State v. Griffin

• Court: North Carolina Court of Appeals
• Writing for the Court: INMAN, Judge.
• Citation: State v. Griffin, 879 S.E.2d 361 (N.C. App. 2022)
• Decision Date: 18 October 2022
• Docket Number: COA17-386-3
• Parties: STATE of North Carolina v. Thomas Earl GRIFFIN, Defendant.

879 S.E.2d 361

STATE of North Carolina

v.Thomas Earl GRIFFIN, Defendant.

No. COA17-386-3

Court of Appeals of North Carolina.

Filed October 18, 2022

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

Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for Defendant-Appellant.

INMAN, Judge.

¶ 1 In this decision, we address, for the third time, whether the imposition of satellite-based monitoring ("SBM") for a term of thirty years violates Defendant Thomas Earl Griffin's rights under the Fourth Amendment to the United States Constitution. After careful review, and 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 North Carolina General Assembly's revisions to the SBM program, 2021 N.C. Sess. Laws ch. 138, § 18, we affirm the trial court's SBM order.

I. FACTUAL AND PROCEDURAL HISTORY

A. Defendant's Conviction, SBM Order, and Initial Appeal

¶ 2 This Court summarized the pertinent underlying facts in our earlier decisions, State v. Griffin, 260 N.C. App. 629, 629-33, 818 S.E.2d 336, 337-39 (2018) (" Griffin I "), and State v. Griffin , 270 N.C. App. 98, 99-101, 840 S.E.2d 267, 269-70 (2020) (" Griffin II "). Per our recitation of the facts in those opinions:

In 2004, Defendant entered an Alford plea to one count of first-degree sex offense with a child. Griffin I , 260 N.C. App. at 629–33, 818 S.E.2d at 337. At sentencing, Defendant admitted to the digital and penile penetration of his girlfriend's minor daughter over the course of three years. Id. at 630–31, 818 S.E.2d at 338. The trial court sentenced Defendant to imprisonment for 144 to 182 months and recommended the completion of SOAR, a sex offender treatment program. Id.

Eleven years after his conviction, in 2015, Defendant was released from prison on a five-year term of post-release supervision. Id. Three months later, the State sought SBM of Defendant under N.C. Gen. Stat. § 14-208.40(a)(2), as he had been sentenced for a reportable sex offense as defined by N.C. Gen. Stat. § 14-208.6(4) and therefore could be subject to SBM if ordered by a court. Id.

Defendant appeared before the trial court at a "bring-back" hearing in August 2016, where a "Revised STATIC-99 Coding Form" ("Static-99"), prepared by the Division of Adult Correction and Juvenile Justice and designed to estimate the probability of recidivism, was entered into evidence. Id. According to the Static-99, Defendant presented a "moderate-low" risk, the second lowest of four possible categories. Id.

The State called Defendant's parole officer as a witness, who testified that Defendant failed to complete the SOAR program but had not violated any terms of his post-release supervision. Id. The officer also described the physical characteristics and operation of the SBM device. Id. The State did not introduce any evidence regarding how it would use the SBM data or whether SBM would be effective in protecting the public from potential recidivism by Defendant. Id.

After taking the matter under advisement, the trial court entered a written order imposing SBM on Defendant for thirty years. Id. at 630–33, 818 S.E.2d at 338-39. That order included the following findings of fact and conclusion of law:

1. The defendant failed to participate in and[/]or complete the SOAR program.

2. The defendant took advantage of the victim's young age and vulnerability: the victim was 11 years old [while] the defendant was 29 years old.

3. The defendant took advantage of a position of trust; the defendant was the live-in boyfriend of the victim's mother. The family had resided together for at least four years and [defendant] had a child with the victim's mother.

4. Sexual abuse occurred over a three year period of time.

The court has weighed the Fourth Amendment right of the defendant to be free from unreasonable searches and seizures with the publics [sic] right to be protected from sex offenders and the court concludes that the publics [sic] right of protection outweighs the "de minimis" intrusion upon the defendant's Fourth Amendment rights.

Id. at 631–32, 818 S.E.2d at 339.

Griffin II , 270 N.C. App. at 99-101, 840 S.E.2d at 269-70.

¶ 3 The above facts, coupled with this Court's then-binding decision in State v. Grady , 259 N.C. App. 664, 817 S.E.2d 18 (2018) (" Grady II "), led us to reverse the SBM order in Griffin I "because the State failed to present any evidence that SBM is effective to protect the public from sex offenders." 260 N.C. App. at 637, 818 S.E.2d at 342.

B. Grady III and Griffin II

¶ 4 The State appealed our decision in Griffin I and, while that appeal was pending, our Supreme Court modified and affirmed Grady II in State v. Grady , 372 N.C. 509, 831 S.E.2d 542 (2019) (" Grady III "). Grady III applied a three-factor totality of the circumstances test to determine the reasonableness of lifetime SBM and held that lifetime SBM under the statutes then in effect was unconstitutional as to all offenders who were not subject to probation and were enrolled in SBM solely on the basis of recidivism. 372 N.C. at 511, 831 S.E.2d at 546-47. The State's appeal of Griffin I was subsequently dismissed, and our Supreme Court remanded the matter to this Court for reconsideration in light of Grady III . State v. Griffin , 372 N.C. 723, 839 S.E.2d 841 (2019).

¶ 5 On remand, we recognized that because Defendant did not receive lifetime SBM as a result of any recidivist status, " Grady III does not compel the result we must reach in this case, [but] its reasonableness analysis does provide us with a roadmap to get there." Griffin II , 270 N.C. App. at 106, 840 S.E.2d at 273. Our application of Grady III ’s Fourth Amendment analysis to the particular facts of Defendant's case led us to again hold that the SBM order failed to pass constitutional muster under the totality of the circumstances. Id. at 110, 840 S.E.2d at 276.

C. Hilton , Strudwick , and Legislative Changes to SBM

¶ 6 The State appealed our decision once more, and, as in the appeal of Griffin I , the SBM landscape shifted while the matter was pending before the Supreme Court. First came Hilton , in which our Supreme Court declined to extend Grady III to other categories of defendants and held that the imposition of lifetime SBM on aggravated offenders was constitutional. Hilton , ¶ 36 ; see also State v. Carter , 283 N.C.App. 61, 2022-NCCOA-262, ¶ 18, 872 S.E.2d 802 (recognizing that "our Supreme Court narrowly construed Grady III ’s holding" in Hilton ). Then our Supreme Court decided Strudwick , which reaffirmed the narrow application of Grady III to hold that, under the three-step reasonableness inquiry "enunciated in Grady III [ ] and further developed in Hilton ," Strudwick , ¶ 20, lifetime SBM was constitutional for another aggravated offender, id. ¶ 28.

¶ 7 As elsewhere recognized by this Court, Strudwick also announced two other important points of law:

First, the Supreme Court clarified the reasonableness determination takes place in the present, not the future.

....

The second relevant additional aspect of Strudwick is its discussion on how to reevaluate SBM orders as time moves forward and circumstances change. Strudwick , ¶¶ 15–17. Strudwick indicates a defendant could file a petition under Rule 60 of the North Carolina Rules of Civil Procedure on the grounds "it is no longer equitable that the judgment should have prospective application" or "[a]ny other reason justifying relief from the operation of the judgment." Id. , ¶ 16 (quoting N.C. Gen. Stat. § 1-1A, Rule 60(b)(5)–(6) (2019)); see alsoid. , ¶ 17 (further explaining how subsections (5) and (6) could provide paths to relief). The Supreme Court also noted a defendant could file a petition under North Carolina General Statute § 14-208.43 (2019). Strudwick , ¶ 15.

State v. Anthony , 2022-NCCOA-414, ¶¶ 17-18, 876 S.E.2d 76.

¶ 8 The General Assembly also made substantial revisions to our SBM statutes while the State's appeal of Griffin II was pending. Under the statutes now in effect, "[a]n offender who was ordered prior to December 1, 2021, to enroll in [SBM] for a period longer than 10 years may file a petition for termination or modification of the monitoring requirement with the superior court in the county where the conviction occurred." N.C. Gen. Stat. § 14-208.46(a) (2021). Then, "[i]f the petitioner has not been enrolled in the [SBM] program for at least 10 years, the court shall order the petitioner to remain enrolled in the [SBM] program for a total of 10 years." Id. § 14-208.46(d). Alternatively, "[i]f the petitioner has been enrolled in the [SBM] program for more than 10 years, the court shall order the petitioner's requirement to enroll in the [SBM] program be terminated." Id. § 14-208.46(e). In short, "[c]ombined with a change setting a ten-year maximum on new SBM enrollments, the statutory system now limits SBM to ten years for all offenders." Anthony, ¶ 19 (citations omitted).

¶ 9 On 14 December 2021, our Supreme Court again declined to take the State's appeal of Griffin II on the merits and, instead, remanded the matter to this Court for reconsideration in light of Hilton , Strudwick , and the General Assembly's changes to the SBM statutes. State v. Griffin , 379 N.C. 671, 865 S.E.2d 849.

II. ANALYSIS

¶ 10 Consistent with the Supreme Court's order, we now consider Defendant's challenge to the constitutionality of the trial court's order imposing SBM for a term of thirty years in light of Hilton , Strudwick , and the revised SBM statutes. We also have the benefit of this Court's recent decisions in Carter and Anthony , which undertook the same effort in the context of aggravated offenders subject to lifetime SBM. Recognizing that Defendant is neither a recidivist nor an aggravated offender and is subject to SBM for a term of years rather than life, we nonetheless hold that, in light of the foregoing legal developments, including...