State v. Perez

Citation854 S.E.2d 15
Decision Date31 December 2020
Docket NumberNo. COA19-1057,COA19-1057
Parties STATE of North Carolina v. Juan Antonio PEREZ
CourtCourt of Appeal of North Carolina (US)

Attorney General Joshua H. Stein, by Special Deputy Attorney General Tamara M. Van Pala, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel K. Shatz, for Defendant-Appellant.

McGEE, Chief Judge.

Juan Antonio Perez ("Defendant") appeals from judgments entered upon his guilty pleas to second-degree rape and forcible sex offenses, second-degree kidnapping, assault on female, assault by strangulation, obstruction of justice, and intimidating a witness. Defendant appeals by writ of certiorari the trial court's imposition of lifetime satellite-based monitoring ("SBM"). We hold that the SBM order is unconstitutional as applied to Defendant, and we reverse the trial court's order imposing lifetime SBM. Defendant also appeals by writ of certiorari the trial court's imposition of duplicative court costs and we reverse the trial court's imposition of court costs in one of the judgments against Defendant.

I. Factual and Procedural History

At trial, D.M.1 testified that she and Defendant lived together for around nine months while engaged in a dating relationship. D.M. testified that after an argument on the morning of 28 May 2016, D.M. tried to leave their apartment and asked Defendant for her car keys. Defendant "chucked" the keys at D.M.’s face, which caused a bruise on her cheek. Defendant then restrained D.M. and strangled her until she lost consciousness. After Defendant lightened his grip on her throat, D.M. screamed for help, which caused Defendant to intensify the attack by grabbing her hair and pinning her to the floor. Defendant threatened D.M. and repeatedly banged her head against the floor holding her car key against her neck.

Defendant then ordered D.M. to stay in the bedroom, and removed all of the electronics out of the room that could access the internet. Defendant went into the living room and returned hourly to check whether D.M. had moved. D.M. struggled to breath and felt "a crackling" in her neck, and asked Defendant to go to the emergency room. On the way to the hospital, Defendant told D.M. that "if she show[ed] any indication that it was him, he would kill [her] in front of everyone at the hospital." At the Alamance Regional Hospital emergency room, Defendant told the nurse D.M. was walking "up the stairs of my apartment and tripped on the steps and landed on the metal rail and fell directly on [her] neck." A CT scan

showed damage to the soft tissue of D.M.’s trachea. Defendant remained with D.M. throughout her time at the hospital. D.M. was given pain medication at the hospital and was prescribed additional pain medication. After D.M. was released from the hospital, Defendant and D.M. returned to the apartment.

Defendant awoke D.M. and gave her an additional dosage of pain medication and she returned to sleep. Several hours later, Defendant awoke D.M. and raped D.M. vaginally and anally for over five hours. After Defendant left for work on 31 May 2016, D.M. called the police and sought medical help.

Defendant was arrested and indicted for second-degree forcible rape, second-degree forcible sexual offense, second-degree kidnapping, obstruction of justice, intimidating a witness, assault by strangulation, and assault on a female. Defendant was tried during the 5 November 2018 Criminal Session of Superior Court, Alamance County.

In addition to D.M.’s testimony, the State presented evidence in the form of letters and phone call recordings that Defendant sought to persuade both D.M. and Defendant's ex-wife from testifying for the State. After four days of trial, Defendant pled guilty to all charges on 8 November 2018.

A. Sentencing Hearing on 8 November 2018

The trial court consolidated the charges of second-degree kidnapping, obstruction of justice, intimidating a witness, assault by strangulation, and assault on a female, imposing an active sentence of 24 to 41 months and entering $7,642.50 in court costs in Case No. 16 CRS 052718. The trial court consolidated the second-degree forcible rape and second-degree forcible sexual offense charges and imposed a consecutive term of 80 to 156 months with $2,062.50 in court costs in Case No. 16 CRS 052719. The trial court ordered that Defendant submit at reasonable times to warrantless searches by a probation officer, meaning "post conviction supervision for purposes specified by [the trial court] and reasonably related to post release supervision or by [the trial court]."

B. Sex Offender Registration Hearing on 13 November 2018

The trial court held a hearing on 13 November 2018 and ordered Defendant to register as a sex offender for the remainder of his natural life. At the hearing, Defendant's trial counsel gave the following oral notice of appeal:

And, Your Honor, after the trial and plea, we -- the judge did make those rulings and we left the court. My client did want, and we're still within our ten days, just to give notice of appeal. But that's just a matter I wanted to put on the record, that he's giving notice of appeal ....

The trial court also scheduled a SMB hearing.

C. SBM Hearing on 4 March 2019

The trial court held a hearing on the reasonableness of SBM under the Fourth Amendment on 4 March 2019. At the SBM hearing, the State presented testimony from Brady Cox ("Cox"), a probation and parole officer who worked with sex offenders in Alamance County. Cox testified to the operation of the SBM equipment, specifically the ET-1 tracker and bracelet, and his understanding of the SBM program. He stated that the ET-1 tracker is worn on an offender's ankle and comes with a beacon located at the offender's residence. Cox explained that the tracker communicates with satellites and cellular towers to track an offender's movements within 100 feet, is waterproof up to ten or twelve feet, and is about an inch and one-half wide, three inches tall, and two inches thick. Cox also testified that the tracker requires a total of two hours recharging time per day.

With respect to the nature of the SBM monitoring, Cox testified that the supervising officer would receive an alert if an offender enters a restricted zone, which includes schools, nurseries, and day care facilities. Upon receiving an alert that an offender was in a restricted area or that the tracking device went into error mode, Cox testified that a supervising officer may call the offender to determine what they were doing at the time of the alert or error message, or dispatch a probation officer to check on the offender in person. He also stated that some probationers on the sex offender registration are not subject to SBM monitoring.

Cox further testified that he performed a STATIC-99 assessment for Defendant, explaining that the STATIC-99 "determines the risk for reoffending of an offender based on a ten question scale." Cox testified that Defendant scored a 4 on the assessment, which ranks as an above average risk of reoffending.

In closing, the State addressed the reasonableness of the SBM search under the totality of the circumstances under Grady v. North Carolina ("Grady I "), 575 U.S. 306, 135 S.Ct. 1368, 191 L. Ed. 2d 459 (2015). The State argued that "we've proven that the factors on the hardship the monitoring represents, [Defendant] can do any, pretty much anything except go below 12 feet of water[,]" and that the monitoring program did not infringe on Defendant's right to privacy. The trial court directed the State to address "how the monitoring either helps prevent recidivism or allows the public interest in basically having that information available to law enforcement[.]" The State declined to speak on the issue, apart from citing Doe v. Bredesen , 507 F.3d 998 (6th Cir. 2007), in stating "the monitoring system has a deterrent effect on would-be reoffenders."

Defendant's trial counsel argued that while there was a public interest for safety "to prevent individuals from going out and doing it again," the imposition of SBM was not mandatory for every individual convicted of a sexual offense. Defendant's trial counsel referenced Cox's testimony that some individuals that are not subject to SBM are still monitored periodically to ensure compliance. Because Defendant had already been ordered to lifetime sex offender registration, Defendant's trial counsel argued that Defendant should not be subject to lifetime SBM.

The trial court found that the State had presented evidence related to the effect and obtrusiveness of SBM monitoring through use of an ankle monitor, and that it did not restrict the activities of the wearer, except with regard to a long period of submerging under water. The trial court further found that there was a strong interest in protecting the public from recidivism, and that the restriction of wearing an ankle monitor was not an unreasonable search and did not violate the Fourth Amendment when considered against the public interest. Accordingly, the trial imposed a requirement of lifetime SBM.

II. Analysis

Defendant asserts that the trial court erred in ordering that Defendant enroll in lifetime SBM upon his release from prison because the State failed to meet its burden of proving the imposition of lifetime SBM is a reasonable search under the Fourth Amendment. See Grady I , 575 U.S. at 310, 135 S.Ct. 1368, 191 L.Ed.2d 459.

Additionally, Defendant contends that the trial court erred by entering duplicative court costs. Defendant gave oral notice of appeal at the 13 November 2018 hearing but did not specifically raise the issue of court costs, nor did he later file a written notice of appeal.

A. Petition for Writ of Certiorari

Defendant filed a petition for a writ of certiorari on 27 January 2020 seeking review of the order imposing lifetime enrollment in SBM, as well as the imposition of alleged duplicative court costs.

Because of the civil nature of SBM hearings, a defendant must file a written notice of appeal from an...

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  • State v. Hilton
    • United States
    • North Carolina Supreme Court
    • September 24, 2021
    ...of Appeals decisions interpreting and applying Grady III ’s logic in cases involving non-recidivists. See, e.g., State v. Perez , 275 N.C.App. 860, 854 S.E.2d 15, 21 (2020) ("Since our Supreme Court's holding in Grady III , this Court has applied the reasonableness analysis under the totali......
  • State v. Perkins
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    • North Carolina Court of Appeals
    • December 6, 2022
    ... ... (2020); State v. Mangum , 270 N.C.App. 327, 333-34, ... 840 S.E.2d 862, 867-68 (2020); State v. Thompson , ... 273 N.C.App. 686, 689, 852 S.E.2d 365, 369 (2020); State ... v. Hutchens , 272 N.C.App. 156, 159-60, 846 S.E.2d 306, ... 310 (2020); State v. Perez , 275 N.C.App. 860, ... 864-65, 854 S.E.2d 15, 20 (2020); State v. Lopez , ... 264 N.C.App. 496, 503-04, 826 S.E.2d 498, 503-04 (2019); ... State v. Harding , 258 N.C.App. 306, 320, 813 S.E.2d ... 254, 265 (2018); State v. Lindsey , 260 N.C.App. 640, ... 642, 818 S.E.2d 344, 346 (2018); ... ...
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    ... ... (2020); State v. Mangum , 270 N.C.App. 327, 333-34, ... 840 S.E.2d 862, 867-68 (2020); State v. Thompson , ... 273 N.C.App. 686, 689, 852 S.E.2d 365, 369 (2020); State ... v. Hutchens , 272 N.C.App. 156, 159-60, 846 S.E.2d 306, ... 310 (2020); ... State v. Perez , 275 N.C.App. 860, 864-65, 854 S.E.2d ... 15, 20 (2020); State v. Lopez , 264 N.C.App. 496, ... 503-04, 826 S.E.2d 498, 503-04 (2019); State v ... Harding , 258 N.C.App. 306, 320, 813 S.E.2d 254, 265 ... (2018); State v. Lindsey , 260 N.C.App. 640, 642, 818 ... S.E.2d 344, 346 (2018); ... ...
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