State v. Hutchens

• Decision Date: 16 June 2020
• Docket Number: No. COA 19-787,COA 19-787
• Citation: 846 S.E.2d 306
• Parties: STATE of North Carolina v. Ronnie HUTCHENS, Defendant.
• Court: North Carolina Court of Appeals

846 S.E.2d 306

STATE of North Carolina

v.Ronnie HUTCHENS, Defendant.

No. COA 19-787

Court of Appeals of North Carolina.

Filed: June 16, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya Calloway-Durham, for the State.

Sarah Holladay, for Defendant.

INMAN, Judge.

Ronnie Hutchens ("Defendant"), who raped his roommate and forced her to perform oral sex, was sentenced to a prison term of roughly seven to fourteen years, to be followed by five years of post-release supervision on conditions including satellite-based monitoring ("SBM"). He appeals, by petition for writ of certiorari, from an order requiring him to submit to SBM for the remainder of his life. We grant Defendant's petition in our discretion and, based on recent decisions from the Supreme Court of the United States and the North Carolina Supreme Court, reverse the trial court's order imposing lifetime SBM.

Defendant also seeks review of an order assessing attorney's fees against him as part of his sentencing, and the State concedes error under State v. Friend , 257 N.C. App. 516, 809 S.E.2d 902 (2018). But because no civil judgment for those attorney's fees has been entered, we dismiss this portion of Defendant's appeal.

I. FACTUAL AND PROCEDURAL HISTORY

The record on appeal discloses the following:

On 9 July 2018, Defendant entered an Alford plea to second degree forcible rape, second degree sex offense, and assault on a female. The trial court completed a prior record level worksheet disclosing a lengthy history of felony and misdemeanor convictions, consisting largely of larceny, breaking and entering, drug possession, and forgery convictions between 1982 and 2016. The worksheet also showed two misdemeanor convictions for assault on a female from 1997 and 2015. In conjunction with Defendant's plea and prior record level, the trial court sentenced Defendant to 110 months to 192 months imprisonment. It also ordered Defendant to have no contact with the victim.

Because Defendant pled guilty to a sexually violent offense, the trial court held a hearing on whether to impose lifetime SBM pursuant to N.C. Gen. Stat. § 14-208.40A(c) (2017). At the hearing, the State introduced testimony from Brandon Cox, a probation officer, regarding the use of SBM to track defendants. Officer Cox testified that SBM is conducted via an ankle bracelet called an ET-1 that monitors a defendant's location and speed of travel. The device is waterproof, measures roughly an inch-and-a-half wide and three inches tall, and must be plugged into an electrical outlet to be recharged. Officer Cox also testified that his office checks the information collected from the device at least three times a week to ensure that the offender is "complying with their sex offender treatment classes or any other specific items on their judgment ... [and that] they're not going to places they're not supposed to be going to and complying with all the conditions of the registry." If the data discloses that an offender has been in a prohibited place or attempted to remove the bracelet, a probation officer is sent to investigate. Officer Cox acknowledged that although he did not consider the "main objective" of SBM to "generate evidence for law enforcement," the data collected by his office can be used by police "to exonerate an individual and/or it could be used against them."

The State also introduced a Static-99 into evidence. Officer Cox, who completed the form for Defendant, testified that it is used to "predict[ ] the sexual recidivism for th[e] offender," and that Defendant scored a 1, placing him in the "low risk" category. According to Officer Cox, "[o]ffenders with the same score, in multiple routine samples, have been found to sexually recidivate at 2.5 to ... 5.8 percent after five years."

After the State's presentation of evidence, Defendant argued that the imposition of lifetime SBM was not a reasonable warrantless search under the Fourth Amendment based on State v. Grady , 259 N.C. App. 664, 817 S.E.2d 18 (2018) (" Grady II "), aff'd as modified , 372 N.C. 509, 831 S.E.2d 542 (2019) (" Grady III" ). The State argued that even though Defendant had scored in the low risk category on the Static-99, he did so only because of his advanced age. The State pointed out that when Defendant's age was removed from the Static-99 risk assessment, Defendant scored in the "moderate to high" risk level. Further, the State argued that Defendant's first violent offense, in 1997, indicated that his propensity for violence increased as he aged. It also argued that Defendant's privacy rights were appreciably diminished because Defendant is a convicted felon, a registered sex offender, and will be subject to post-release supervision for five years after his release from prison. The State argued that SBM served a legitimate governmental interest because it promoted "re-integration and positive ... citizenship of individuals" by deterring defendants from reoffending. It also argued that SBM served a special need divorced from law enforcement but, in doing so, proceeded to restate its earlier argument: "this is ... to help ensure that ... they are continuing to comply with the law; they're being law-abiding citizens; that they're not engaging in further conduct that has become a risk factor[.] ... We, as a society, have a vested interest in seeing that no further sex crimes occur." The State did not introduce any evidence showing SBM was actually effective in accomplishing those objectives.

At the conclusion of the hearing, the trial court announced that lifetime SBM constituted a reasonable search and served a special purpose "to ensure ... that there is not recidivism." In support of its ruling, the trial court found that the SBM device constituted "a relatively minimal intrusion upon individual privacy, particularly those individuals who are convicted of sex offenses and are required to be on the registry." It further found "that the State has met, by the preponderance of evidence, that the imposition of [SBM] does promote a governmental interest in this case; it is accurate." And it found that Defendant showed a sufficient risk of reoffending based on his prior criminal history, as it demonstrated his "propensity to commit violent offenses seems to have increased with age rather than diminished with age."

The trial court entered its SBM order and written judgment sentencing Defendant on 9 July 2018. The criminal judgment also indicated that Defendant was ordered to pay $1,200 in attorney's fees, but the record on appeal does not include a civil judgment entered in accordance with N.C. Gen. Stat. § 7A-455(b) (2017). Nor does the record disclose that Defendant was given an opportunity to be heard on the issue as required by Friend .

Defendant did not seek to appeal any orders entered in his case until he sent a letter dated 17 February 2019 to the Alamance County Clerk of Superior Court, in which he requested an appeal of his second degree rape conviction "on the grounds of conflict of interest and ineffective assistance of counsel." After the filing of appellate entries and appointment of counsel, Defendant filed a petition for writ of certiorari on 15 November 2019 requesting review of the SBM order.

II. ANALYSIS

A. Appellate Jurisdiction

1. SBM Order

"A defendant must file a written notice of appeal from an SBM order pursuant to Rule 3 of the Rules of Appellate Procedure because of the civil nature of SBM proceedings." State v. Lopez , 264 N.C. App. 496, ––––, 826 S.E.2d 498, 503 (2019). However, this Court has granted a defendant's petition for writ of certiorari to review a meritorious challenge to an SBM order notwithstanding his failure to file a written notice of appeal—timely or otherwise. Id. at 504. We have done so even when the defendant failed to give oral notice of appeal. See State v. Simmons , 253 N.C. App. 239, 798 S.E.2d 441, 2017 WL 1381810, *3 (2017) (unpublished) (granting certiorari to review and reverse an SBM order when the defendant filed a written appeal from his underlying convictions but did not appeal the SBM order orally or in writing). Further, we have allowed certiorari review of an SBM order when the defendant filed a defective pro se written notice of appeal that was not served on the State " ‘[i]n the interest of justice, and to expedite the decision in the public interest.’ " State v. Robinson , 249 N.C. App. 568, 572, 791 S.E.2d 862, 865 (2016) (quoting State v. Brooks , 204 N.C. App 193, 195, 693 S.E.2d 204, 206 (2010) ). Given the meritorious nature of Defendant's argument, and the current "tumultuous time in our case law regarding the parties’ burdens and the role of the trial court in hearings on SBM," Lopez , 264 N.C. App. at ––––, 826 S.E.2d at 509, we allow his petition for writ of certiorari to review the SBM order in our discretion.

2. Attorney's Fees

Defendant acknowledges in his principal brief that the lack of a civil judgment for fees deprives this Court of subject matter jurisdiction. State v. Jacobs , 361 N.C. 565, 565, 648 S.E.2d 841, 842 (2007). Defendant asks this Court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to review the order on the merits or, in the alternative, issue an extraordinary writ compelling entry of a civil judgment or preventing collection of any attorney's fees. We lack subject matter jurisdiction to review an appeal from an order for attorney's fees not entered as a civil judgment. Defendant will not be prejudiced unless and until a civil judgment is entered. So we decline to suspend the rules to review the order or issue either of the requested extraordinary writs. See State v. Walker , 204 N.C. App. 431, 450, 694 S.E.2d 484, 497 (2010) (declining to review an indigent defendant's appeal of a trial court's "recommendation" for attorney's fees at sentencing when no civil judgment was entered because "proceeding to rule on [the d]efendant's challenge would put us in the position of evaluating the...