State v. Gordon, 031720 NCCA, COA17-1077-2

Docket Nº:COA17-1077-2
Opinion Judge:ZACHARY, Judge.
Party Name:STATE OF NORTH CAROLINA v. AARON LEE GORDON
Attorney:Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph Finarelli, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A. Goldman, for defendant-appellant.
Judge Panel:Judge BROOK concurs. DIETZ, Judge, concurring in the judgment.
Case Date:March 17, 2020
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

AARON LEE GORDON

No. COA17-1077-2

Court of Appeals of North Carolina

March 17, 2020

Originally heard in the Court of Appeals 22 March 2018

Appeal by defendant from order entered 13 February 2017 by Judge Susan E. Bray in Forsyth County No. 15 CRS 58663-4 Superior Court. Originally heard in the Court of Appeals 22 March 2018, with opinion issued 4 September 2018. On 4 September 2019, the Supreme Court allowed the State's petition for discretionary review for the limited purpose of remanding to this Court for reconsideration in light of the Supreme Court's decision in State v. Grady, 372 N.C. 509, 831 S.E.2d 542 (2019).

Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph Finarelli, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A. Goldman, for defendant-appellant.

ZACHARY, Judge.

Defendant Aaron Lee Gordon timely appealed from the trial court's order requiring him to enroll in lifetime satellite-based monitoring following his eventual release from prison. On 4 September 2018, this Court filed a published opinion vacating the trial court's civil order mandating satellite-based monitoring. See State v. Gordon, __ N.C.App. __, 820 S.E.2d 339 (2018). The State subsequently filed a petition for discretionary review with the North Carolina Supreme Court. On 4 September 2019, the Supreme Court allowed the State's petition for discretionary review for the limited purpose of remanding to this Court for reconsideration in light of the Supreme Court's decision in State v. Grady, 372 N.C. 509, 831 S.E.2d 542 (2019) ("Grady III"). Upon reconsideration, we reverse the trial court's civil order mandating satellite-based monitoring.

Background

I. Satellite-Based Monitoring

Our General Assembly enacted "a sex offender monitoring program that uses a continuous satellite-based monitoring system . . . designed to monitor" the locations of individuals who have been convicted of certain sex offenses. N.C. Gen. Stat. § 14-208.40(a) (2019). The present satellite-based monitoring program provides "[t]ime-correlated and continuous tracking of the geographic location of the subject using a global positioning system based on satellite and other location tracking technology." Id. § 14-208.40(c)(1). The reporting frequency of an offender's location "may range from once a day (passive) to near real-time (active)." Id. § 14-208.40(c)(2).

After determining that an individual meets the criteria for one of three categories of offenders subject to the satellite-based monitoring program, see id. § 14-208.40(a)(1)-(3), the trial court must conduct a hearing in order to determine the constitutionality of ordering the targeted individual to enroll in the satellite-based monitoring program. Grady v. North Carolina, 575 U.S. 306, 310, 191 L.Ed.2d 459, 462 (2015) ("Grady I"); State v. Blue, 246 N.C.App. 259, 264, 783 S.E.2d 524, 527 (2016). The trial court may order a qualified individual to enroll in the satellite-based monitoring program during the initial sentencing phase pursuant to N.C. Gen. Stat. § 14-208.40A, or, under certain circumstances, at a later time during a "bring-back" hearing pursuant to N.C. Gen. Stat. § 14-208.40B. For an individual for whom satellite-based monitoring is imposed during the defendant's sentencing hearing pursuant to N.C. Gen. Stat. § 14-208.40A, monitoring shall begin upon the defendant's release from prison.

II. Defendant's Enrollment

In February 2017, Defendant pleaded guilty to statutory rape, second-degree rape, taking indecent liberties with a child, assault by strangulation, and first-degree kidnapping. Defendant was sentenced to 190-288 months' imprisonment and ordered to submit to lifetime sex-offender registration. After determining that Defendant was convicted of an "aggravated offense" under N.C. Gen. Stat. § 14-208.6(1A), the trial court then ordered that Defendant enroll in the satellite-based monitoring program for the remainder of his natural life upon his release from prison.

The State's only witness at Defendant's satellite-based monitoring hearing was Donald Lambert, a probation and parole officer in the Forsyth County sex-offender unit. Lambert explained that the device currently used to monitor offenders enrolled in satellite-based monitoring is "just basically like having a cell phone on your leg." The battery requires two hours of charging each day, which requires that Defendant plug the charging cord into an electric outlet while the device remains attached to his leg. The charging cord is approximately eight to ten feet long. Every 90 days, Defendant must also allow a monitoring officer to enter his home in order to inspect and service the device.

Lambert testified that the device currently in use monitors an offender's location "at all times[.]" Once Defendant is released from prison and enrolled in satellite-based monitoring, "we [will] monitor [him] weekly. . . . [W]e just basically check the system to see his movement to see where he is, where he is going weekly. . . . [W]e review all the particular places daily where he's been." "[T]he report that can be generated from that tracking . . . gives that movement on a minute-by-minute position," as well as "the speed of movement at the time[.]" Under the current statutory regime, a monitoring officer may access an offender's location data at any time without obtaining a search warrant. If Defendant enters a restricted area-for example, if he drives past a school zone-the monitoring system will immediately alert the relevant authorities. Lambert explained that in such an event, monitoring officers typically "contact [the enrollee] by phone immediately after they get the alert, ask...

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