State v. Hilton, 051920 NCCA, COA19-226
|Opinion Judge:||DILLON, JUDGE|
|Party Name:||STATE OF NORTH CAROLINA v. DONALD EUGENE HILTON|
|Attorney:||Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph Finarelli, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.|
|Judge Panel:||Judge TYSON concurs. Judge BROOK concurs in result in part and dissents in part by separate opinion. BROOK, Judge, concurring in the result in part and dissenting in part.|
|Case Date:||May 19, 2020|
|Court:||Court of Appeals of North Carolina|
Heard in the Court of Appeals 18 September 2019.
Appeal by Defendant from order entered 10 May 2018 by Judge Daniel A. Kuehnert in Catawba County No. 05CRS8924 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph Finarelli, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.
Donald Eugene Hilton ("Defendant") appeals from the trial court's order enrolling him in lifetime satellite-based monitoring ("SBM"), contending that the imposition of SBM constitutes an unreasonable search. We conclude that the imposition of SBM on Defendant during the period of his post-release supervision constitutes a reasonable search. However, we conclude that the imposition of SBM thereafter is unreasonable and remand for additional findings. Accordingly, we affirm in part, and reverse in part and remand.
In 2005, Defendant committed various sex crimes with a minor female. In April 2007, Defendant pleaded guilty to statutory rape and to a statutory sexual offense stemming from his 2005 conduct. He was sentenced to 144 to 182 months of imprisonment. In his sentence, he was given credit for approximately 22 months for his pre-sentence confinement, leaving a remaining sentence of approximately 122 months (or about 10 years) to 160 months (or about 13 years).
In July 2017, approximately 122 months after being sentenced, Defendant was released from prison, but subject to post-release supervision. As a condition of his post-release supervision, Defendant was ordered not to leave Catawba County without the consent of his probation officer.1
During his post-release supervision period, Defendant violated a post-release supervision condition by leaving Catawba County, traveling to Caldwell County, without the knowledge or approval of his probation officer. He was subsequently arrested for and charged with taking indecent liberties with his fifteen-year-old niece, while absconding in Caldwell County.
In April 2018, following his arrest, Catawba County prosecutors noticed a hearing for the trial court to consider whether Defendant should be required to enroll in the SBM program based on his 2007 convictions, (not based on his post-conviction absconding violation). After a hearing on the matter, the trial court ordered Defendant to enroll in the SBM program for the rest of his natural life.
An appeal of right lies with this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2017). See State v. Singleton, 201 N.C.App. 620, 626, 689 S.E.2d 562, 566 (2010) ("this Court has jurisdiction to consider appeals from SBM monitoring determinations under N.C. Gen. Stat. § 14-208.40B pursuant to N.C. Gen. Stat. § 7A-27").
III. Standard of Review
The trial court mandated that Defendant be enrolled in lifetime SBM under Section 14-208.40B. N.C. Gen. Stat. § 14-208.40B (2018). Defendant makes no argument that the trial court exceeded its authority under our General Statutes. Indeed, the trial court acted within its statutory authority to impose lifetime SBM on Defendant in the callback hearing, as the trial court found that Defendant's 2007 conviction was for an "aggravated offense." See N.C. Gen. Stat. § 14-208.40B ("If the court finds that . . . the conviction offense was an aggravated offense . . . the court shall order the offender to enroll in satellite-based monitoring for life.").
Rather, Defendant argues that the trial court exceeded its constitutional authority, that the imposition of lifetime SBM under Section 14-208.40B as applied in his case constitutes an unreasonable search under the Fourth Amendment of the United States Constitution.
We conclude that the imposition of lifetime SBM under Section 14-208.40B is unconstitutional as applied to this Defendant, in part. Specifically, we hold that the imposition of SBM beyond the period of Defendant's post-release supervision constitutes an unreasonable search. However, the imposition of SBM during the period of his post-release supervision is reasonable. During this period, Defendant's expectation of privacy is very low. And though the State failed to present evidence showing the efficacy of SBM in solving sex crimes, it did present evidence showing SBM's efficacy in aiding the State in determining whether Defendant is violating the condition of his post-release supervision, that he remain within Catawba County. See, e.g., State v. Griffin, __ N.C.App. __, __, 2020 N.C.App. LEXIS 139 at *17 ( N.C. Ct. App. Feb. 20, 2020) (recognizing that a sex-offender's rights are "appreciably diminished during his  term of post-release supervision, that is not true for the remaining [term] of SBM imposed [after the post-release supervision terminates]").
We hold that the "for life" language contained in Section 14-208.40B is severable from the rest of that statute. It is, therefore, appropriate for us to affirm that portion of the trial court's order which imposes SBM under Section 14-208.40B for the remainder of the period that Defendant is subject to post-release supervision. Indeed, our Supreme Court has recognized that "if the invalid part [of a statute] is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out[.]" State v. Fredell, 283 N.C. 242, 245, 195 S.E.2d 300, 302 (1973). The Court explained that a provision is severable if the remaining provisions "are operative and sufficient to accomplish" the General Assembly's purpose in enacting the statute. Id. at 245, 195 S.E.2d at 302. We do not believe that it offends the General Assembly's purpose in enacting Section 208.40B if it is applied for some period less than a defendant's life. Rather, the General Assembly's purpose in enacting this Section is better served if SBM can be imposed for some period of time rather than not at all, where it has been determined that a defendant has committed an aggravated sexual offense and that the imposition for at least some period of time would not offend the Fourth Amendment. This situation is similar to a situation where a defendant commits a crime and is sentenced to a term that is later determined by a court to violate the Eighth Amendment's prohibition against cruel and unusual punishments. In that situation, the reviewing court does not order the defendant released, but reduces the sentence to comply with the Eighth Amendment.
A. Reasonableness of the Search
The United States Supreme Court held that the imposition of SBM effects a continuous warrantless search. Grady v. North Carolina, 575 U.S. 306, 310, 191 L.Ed.2d 459, 462-63 (2015). But the Court noted that an SBM "search" is not necessarily unconstitutional. Id. at 310, 191 L.E.2d at 462-63. Rather, the imposition of SBM is unconstitutional only if it is unreasonable, and the Court held that the reasonableness of an SBM search is to be determined based on the "totality of the circumstances[.]" Id. at 310, 191 L.E.2d at 462-63. In considering the totality of the circumstances, the Court stated that a reviewing court is to consider, among other things, "the nature and purpose of the search" and "the extent to which the search intrudes upon reasonable expectations of privacy." Id. at 310, 191 L.E.2d at 462.
In the recent seminal case on our State's SBM program, our Supreme Court held that the imposition of SBM is unconstitutional as applied to a particular class of defendants: sexual offenders who are no longer under any form of post-release supervision, parole or probation and who meet the statutory definition of a "recidivist." State v. Grady, 372 N.C. 509, 545, 831 S.E.2d 542, 568-69 (2019). Though the holding was limited to a subset of unsupervised, convicted sex offenders, the Grady holding appears to impose a high standard on the State to meet in order to show reasonableness when imposing SBM on any convicted sex offender who is not under any form of State supervision, mainly because of the high burden of showing the efficacy of SBM in helping solve future crimes.
In its analysis, though, our Supreme Court recognized that the calculus of reasonableness is different when a defendant is subject to State supervision. See id. at 526, 831 S.E.2d at 556 (differentiating its holding to cases where there is an "ongoing supervisory relationship between defendant and the State"). For instance, in the Conclusion section, the Court emphasized that its holding does not enjoin all of the SBM program's applications, in part, "because this provision is still enforceable against a [sex offender] during the period of his or her State supervision[.]" Id. at 547, 831 S.E.2d at 570 (emphasis added).
In the present case, the trial court concluded that the imposition of SBM would be reasonable and would be so for the remainder of Defendant's natural life. In support of its conclusion, the trial court found: that Defendant had been convicted of aggravated sexual offenses in 2007; that he was released in 2017; that he violated the terms of his post-release supervision by leaving Catawba County without notifying his parole/probation officer; that the SBM device is not overly intrusive; that the SBM device monitors Defendant's location at all times; and that there does not currently exist any similar forms of monitoring available.2
Based on Grady, we must conclude that the trial court's imposition of SBM on...
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