State v. Dykes

• Decision Date: 22 May 2013
• Docket Number: Appellate Case No. 2010-160047,Opinion No. 27124
• Court: South Carolina Supreme Court
• Parties: The State, Respondent, v. Jennifer Rayanne Dykes, Appellant.

The State, Respondent,

v.Jennifer Rayanne Dykes, Appellant.

Appellate Case No. 2010-160047

Opinion No. 27124

STATE OF SOUTH CAROLINA In The Supreme Court

Heard September 18, 2012

Filed May 22, 2013

Appeal from Pickens County

Charles B. Simmons, Jr., Special Circuit Court Judge

AFFIRMED AS MODIFIED

Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, and Christopher D. Scalzo, of Greenville, for Appellant.

Tommy Evans, Jr. and John B. Aplin, both of Columbia, for Respondent.

E. Charles Grose, Jr. of the Grose Law Firm, of Greenwood, Chief Appellate Defender Robert M. Dudek, of Columbia, and Assistant Public Defender Shane E. Goranson, of Greenwood, for Amicus Curiae, Anthony Nation.

JUSTICE KITTREDGE:

Jennifer Dykes appeals the circuit court's order requiring that she be subject to satellite monitoring for the rest of her life pursuantto sections 23-3-540(C) and (H) of the South Carolina Code of Laws (Supp. 2011). We affirm as modified.

Section 23-3-540 represents a codification of what is commonly referred to as Jessica's Law. Many states have some version of this law, which was enacted in memory of Jessica Lunsford, a nine-year-old girl who was raped and murdered by a convicted sex offender in Florida. Across the country, these laws heightened criminal sentences and post-release monitoring of child sex offenders. The specific issue presented in this case concerns the mandate for lifetime global positioning satellite monitoring with no judicial review. The complete absence of judicial review under South Carolina's legislative scheme is more stringent than the statutory scheme of other jurisdictions. A common approach among other states is either to require a predicate finding of probability to re-offend or to provide a judicial review process, which allows for, upon a proper showing, a court order releasing the offender from the satellite monitoring requirements. See generally, N.C. Gen. Stat. Ann. § 14-208.43 (West 2010) (providing a termination procedure one year after the imposition of the satellite based monitoring or a risk assessment for certain offenders). While we hold that the statute's initial mandatory imposition of satellite monitoring is constitutional, the lifetime requirement without judicial review is unconstitutional.

I.

Dykes, when twenty-six years old, was indicted for lewd act on a minor in violation of Section 16-15-140 of the South Carolina Code (2006) as a result of her sexual relationship with a fourteen-year-old female. Dykes pled guilty to lewd act on a minor and was sentenced to fifteen years' imprisonment, suspended upon the service of three years and five years' probation.¹

Upon her release, Dykes was notified verbally and in writing that pursuant to section 23-3-540(C) she would be placed on satellite monitoring if she were to violate the terms of her probation. Shortly thereafter, Dykes violated her probation in multiple respects.² Dykes did not contest any of these violations, though she did offer testimony in mitigation.

The State recommended a two-year partial revocation of Dykes' probation and mandatory lifetime satellite monitoring. S.C. Code Ann. section 23-3-540(A) mandates that when an individual has been convicted of engaging in or attempting criminal sexual conduct with a minor in the first degree (CSC-First) or lewd act on a minor, the court must order that person placed on satellite monitoring. Likewise, if a person has been convicted of such offenses before the effective date of the statute and violates a term of her probation, parole, or supervision program, she must also be placed on satellite monitoring. See S.C. Code Ann. § 23-3-540(C). The individual must remain on monitoring for as long as she is to remain on the sex offender registry, which is for life. S.C. Code Ann. § 23-3-540(H); see also S.C. Code Ann. § 23-3-460 (requiring biannual registration for life).³ Significantly, the lifetime monitoring requirement for one convicted of CSC-First or lewd act on a minor is not subject to any judicial review process. See S.C. Code Ann. § 23-3-540(H) (prohibiting judicial review of the lifetime monitoring for CSC-First and lewd act on a minor).

In contrast, if a person is convicted of committing or attempting any offense which requires registration as a sex offender other than CSC-First or lewd act on a minor, the court has discretion with respect to whether the individual should be placed on satellite monitoring. See S.C. Code Ann. § 23-3-540(B), (D), (G)(1).⁴ In addition,after ten years, an individual who has committed the above-stated crimes may petition the court to have the monitoring removed upon a showing that she has complied with the monitoring requirements and there is no longer a need to continue monitoring her. If the court denies her petition, she may petition again every five years.⁵ S.C. Code Ann. § 23-3-540(H).

II.

At her probation revocation hearing, Dykes objected to the constitutionality of mandatory lifetime monitoring. In support of her arguments, Dykes presented expert testimony that she poses a low risk of reoffending and that one's risk of reoffending cannot be determined solely by the offense committed. The State offered no evidence, relying instead on the mandatory, nondiscretionary requirement of the statute.

The circuit court found Dykes to be in willful violation of her probation and that she had notice of the potential for satellite monitoring. The court denied Dykes' constitutional challenges and found it was statutorily mandated to impose satellite monitoring without making any findings as to Dykes' likelihood of reoffending. The court also revoked Dykes' probation for two years, but it ordered that her probation be terminated upon release. This appeal followed.

III.

The Fourteenth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. Dykes contends that the imposition of mandatory, lifetime satellite monitoring without consideration of her likelihood of re-offending violates her due process rights.

A.

Dykes asserts she has a fundamental right to be "let alone." We disagree. The United States Supreme Court has cautioned restraint in the recognition of rightsdeemed to be fundamental in a constitutional sense. See Washington v. Glucksberg, 521 U.S. 702 (1997) (noting the Supreme Court's reluctance to expand the concept of substantive due process). Indeed, courts must "exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of [members of the judiciary]." Id. at 720. The Due Process Clause protects only "those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition.'" Id. at 720-21 (internal citations omitted). We reject the suggestion that a convicted child sex offender has a fundamental right to be "let alone" that is "deeply rooted in this Nation's history and tradition."

Our rejection of Dykes' fundamental right argument flows in part from the premise that satellite monitoring is predominantly civil. See Smith v. Doe, 538 U.S. 84 (2003) (noting that whether a statute is criminal or civil primarily is a question of statutory construction). Where, as here, the legislature deems a statutory scheme civil, "only the clearest proof" will transform a civil regulatory scheme into that which imposes a criminal penalty. Id. at 92 (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)) (internal quotations omitted).

Notwithstanding the absence of a fundamental right, we do find that lifetime imposition of satellite monitoring implicates a protected liberty interest to be free from permanent, unwarranted governmental interference. We agree with other jurisdictions that have held the requirement of satellite monitoring places significant restraints on offenders that amount to a liberty interest. See Commonwealth v. Cory, 911 N.E.2d 187, 196 (Mass. 2009) (finding satellite monitoring burdens an offender's liberty interest in two ways, by "its permanent, physical attachment to the offender, and by its continuous surveillance of the offender's activities"); United States v. Smedley, 611 F.Supp.2d 971, 975 (E.D. Mo. 2009) (holding that imposing home detention with electronic monitoring as condition of release impinged on liberty interest); United States v. Merritt, 612 F.Supp.2d 1074, 1079 (D. Neb. 2009) (stating that "[a] curfew with electronic monitoring restricts the defendant's ability to move about at will and implicates a liberty interest protected under the Due Process Clause"); State v. Stines, 683 S.E.2d 411 (N.C. Ct. App. 2009) (holding that requiring enrollment in satellite-based monitoring program deprives an offender of a significant liberty interest). Therefore, having served her sentence, Dykes' mandatory enrollment in the satellite monitoring program invokes minimal due process protection.

Thus, courts must "ensure[] that legislation which deprives a person of a life, liberty, or property right have, at a minimum, a rational basis, and not bearbitrary . . . ." In re Treatment and Care of Luckabaugh, 351 S.C. 122, 139-40, 568 S.E.2d 338, 346 (2002); see also Nebbia v. N.Y., 291 U.S. 502, 525 (1934) ("[T]he guarant[ee] of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious . . . ."); Hamilton v. Bd. of Trs. of Oconee Cnty. Sch. Dist., 282 S.C. 519, 319 S.E.2d 717 (Ct. App. 1984) (holding that, to comport with due process, the legislation must have a rational basis for the deprivation and may not be "so inadequate that the judiciary will characterize it as arbitrary").

B.

The General Assembly has expressly outlined the purpose of the state's sex offender registration and electronic monitoring provisions:

The intent of this article is to promote the state's fundamental right to provide for the public health, welfare, and

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