State v. Strudwick

• Decision Date: 06 October 2020
• Docket Number: No. COA18-794-2,COA18-794-2
• Citation: 849 S.E.2d 891
• Parties: STATE of North Carolina v. Tenedrick STRUDWICK
• Court: North Carolina Court of Appeals

849 S.E.2d 891

STATE of North Carolina

v.Tenedrick STRUDWICK

No. COA18-794-2

Court of Appeals of North Carolina.

Filed: October 6, 2020

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

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant.

STROUD, Judge.

Defendant Tenedrick Strudwick timely appealed from the trial court's order requiring him to enroll in lifetime satellite-based monitoring following his future release from prison. On 6 August 2019, this Court filed an unpublished opinion reversing the trial court's civil order mandating lifetime satellite-based monitoring. See State v. Strudwick , 266 N.C.App. 619, 830 S.E.2d 703 (2019) (unpublished). The State subsequently filed a petition for discretionary review with the North Carolina Supreme Court. On 30 October 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 reach the same result as our previous opinion and reverse the trial court's order mandating lifetime satellite-based monitoring.

I. Background

We described the factual background of this case in our prior opinion:

Defendant pleaded guilty to first degree rape, first degree kidnapping, and robbery with a dangerous weapon and was sentenced to 30 years minimum to 43 years maximum in prison. At a later hearing on SBM, the State presented Shakira Jones, a probation officer with the Department of Public Safety for the sex offender population. Ms. Jones testified about SBM and the Static-99 form which is used to "determine the offender's risk level ... to determine whether they're a risk for future offenses or to re-offend." Ms. Jones filled out a Static-99 form for defendant, and he had a total score of 3, which placed him in the "Average Risk" category. At the conclusion of the State's evidence, the trial court denied defendant's motion to dismiss the SBM proceedings and subsequently ordered defendant to submit to lifetime SBM. Defendant timely appealed.

State v. Strudwick , ––– N.C. App. ––––, 830 S.E.2d 703 (alteration in original).

The procedural situation in Grady III was quite different from this case. Mr. Grady was sentenced to imprisonment in 2006, served his sentence, and "was unconditionally released from prison on 25 January 2009 and received certification that his rights of citizenship were ‘BY LAW AUTOMATICALLY RESTORED.’ " Grady III , 372 N.C. at 511, 831 S.E.2d at 547. In March 2010, Mr. Grady was notified that a hearing was scheduled to determine whether he should be subject to SBM:

the North Carolina Department of Correction (DOC) sent a letter to Grady informing him that it had made an initial determination that he met the statutory criteria of a "recidivist," which would require his enrollment in the SBM program, and giving him notice to appear at a hearing at which the court would determine his eligibility for SBM. Before a hearing was held, he pleaded guilty on 27 October 2010 to failure to maintain his address with the sex offender registry and was sentenced to twenty-four to twenty-nine months in prison. He served that term of imprisonment and was again unconditionally released on 24 August 2012. A new hearing was scheduled for 14 May 2013 in the Superior Court in New Hanover County to determine if Grady should be required to enroll in the State's SBM program.

Id. at 512, 831 S.E.2d at 547. Mr. Grady "filed a motion to deny the SBM application and dismiss the proceeding" based in part upon his contention that "the imposition of the monitoring upon Defendant violates his rights to be free from unreasonable search and seizure as guaranteed by the Fourth Amendment of the United States Constitution and Article I, Section 20 of the North Carolina Constitution." Id. at 515-16, 831 S.E.2d at 549. The trial court denied Mr. Grady's motion, found he was a "recidivist" as defined by statute, and ordered him to enroll in SBM for the rest of his life. Id. at 516 831 S.E.2d at 550.

After extended appellate proceedings, the Supreme Court ultimately held SBM was an unconstitutional search as applied to Mr. Grady and others in the same category as Mr. Grady. Grady III limited its holding to a particular group of defendants, "recidivists" as defined by North Carolina General Statute § 14-208.6(2b) :

In light of our analysis of the program and the applicable law, we conclude that the State's SBM program is unconstitutional in its application to all individuals in the same category as defendant—specifically, individuals who are subject to mandatory lifetime SBM based solely on their status as a statutorily defined "recidivist" who have completed their prison sentences and are no longer supervised by the State through probation, parole, or post-release supervision. We decline to address the application of SBM beyond this class of individuals.

Id. at 522, 831 S.E.2d at 553 (footnote omitted).

II. Analysis

Although Grady III's holding does not directly apply to Defendant in this case, who was not classified as a "recidivist," the analysis of the issue described in Grady III does apply to this case. See State v. Griffin , ––– N.C. App. ––––, ––––, 840 S.E.2d 267, 273 (2020) ("Although Grady III does not compel the result we must reach in this case, its reasonableness analysis does provide us with a roadmap to get there. As conceded by the State at oral argument, Grady III offers guidance as to what factors to consider in determining whether SBM is reasonable under the totality of the circumstances. We thus resolve this appeal by reviewing Defendant's privacy interests and the nature of SBM's intrusion into them before balancing those factors against the State's interests in monitoring Defendant and the effectiveness of SBM in addressing those concerns. (citing Grady III , 372 N.C. at 527, 534, 538, 831 S.E.2d at 557, 561, 564.")).

And although Mr. Grady had already completed his sentence when his SBM hearing was held, the order directing Defendant to enroll in SBM will not take effect until after Defendant is released from prison, when he will be in essentially the same position as Mr. Grady. If he is subject to any sort of post-release supervision, his privacy interests will be reduced during that supervision. But once he has served the sentence and completed any post-release supervision, his privacy interests will be the same as Mr. Grady's. See Grady III , 372 N.C. at 531, 831 S.E.2d at 559-60 ("This is especially true with respect to unsupervised individuals like defendant who, unlike probationers and parolees, are not on the ‘continuum of possible [criminal] punishments’ and have no ongoing relationship with the State." (alteration in original)). The primary factual difference between Mr. Grady and Defendant is that Mr. Grady's SBM was to begin immediately, id. at 520, 831 S.E.2d at 552, and Defendant's SBM will not begin until thirty to forty-three years in the future.

In addition, this case is one of several considered by this Court after Grady III addressing a similar issue for defendants sentenced for a crime and simultaneously, or soon after sentencing, ordered to enroll in SBM either for a term of years or for life, with the SBM to begin only after completion of the imprisonment. This Court has already addressed this issue, and we are bound to follow those precedents. E.g. , State v. Gordon , ––– N.C. App. ––––, 840 S.E.2d 907 (2020).

We are unable to distinguish the factual situation of this case, where Defendant is not a recidivist and will not be released from prison for thirty to forty-three years, from State v. Gordon , ––– N.C. App. ––––, 840 S.E.2d 907,¹ where the defendant was not eligible to be released from prison for fifteen to twenty years. In Gordon , the defendant pled guilty to "statutory rape, second-degree rape, taking indecent liberties with a child, assault by strangulation, and first-degree kidnapping" in February 2017. Id. at ––––, 840 S.E.2d at 909. The trial court in Gordon determined the defendant was convicted of an " ‘aggravated offense’ under N.C. Gen. Stat. § 14-208.6(1A)" and ordered him to enroll in SBM "for the remainder of his natural life upon his release from prison." Id. at –––– 840 S.E.2d at 909.

In Gordon , this Court fully analyzed the effect of Grady III on its reconsideration. Id. at ––––, 840 S.E.2d at 912-14. Although the defendant in Gordon and Defendant in this case were not convicted of the same offenses and there are factual differences in their situations, none of those differences change the legal analysis under Grady III . See Grady III , 372 N.C. at 522, 831 S.E.2d at 553. One of the factual differences is that defendant's term of SBM will not begin for at least thirty years, while Gordon's could begin in only fifteen years. State v. Gordon , ––– N.C. App. at ––––, 840 S.E.2d at 911. This difference only reduces the State's ability to "demonstrate reasonableness" of the SBM since it

is hampered by a lack of knowledge concerning the unknown future circumstances relevant to that analysis. For instance, we are unable to consider "the extent to which the search intrudes upon reasonable privacy expectations" because the search will not occur until Defendant has served his active sentence. The State makes no attempt to report the level of intrusion as to the information revealed under the satellite-based monitoring program, nor has it established that the nature and extent of the monitoring that is currently administered, and upon which the present order is based, will remain unchanged by the time that Defendant is released from prison.

Id. at ––––, 840 S.E.2d at 912–13 (citation omitted).

In Gordon , prior to its remand by the North Carolina Supreme Court, the concurring judge noted that

this case is

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