State v. Willis
| Decision Date | 05 May 2020 |
| Docket Number | No. COA18-507,COA18-507 |
| Citation | 271 N.C.App. 381,841 S.E.2d 611 (Table) |
| Parties | STATE of North Carolina v. James Alton WILLIS, Jr., Defendant. |
| Court | North Carolina Court of Appeals |
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 Wyatt Orsbon, for Defendant-Appellant.
James Alton Willis, Jr. ("Defendant"), appeals from the trial court's order requiring him to submit to satellite-based monitoring ("SBM") for the remainder of his natural life. We reverse the trial court's order.
Defendant was convicted on 28 January 2008 of one count of indecent liberties with a child. Subsequently, on 10 November 2014, Defendant was indicted by a grand jury on one count of indecent liberties with a child pursuant to N.C.G.S. § 14-202.1(a)(1) and one count of a lewd and lascivious act upon a child under N.C.G.S. § 14-202.1(a)(2).
Defendant pleaded guilty to one count of indecent liberties with a child on 8 January 2015, and the remaining charge was dismissed. Defendant was sentenced to a term of 21 to 35 months imprisonment.
A "bring-back" hearing was held on 11 October 2017, pursuant to N.C.G.S. § 14-208.40B for a determination regarding whether Defendant was required to enroll in SBM. At the hearing, the State presented evidence that Defendant qualified as a recidivist and offered testimony from Officer Keela Haynes ("Officer Haynes"), a probation/parole officer specializing in sex offender cases. The trial court took judicial notice of several cases from other jurisdictions before ruling from the bench:
[n]ow, pursuant to the evidence that has been presented at this hearing today, the arguments of counsel, the [c]ourt finds that based on the totality of the circumstances analysis that satellite based monitoring of the defendant is a reasonable search in this case. The [c]ourt has considered the defendant's argument that satellite based monitoring is unconstitutional. The [c]ourt has considered all of the defendant's arguments today and the [c]ourt rejects those arguments.
Defendant's counsel objected, stating:
[s]pecifically, Your Honor, just to put on the record I feel that this really wasn't an evidentiary hearing where the State provided evidence based on the reasonableness of this. We feel like that's required. Certainly not trying to step on Your Honor's toes, but we do feel like that certain evidence that is required for the State to meet their burden of reasonableness has not been provided here, and therefore we give notice of appeal.
(Emphasis added).
The trial court entered an order on 6 March 2018 (the "SBM order") requiring Defendant to enroll in SBM for the remainder of his natural life. The order established that "Defendant ... met the criteria for a recidivist as defined in N.C.G.S. § 14-208.6(2b) [,]1 " summarized the testimony of Officer Haynes in regard to her training, the restrictions of an enrollee to enter certain "exclusion zones," and her concern that Defendant may re-offend, and discussed two out-of-state cases dealing with SBM. The trial court concluded as a matter of law that "[p]ursuant to the evidence presented at this hearing, the arguments of counsel, and the pertinent law on this issue, the [c]ourt finds that based upon the totality of the circumstances analysis, SBM of Defendant is a reasonable search." Defendant appeals.
In reviewing an SBM order, "we are ‘strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence ... and whether those factual findings in turn support the judge's ultimate conclusions of law.’ " State v. Thomas , 225 N.C. App. 631, 632, 741 S.E.2d 384, 386 (2013) (quoting State v. Williams , 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) ). We review de novo the trial court's conclusions of law, including whether SBM constitutes a reasonable search under the Fourth Amendment. State v. Martin , 223 N.C. App. 507, 508, 735 S.E.2d 238, 238 (2012).
Defendant contends that the trial court erred by ordering SBM without sufficient evidence from the State meeting its burden of proving that the search was reasonable under the Fourth Amendment. We agree.
In State v. Grady , 372 N.C. 509, 831 S.E.2d 542 (2019) ("Grady III "), the North Carolina Supreme Court modified and affirmed this Court's opinion in State v. Grady , ––– N.C. App. ––––, 817 S.E.2d 18 (2018) ("Grady II "). Grady III held that as to the specific and limited class of offenders—registered sex offenders subject to SBM solely on the basis of recidivism who are otherwise not under State supervision—the imposition of lifetime SBM was an unreasonable warrantless search in violation of the Fourth Amendment. Grady III , 372 N.C. at 547, 831 S.E.2d at 570 ().
This Court recently addressed the application of Grady III in the context of a non-recidivist offender subject to post-release supervision in State v. Griffin , ––– N.C. App. ––––, No. COA17-386-2, 2020 WL 769356 (Feb. 18, 2020) ("Griffin II ").2 Mr. Griffin entered an Alford plea in 2004 to a first-degree sex offense with a child who lived in his household. Id. at *1. He was released from prison eleven years later on a five-year term of post-release supervision. Id. at *1-2. The trial court held a "bring-back" hearing in 2016 to determine if Mr. Griffin was eligible for SBM under N.C.G.S. § 14-208.40(a)(2).3 Id. at *2. During the hearing, the State offered evidence that Mr. Griffin had presented a "moderate-low" risk of recidivism on his STATIC-99 assessment. Id. at *2. In addition, Mr. Griffin's probation officer testified that, although Mr. Griffin had not completed the required sex offender treatment, he had not committed any new criminal offenses or violated the terms of his probation since being released from prison. Id. at *2. The probation officer "described the physical characteristics and operation of the SBM device[;]" however, "[t]he 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 [the] [d]efendant." Id. at *2. The trial court determined that the State's evidence coupled with the fact that Mr. Griffin had held a "position of trust" with the victim was sufficient to warrant the imposition of SBM for a period of thirty years and entered an SBM order to that effect. Id. at *2. Mr. Griffin appealed.
In order "to discern the scope, effect, and import of Grady III [,]" Griffin II provided a thorough discussion of both Grady II and Grady III . Id. at *2. This Court explained that because Mr. Griffin was on post-release supervision, was convicted of an offense involving the physical, mental, or sexual abuse of a minor, and was sentenced to SBM for a thirty-year period, he fell outside of the facial aspect of Grady III ’s holding. Id. at *5. However, we held that "[a]lthough 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." Id. at *6. We explained that the same factors were considered by our appellate courts in both Grady II and Grady III to determine whether, under the totality of the circumstances, SBM was a reasonable warrantless search of Mr. Grady, namely:
(1) the nature of the defendant's legitimate privacy interests in light of his status as a registered sex offender; (2) the intrusive qualities of SBM into the defendant's privacy interests; and (3) the State's legitimate interests in conducting SBM monitoring and the effectiveness of SBM in addressing those interests.
Id. at *3 (internal citations omitted). Accordingly, we applied the factors utilized by this Court in Grady II and the Supreme Court in Grady III to the facts of Mr. Griffin's appeal. Id. at *6 (citing Grady III , 372 N.C. at 527, 534, 538, 831 S.E.2d at 557, 561, 564 ).
First, we addressed Mr. Griffin's privacy interest. Id. at *6. We explained that, by virtue of being on the sex offender registry and being subject to post-release supervision, Mr. Griffin has "a diminished expectation of privacy in some respects." Id. at *6. However, "[h]is appearance on the sex offender registry does not mean ... that his rights to privacy in his person, his home, and his movements are forever forfeit." Id. at *6 (citing Grady III , 372 N.C. at 534, 831 S.E.2d at 561 ). We noted that although those "rights may be appreciably diminished during his five-year term of post-release supervision, that is not true for the remaining 25 years of SBM imposed[.]" Id. at *6. This Court then wrote that, following his five-year term, Mr. Griffin "will enjoy appreciable, recognizable privacy interests that weigh against the imposition of SBM for the remainder of [his] thirty-year term." Id. at *6.
Second, we addressed the intrusive nature of SBM. Id. at *6. Noting that "the physical qualities of the monitoring device used ... appear largely similar to those in Grady III , and thus meaningfully conflict with [Mr. Griffin's] privacy rights[,]" id. at *7, we also explained that, like Mr. Grady, "SBM's ability to track [Mr. Griffin's] location is ‘uniquely intrusive,’ and thus weighs against the imposition of SBM." Id. at *7 (quoting Grady III , 372 N.C. at 537, 831 S.E.2d at 564 (internal citation omitted)). We then distinguished the lifetime SBM imposed on Mr. Grady from the thirty-year term of SBM imposed on Mr. Griffin, explaining that, "[i]n this aspect, the intrusion...
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