduct a formal hearing on this issue. A recent decision from our Supreme Court and legislative amendments to our SBM statutes compel us to disagree.

¶ 14 Reviewing a trial court order, we consider "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. Williams , 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted). We review a trial court's determination that SBM is reasonable de novo. State v. Gambrell , 265 N.C. App. 641, 642, 828 S.E.2d 749, 750 (2019) (citation omitted).

1. Recent Reasonableness Precedence

¶ 15 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.

¶ 16 Following that holding by the Supreme Court of the United States, in Grady III , our Supreme Court considered whether mandatory lifetime SBM based solely on the defendant's status as a "recidivist" sex offender "is reasonable when ‘its intrusion on the individual's Fourth Amendment interests’ is balanced ‘against its promotion of legitimate governmental interests.’ " 372 N.C. at 527, 831 S.E.2d at 557 (quoting Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 652-53, 115 S.Ct. 2386, 2390-91, 132 L. Ed. 2d 564, 574 (1995) ). After extensive and careful balancing, our Supreme Court concluded:

[A]pplication of the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14-208.40B(c) to individuals in the same category as defendant, under which these

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