State v. Anthony ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-414
No. COA18-1118-3
Filed 21 June 2022
Rowan County, Nos. 17CRS51470, 17CRS51353, 17CRS51350, 17CRS51412,
17CRS974
STATE OF NORTH CAROLINA
v.
KENNETH RUSSELL ANTHONY, Defendant.
Appeal by defendant from order entered on or about 26 April 2018 by Judge
Lori I. Hamilton in Superior Court, Rowan County. Heard in the Court of Appeals 8
May 2019, and opinion filed 20 August 2019. Remanded to this Court by order of the
North Carolina Supreme Court for further consideration in light of State v. Grady,
372 N.C. 509, 831 S.E.2d 542 (2019). Opinion filed 17 November 2020. Remanded to
this Court by order of the North Carolina Supreme Court for further consideration in
light of State v. Hilton, 378 N.C. 692, 2021-NCSC-115, State v. Strudwick, 379 N.C.
94, 2021-NCSC-127, and the General Assembly’s recent amendments to the satellite-
based monitoring program in 2021 North Carolina Laws S.L. 2021-138 (Sept. 2, 2021,
eff. 1 December 2021).
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 David W.
Andrews, for defendant.
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Opinion of the Court
STROUD, Chief Judge.
¶1 Defendant Kenneth Russell Anthony appeals a trial court order directing him
to enroll in satellite-based monitoring (“SBM”) for life following his plea to an
aggravated sex offense. We are reviewing Defendant’s case for a third time; the North
Carolina Supreme Court remanded the case to us to reconsider our holding in light
of State v. Hilton, 378 N.C. 692, 2021-NCSC-115, State v. Strudwick, 379 N.C. 94,
2021-NCSC-127, and the General Assembly’s recent amendments to the SBM
program from Session Law 2021-138, § 18. 2021 North Carolina Laws S.L. 2021-138
(Sept. 2, 2021, eff. 1 December 2021). Based upon these recent Supreme Court rulings
and the newly revised statutes applicable to this SBM order, we find the trial court
conducted an adequate hearing as to the reasonableness of SBM in Defendant’s case
and thus we reject his argument the State failed to prove lifetime SBM was
reasonable as applied to him. Because we further conclude SBM is reasonable as
applied to Defendant after our own de novo review, we affirm.
I. Background
¶2 As this is the third time this case is before us, we draw on our previous opinions
to give the factual background of the case, adding details only as necessary for this
current opinion. Our first opinion summarized the underlying facts of the case:
Defendant entered an Alford plea to attempted first-degree
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sex offense, habitual felon, assault on a female,
communicating threats, interfering with emergency
communication, first-degree kidnapping, incest, and
second-degree forcible rape. Defendant’s charges were
consolidated into a single judgment and the trial court
imposed a sentence of 216 to 320 months. On the same day
judgment was entered, Defendant submitted a motion to
dismiss the State’s petition for SBM. The trial court held a
hearing regarding SBM. The trial court denied Defendant’s
motion and entered an order directing Defendant to submit
to lifetime SBM upon his release from prison. Defendant
timely appealed the order requiring him to submit to
lifetime SBM.
State v. Anthony, 267 N.C. App. 45, 46, 831 S.E.2d 905, 906–07 (2019) (“Anthony I”).
¶3 To expand upon that summary with the facts relevant to this appeal, the plea
hearing included a summary of the evidence, to which Defendant had consented.
Specifically, the trial court heard summarized evidence on a previous felony sex
offense Defendant had committed, a previous sex offender registry violation, and the
factual basis for the two charges to which Defendant pled in this case. The trial court
later used the factual basis for these charges to conclude Defendant had committed
an aggravated offense that made him eligible for SBM.
¶4 As Anthony I indicated, the trial court also held a hearing regarding SBM, and
Defendant’s motion to dismiss the State’s petition for it, immediately after the plea
hearing. 267 N.C. App. at 46, 831 S.E.2d at 906. Defendant argued in his motion to
dismiss SBM was unconstitutional facially and as applied to him under the Fourth
Amendment to the United States Constitution and Article I, § 20 of the North
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Carolina Constitution. In the current appeal, Defendant only argues SBM violates
the Fourth Amendment as applied to him.
¶5 As part of that argument, Defendant highlighted the Fourth Amendment
requires searches to be reasonable and the United States Supreme Court in Grady v.
North Carolina, 575 U.S. 306, 135 S. Ct. 1368 (2015) (“Grady I”) (per curiam), held
SBM is a search. Thus, the trial court conducted an analysis of reasonableness of
SBM as to Defendant and found as follows:
In this matter, the defendant is already, as a
convicted sex offender, required to register as a sex
offender. Those registration requirements already impose
a burden upon the defendant and the -- the additional
burden of satellite-based monitoring would be a slight
additional burden or infringement on the defendant’s life
and liberty. That, in fact, the satellite-based monitoring
does not actually curtail the defendant’s liberty. It does not
require that he be locked up or placed in any sort of
detention facility, but rather makes his whereabouts
known for the purposes of serving greater governmental
interests and legitimate State interests such as protecting
society from, in this particular case, a twice convicted sex
offender and deterring the conduct of what is, in this case,
a twice convicted sex offender.
I will note also that studies show that sex offenders
generally have a higher recidivism rate than does the
general population of convicted felons, and for that reason
-- for that reason and others, the State does have a
legitimate State interest and a legitimate concern for the
protection of society and the deterrence of future conduct.
And for those reasons, I will -- that and the fact that I have
now made findings of fact sufficient to justify the
imposition of satellite-based monitoring will require that
the defendant enroll in the satellite-based monitoring
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program for a period of his natural life, unless monitoring
is earlier terminated pursuant to G.S. §14-208.43.
The trial court then denied Defendant’s motion to dismiss the State’s SBM petition
and imposed SBM. As Anthony I noted, Defendant then “timely appealed the order
requiring him to submit to lifetime SBM.” 267 N.C. App. at 46, 831 S.E.2d at 907.
¶6 While we explain the nature of our prior rulings in our analysis below, we
briefly review the procedural history of Defendant’s appeal. Following our opinion
reversing the SBM order in Anthony I, 267 N.C. App. at 52, 831 S.E.2d at 910, the
North Carolina Supreme Court remanded “for reconsideration in light of” State v.
Grady, 372 N.C. 509, 831 S.E.2d 542 (2019) (“Grady III”). State v. Anthony, No.
COA18-1118-2, slip op. at 2, 274 N.C. App. 356 (2020) (“Anthony II”) (unpublished),
remanded for reconsideration in 379 N.C. 668, 865 S.E.2d 851 (2021). In Anthony II,
we again reversed the trial court’s order imposing lifetime SBM. Id., slip op. at 6–7.
Our Supreme Court remanded again for reconsideration in light of Hilton, Strudwick,
and the legislative changes to the SBM program. 379 N.C. 668, 865 S.E.2d 851.
Following the latest remand, we ordered supplemental briefing from each party. We
now address Defendant’s arguments from that briefing, which again challenges the
trial court’s order imposing lifetime SBM.
II. Analysis
¶7 Defendant argues the trial court erred by imposing SBM because “[t]he State
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failed to prove that SBM would be a reasonable search as applied to” him.
Specifically, Defendant asserts that, just as our first opinion in this case determined,
“the State ‘presented no evidence as to the reasonableness of SBM,’” so “the order
imposing SBM should be reversed.” (Quoting Anthony I, 267 N.C. App. at 47, 831
S.E.2d at 907.) Defendant also contends the Supreme Court’s recent decisions in
Hilton and Strudwick do not impact his argument because they were facial challenges
in contrast to his as-applied challenge.
¶8 We first address the standard of review. Then, to aid in the understanding of
Defendant’s arguments, we provide a brief overview of the recent history of SBM
litigation and legislation as well as its impact on this case. Finally, we address his
argument directly.
A. Standard of Review
¶9 We review a trial court order to determine “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. Carter, 2022-NCCOA-262, ¶ 14 (quoting State v. Williams, 362 N.C. 628, 632, 669
S.E.2d 290, 294 (2008)) (alteration in original). “We review a trial court’s
determination that SBM is reasonable de novo.” Id. (citing State v. Gambrell, 265
N.C. App. 641, 642, 828 S.E.2d 749, 750 (2019)).
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B. Brief History of Recent SBM Litigation and Legislation
¶ 10 With that standard of review in mind, we now provide a brief history of recent
SBM litigation and how this case fits within that history. This Court’s recent opinion
in Carter provides a helpful overview of the history:
The Supreme Court of the United States held in Grady v.
North Carolina, 575 U.S. 306, 135 S. Ct. 1368, 191 L. Ed.
2d 459 (2015) (“Grady I”), that the imposition of SBM
constitutes a warrantless search under the Fourth
Amendment and necessitates an inquiry into
reasonableness under the totality of the circumstances. 575
U.S. at 310, 135 S. Ct. at 1371, 191 L. Ed. 2d at 462.
Carter, ¶ 15. Grady I served as the basis for Defendant’s motion to dismiss the State’s
SBM petition. And the trial court issued its SBM ruling with Grady I as the leading
case on the matter.
¶ 11 We also issued our first opinion in this case, Anthony I, before the Grady case
had reached the North Carolina Supreme Court again in Grady III. See Anthony II,
slip op. at 2 (noting the Supreme Court remanded the case “for reconsideration in
light of” Grady III). As Defendant highlights, we reversed the trial court order in
Anthony I because “the State presented no evidence supporting the reasonableness of
SBM as applied to Defendant.” 267 N.C. App. at 46, 831 S.E.2d at 906. In Anthony
I, we evaluated reasonableness by analyzing: “the defendant’s risk of recidivism and
the efficacy of SBM to accomplish a reduction of recidivism.” Id., 267 N.C. App. at
47, 831 S.E.2d at 907. Our lack-of-evidence holding focused on the second part of that
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analysis, the State’s failure to present any evidence on whether SBM effectively
prevents recidivism. Id., 267 N.C. App. at 52, 831 S.E.2d at 910. Notably, our ruling
was based on State v. Grady, 259 N.C. App. 664, 817 S.E.2d 18 (2018) (“Grady II”).
See Anthony I, 267 N.C. App. at 52, 831 S.E.2d at 910 (including language about being
bound by Grady II).
¶ 12 Grady III, however, changed the way courts analyze reasonableness within the
SBM context. Specifically, it replaced the two-pronged analysis used in Anthony I
with a new set of three factors “to be considered in determining whether SBM is
reasonable under the totality of the circumstances.” See Carter, ¶ 17 (noting this
Court used Grady III “for guidance as to the scope of the reasonableness analysis”
required by Grady I). Under Grady III, courts had to weigh an offender’s privacy
interests, SBM’s “‘intrusion’” into those interests, and the State’s “‘without question
legitimate’ interest in monitoring sex offenders.” Id. (quoting Grady III, 372 N.C. at
527, 534, 538, 543–44, 831 S.E.2d at 557, 561, 564, 568).
¶ 13 Thus, Defendant’s emphasis on our previous determination in Anthony I that
the State failed to present evidence supporting the reasonableness of SBM overlooks
the difference in what reasonableness meant then versus now and thus what type of
evidence the State needed to present. In Anthony I, we held that the State failed to
provide evidence of SBM’s efficacy. 267 N.C. App. at 52, 831 S.E.2d at 910. Grady
III instead explained the State had to show SBM was reasonable under the totality
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of the circumstances as measured by its three factors. Carter, ¶ 17 (citing Grady III,
372 N.C. at 527, 534, 538, 543–44, 831 S.E.2d at 557, 561, 564, 568). As explained
more below, our Supreme Court’s recent cases have made clear the State need not
prove SBM’s efficacy, only the three factors from Grady III. See Hilton, ¶ 28 (“Since
we have recognized the efficacy of SBM in assisting with the apprehension of
offenders and in deterring recidivism, there is no need for the State to prove SBM’s
efficacy on an individualized basis.”); Hilton, ¶¶ 19, 29, 32 (laying out three factors
for SBM reasonableness analysis that mirror those from Grady III). Thus, we reject
Defendant’s argument our holding on lack of evidence from Anthony I has any bearing
on our analysis of his argument in this appeal.
¶ 14 Following Grady III, the Supreme Court remanded this case to us “for
reconsideration in light of” Grady III, which led to our opinion in Anthony II. Anthony
II, slip op. at 2. In Anthony II, we again determined the State could not establish
SBM was reasonable; the State did not prove SBM would be a reasonable search in
the distant future when Defendant was released from prison—18 years at the time of
the opinion—which was the time when SBM would begin. Anthony II, slip op. at 6–
7.
¶ 15 Since our decision in Anthony II, our Supreme Court has issued two further
relevant decisions on SBM, Hilton and Strudwick. In Hilton, the Supreme Court
“narrowly construed Grady III’s holding” noting Grady III “‘left unanswered the
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question of whether the SBM program is constitutional as applied to sex offenders
who are in categories other than that of recidivists who are no longer under State
supervision.’” Carter, ¶ 18 (quoting Hilton, ¶ 2). That includes people such as
Defendant who falls under SBM’s purview because he committed an aggravated
offense. See Hilton, ¶ 21 (differentiating between the recidivist and aggravated
offense categories in the SBM context). Hilton answered the question of the
constitutionality of SBM for at least the aggravated offense category by laying out a
three-step reasonableness inquiry under the totality of the circumstances, which
resembles the inquiry from Grady III. See Hilton, ¶ 19 (“The first step of our
reasonableness inquiry under the totality of the circumstances requires . . . .”).
Specifically, courts must analyze: (1) “the legitimacy of the State’s interest,” (2) “the
scope of the privacy interests involved,” and (3) “the level of intrusion effected by the
imposition of” SBM. Hilton, ¶¶ 19, 29, 32. Hilton concluded the SBM statute is not
unconstitutional for the aggravated offender category because the SBM search is
reasonable in that context. Hilton, ¶ 36.
¶ 16 Strudwick confirmed the three-step reasonableness inquiry. See Strudwick, ¶
20 (“[W]e are bound to apply the instructions which we enunciated in Grady III—and
further developed in Hilton—in order to determine the reasonableness of the trial
court’s imposition of lifetime SBM in defendant’s case.” (citing Hilton, ¶ 18)). In
Strudwick, the Supreme Court again concluded lifetime SBM for the defendant was
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reasonable because the “legitimate and compelling government interest” outweighed
“its [SBM’s] narrow, tailored intrusion into defendant’s expectation of privacy in his
person, home, vehicle, and location.” Id., ¶ 28.
¶ 17 Strudwick included two additional relevant discussions. First, the Supreme
Court clarified the reasonableness determination takes place in the present, not the
future:
[T]he State is not tasked with the responsibility to
demonstrate the reasonableness of a search at its
effectuation in the future for which the State is bound to
apply in the present; rather, the State is tasked under a
legislative enactment presumed to be constitutional with
the responsibility to demonstrate the reasonableness of a
search at its evaluation in the present for which the State
is bound to apply for the future effectuation of a search.
Id., ¶ 13 (emphasis in original). Strudwick thus makes clear our decision in Anthony
II cannot stand because it relied on the State’s failure to prove reasonableness at the
time Defendant will be released from prison. Anthony II, slip op. at 6–7.
¶ 18 The second relevant additional aspect of Strudwick is its discussion on how to
reevaluate SBM orders as time moves forward and circumstances change. Strudwick,
¶¶ 15–17. Strudwick indicates a defendant could file a petition under Rule 60 of the
North Carolina Rules of Civil Procedure on the grounds “it is no longer equitable that
the judgment should have prospective application” or “[a]ny other reason justifying
relief from the operation of the judgment.” Id., ¶ 16 (quoting N.C. Gen. Stat. § 1-1A,
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Rule 60(b)(5)–(6) (2019)); see also id., ¶ 17 (further explaining how sub-sections (5)
and (6) could provide paths to relief). The Supreme Court also noted a defendant
could file a petition under North Carolina General Statute § 14-208.43 (2019).
Strudwick, ¶ 15.
¶ 19 Strudwick’s second option of statutory relief still exists, but subsequent
statutory changes—the ones we are to consider on remand—have slightly altered the
statute and process for defendants already ordered to enroll in SBM at the time of
the changes.1 The General Assembly rewrote § 14-208.43 to focus only on “offender[s]
who [are] ordered on or after December 1, 2021, to enroll in satellite-based
monitoring” and the means by which they can file a petition to terminate or modify
SBM after five years of enrollment. N.C. Gen. Stat. § 14-208.43(a) (eff. 1 Dec. 2021);
see also S.L. 2021-138 § 18(h) (showing changes made to § 14-208.43). For offenders
ordered to enroll in SBM before that date, such as Defendant, the new § 14-208.46
allows them to file a petition to terminate or modify the monitoring. N.C. Gen. Stat.
§ 14-208.46(a) (2021); see also S.L. 2021-138 § 18(i) (showing creation of § 14-208.46).
1 It is unclear why the Supreme Court mentioned only the old statute and not the statutory
changes since the updated statute had already been signed into law by the time Strudwick
was filed. Compare Strudwick, 2021-NCSC-127 (filed 29 October 2021) with 2021 North
Carolina Laws S.L. 2021-138 (approval date of 2 September 2021). The old law also would
not have applied to the defendant in Strudwick because it required at least a year of post-
release SBM, Strudwick, ¶ 15, and the defendant would not be released within a year. See
id. ¶¶ 3, 7 (explaining the defendant was sentenced to 30 to 43 years in prison in 2017).
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If the offender files the petition before he has been enrolled for 10 years, then “the
court shall order the petitioner to remain enrolled in the satellite-based monitoring
program for a total of 10 years”; if the offender has been enrolled for at least 10 years
already, “the court shall order the petitioner’s requirement to enroll in the satellite-
based monitoring program be terminated.” N.C. Gen. Stat. § 14-208.46(d)–(e).2
Combined with a change setting a ten-year maximum on new SBM enrollments, N.C.
Gen. Stat. § 14-208.40A(c1), see also S.L. 2021-138 § 18(d) (showing changes made to
2 The full language of (d) and (e) categorizes petitioners not enrolled “for at least 10 years”
versus enrolled “for more than 10 years”:
“(d) If the petitioner has not been enrolled in the satellite-based monitoring program for at
least 10 years, the court shall order the petitioner to remain enrolled in the satellite-based
monitoring program for a total of 10 years.
(e) If the petitioner has been enrolled in the satellite-based monitoring program for more than
10 years, the court shall order the petitioner’s requirement to enroll in the satellite-based
monitoring program be terminated.”
N.C. Gen. Stat. § 14-208.46(d)–(e).
Given (d) indicates courts should only order petitioners to remain enrolled in SBM for 10
years, not more, it appears the General Assembly intended to define two categories of
offenders: those not enrolled for at least 10 years and those enrolled for at least 10 years. See
State v. Alexander, 2022-NCSC-26, ¶ 34 (“The primary rule of construction of a statute is to
ascertain the intent of the legislature and to carry out such intention to the fullest extent.”
(quotations and citation omitted)); North Carolina Farm Bureau Mutual Insurance Company,
Inc. v. Dana, 379 N.C. 502, 2021-NCSC-161, ¶ 16 (“Legislative intent controls the meaning
of a statute.” (quotations and citation omitted)).
This Court’s recent opinion in Carter also recognizes our view without further explanation of
the wording in sub-section (e). See Carter, ¶ 22 (quoting sub-section (e) as part of a citation
supporting the following sentence, “However, during the pendency of this appeal, our
legislature amended the SBM statutes, in part, to create an avenue by which [d]efendant
may petition a superior court to terminate his monitoring after ten years of enrollment.”).
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§ 14-208.40A), the statutory system now limits SBM to ten years for all offenders.3
¶ 20 As a final piece of our review of the recent history of SBM, we address
Defendant’s argument that Hilton and Strudwick do not constrain his overall
argument because they both “primarily involved facial challenges” and he has an as-
applied challenge. In Grady III, our Supreme Court explained the distinction
between facial and as-applied challenges does not neatly apply to our SBM
jurisprudence. See 372 N.C. at 546–47, 831 S.E.2d at 569–70 (“[T]he remedy we
employ here is neither squarely facial nor as-applied.” (citing Citizens United v. FEC,
558 U.S. 310, 331, 130 S. Ct. 876 (2010))). Specifically, in Grady III, the Supreme
Court noted its ruling was as-applied in the sense that it did not apply to “all of the
program’s applications” given its limits to a specific category, but the ruling was facial
“in that it is not limited to defendant’s particular case.” Id.¶ 21 Hilton and Strudwick reflect the difficulty in separating facial from as-applied
challenges in the SBM context. The Hilton court said it was addressing the
constitutionality of the SBM program “as applied to defendants who fall outside” of
Grady III, which both uses the as-applied language but was not limited to the
3See Jamie Markham, Revisions to North Carolina’s Satellite-Based Monitoring Law, UNC
School of Government Blog (Oct. 11, 2021), https://nccriminallaw.sog.unc.edu/revisions-to-
north-carolinas-satellite-based-monitoring-law/ (“Former lifetime categories are changed to
10 years, and the abuse-of-a-minor category (‘conditional’ offenders) is capped at 10 years.”);
see also id. (explaining legislative changes in more detail).
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particular defendant before the court. Hilton, ¶¶ 18, 36. Similarly, Strudwick
involves language related to facial challenges when discussing the timing of the
reasonableness determination, Strudwick, ¶ 14, and language about applying Grady
III and Hilton’s reasonableness test “in order to determine the reasonableness of the
trial court’s imposition of lifetime SBM in defendant’s case.” Id., ¶ 20 (emphasis
added).
¶ 22 Thus, rather than trying to distinguish between facial and as-applied
challenges, our courts’ “practice is to examine searches effected by the SBM statute
categorically.” Hilton, ¶ 37 (citing Grady III, 372 N.C. at 522, 831 S.E.2d at 553). As
this Court has recently clarified, trial courts must still conduct a Fourth Amendment
reasonableness analysis, and we review that analysis de novo. Carter, ¶¶ 20–21. As
part of the analysis, reviewing courts are bound by categorical determinations made
by the Supreme Court. See, e.g., id. ¶ 27 (explaining because the defendant fit within
a certain category, this Court “must follow the Supreme Court’s holding in Hilton
that he requires continuous lifetime SBM to protect public safety”). But if the
defendant does not fit within one of the categorical determinations already made, a
reviewing court’s analysis is not constrained in the same way. See id., ¶¶ 24–25
(determining the defendant did not fit into the categories in Grady III or Hilton so
conducting its own analysis based upon the reasoning of those cases). Given this
background, we need not determine precisely whether Hilton and Strudwick made
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facial or as-applied rulings; we will follow the review framework set out in Carter.
C. Reasonableness in this Case
¶ 23 Having reviewed the recent legal changes and determined the impact on our
prior opinions in this case, we now conduct the required review as laid out above.
First, we evaluate whether the trial court properly considered if monitoring was
constitutional under the Fourth Amendment. Carter, ¶¶ 20–21. Then we conduct
our own de novo review of the trial court’s determination. Id.
1. Trial Court’s Reasonableness Inquiry
¶ 24 While Hilton proclaims “‘the SBM statute as applied to aggravated offenders
is not unconstitutional’ because the ‘search effected by the imposition of lifetime SBM
on the category of aggravated offenders is reasonable under the Fourth Amendment,’”
Carter, ¶ 18 (quoting Hilton, ¶ 36), “trial courts must continue to conduct
reasonableness hearings before ordering SBM unless a defendant waives his or her
right to a hearing or fails to object to SBM on this basis.” Id., ¶ 19 (citing State v.
Ricks, 378 N.C. 737, 2021-NCSC-116, ¶ 10). Defendant preserved his objection on
Fourth Amendment grounds via his motion to dismiss, which he also incorporated
into his argument to the trial court at the SBM hearing.
¶ 25 Turning to Carter as an example of how to review a trial court’s reasonableness
hearing, this Court found the trial court “conducted a hearing regarding the facts and
applicable law, and weighed the State’s interests against [d]efendant’s expectation of
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privacy.” Id., ¶ 20. Specifically, the trial court heard testimony concerning: the
statutory category authorizing SBM; the defendant’s risk assessment; the failure of
the defendant’s previous sex offender registration to “deter his conduct or protect
public safety”; and the defendant’s prior sex offender registry violations. Id. Because
the trial court weighed that against “the State’s interest in protecting the public from
a recidivist sex offender” and determined SBM was reasonable as applied to the
defendant, this Court concluded the trial court’s inquiry was appropriate. Id. While
Carter involved a defendant required to enroll in SBM “solely because of his status
as a recidivist” and thus focused on recidivism when evaluating the State’s interest
in public safety, id., ¶¶ 20, 24, its explanation of the type of evidence a trial court
should examine still aids our review here.
¶ 26 Here, the SBM hearing immediately followed Defendant entering his Alford
plea and being sentenced. As part of the Alford plea, Defendant consented “to the
Court hearing a summary of the evidence.” The summary of the evidence included a
previous felony sex offense, a sex offender registry violation, and the factual bases for
the two charges to which Defendant pled. The summary of the evidence thus provided
support for the trial court’s Finding Defendant committed an aggravated offense
under North Carolina General Statute § 14-208.6(1a) (eff. Dec. 1, 2017) because the
second-degree forcible rape and incest conviction included a sexual act using “force or
the threat of serious violence.” See N.C. Gen. Stat. § 14-208.6(1a) (eff. Dec. 1, 2017)
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(defining “aggravated offense” as a criminal offense that includes, inter alia,
“engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of
any age through the use of force or the threat of serious violence”). The trial court
could also use the summary of the evidence to conduct its reasonableness assessment.
¶ 27 Turning to the reasonableness assessment, the trial court heard no additional
evidence during the SBM hearing, only argument from counsel. Although the trial
court did not have the benefit of any rulings past Grady I, it is still held to the latest
standard announced in Hilton and Strudwick. See State v. Yancey, 221 N.C. App.
397, 400 & n.1, 727 S.E.2d 382, 385–86 & n.1 (2012) (applying latest standard in
Miranda jurisprudence from a case coming after an order on appeal because “new
rules of criminal procedure must be applied retroactively ‘to all cases, state or federal,
pending on direct review or not yet final’” (quoting State v. Zuniga, 336 N.C. 508, 511,
444 S.E.2d 443, 445 (1994) (in turn quoting Griffith v. Kentucky, 479 U.S. 314, 328,
107 S. Ct. 708, 716 (1987)))). Thus, the trial court had to balance: the State’s interest;
Defendant’s privacy interest; and the “level of intrusion effected by the imposition of”
SBM. Hilton, ¶¶ 19, 29, 32.
¶ 28 The trial court’s entire reasonableness analysis was:
In this matter, the defendant is already, as a
convicted sex offender, required to register as a sex
offender. Those registration requirements already impose
a burden upon the defendant and the -- the additional
burden of satellite-based monitoring would be a slight
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additional burden or infringement on the defendant’s life
and liberty. That, in fact, the satellite-based monitoring
does not actually curtail the defendant’s liberty. It does not
require that he be locked up or placed in any sort of
detention facility, but rather makes his whereabouts
known for the purposes of serving greater governmental
interests and legitimate State interests such as protecting
society from, in this particular case, a twice convicted sex
offender and deterring the conduct of what is, in this case,
a twice convicted sex offender.
I will note also that studies show that sex offenders
generally have a higher recidivism rate than does the
general population of convicted felons, and for that reason
-- for that reason and others, the State does have a
legitimate State interest and a legitimate concern for the
protection of society and the deterrence of future conduct.
And for those reasons, I will -- that and the fact that I have
now made findings of fact sufficient to justify the
imposition of satellite-based monitoring will require that
the defendant enroll in the satellite-based monitoring
program for a period of his natural life, unless monitoring
is earlier terminated pursuant to G.S. §14-208.43.
¶ 29 The trial court conducted the required reasonableness analysis. At the start,
the trial court noted Defendant’s status as a registered sex offender imposes burdens,
and that discussion addresses his privacy interest. The trial court then discussed
“the additional burden of satellite-based monitoring,” which addresses the level of
intrusion from imposing SBM. Finally, the trial court recounted the State’s interest
in imposing SBM. Thus, the trial court addressed the three factors it had to balance
as part of its reasonableness assessment. See Hilton, ¶¶ 19, 29, 32 (recounting the
factors).
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Opinion of the Court
¶ 30 A comparison to our review in Carter also reveals the adequacy of the trial
court’s reasonableness analysis. As in Carter, ¶ 20, the trial court here heard
evidence about the statutory category authorizing SBM, namely that Defendant had
committed an aggravated offense. The trial court also heard evidence, as in Carter,
id., about Defendant’s previous sex offender registration, which apparently failed to
deter his conduct in the instant offenses, as well as evidence he had previously
committed sex offender registry violations.
¶ 31 The only difference between the evidence before the trial court in Carter and
in this case is the lack of information in the record about a risk assessment of
Defendant. See id. (listing risk assessment as part of evidence before trial court). But
that difference does not change our determination the trial court conducted an
adequate reasonableness hearing. The statute concerning court-imposed SBM in
effect at the time of Defendant’s hearing did not require the trial court to order a risk
assessment if an offender had committed an aggravated offense, as Defendant did.
See N.C. Gen. Stat. § 14-208.40A(c) (eff. Dec. 1, 2017) (requiring court to order
offender who has committed an aggravated offense to enroll in lifetime SBM with no
mention of a risk assessment).4 Further, the risk assessment at most could have
4 Under the version of § 14-208.40A in effect at the time of Defendant’s trial, if the offender
did not commit an aggravated offense or fit into one of the other categories in (c), sub-section
(d) required the trial court to order a risk assessment if the offender committed an offense
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Opinion of the Court
further justified the State’s interest in SBM. But the State already had significant
other evidence supporting its interest such as the previous sex offender registration
failing to deter the instant offense and the previous sex offender registry violations.
As a result, the lack of evidence of a risk assessment of Defendant does not persuade
us the outcome here should differ from Carter.5
¶ 32 We therefore conclude the trial court held an adequate reasonableness hearing
as required. See Carter, ¶ 19 (explaining trial courts must continue to conduct
hearings on the reasonableness of SBM). Further the trial court made adequate
findings to support its conclusion SBM was reasonable as applied to Defendant.
2. De Novo Review of Reasonableness Determination
¶ 33 Since we have determined the trial court conducted an adequate
reasonableness analysis, we now review de novo its determination SBM is reasonable
as applied to Defendant. Carter, ¶ 21. As part of our de novo review, we must
involving a minor. N.C. Gen. Stat. § 14-208.40A(d) (eff. Dec. 1, 2017). Further, the current
version of § 14-208.40A(c) requires the trial court to order a risk assessment of offenders who
have committed an aggravated offense. N.C. Gen. Stat. § 14-208.40A(c) (eff. Dec. 1, 2021).
5 Defendant also later brings up the lack of risk assessment when arguing we should remand
for the trial court to conduct a risk assessment because the current version of §14-208.40A(c)
requires such assessment for all people subject to SBM. However, when making that change,
the General Assembly made clear it would only apply to SBM determinations “on or after” 1
December 2021. See S.L. 2021-138 § 18(d) (adding risk assessment provisions to § 14-
208.40A(c) as laid out above and in Footnote 4); id. § 18(p) (explaining all subsections of § 18
in the session law “appl[y] to [SBM] determinations on or after” 1 December 2021 with the
exception of (b), (i), and (o)). Defendant’s SBM determination took place on or about 26 April
2018, so the General Assembly clearly did not intend for him to benefit from the changes in
the statute. Therefore, we reject Defendant’s argument.
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Opinion of the Court
evaluate the reasonableness of SBM under the totality of the circumstances
considering: (1) the legitimacy of the State’s interest; (2) the scope of Defendant’s
privacy interests; and (3) the intrusion imposed by SBM. Hilton, ¶¶ 19, 29, 32.
a. Legitimacy of the State’s Interest
¶ 34 We start by considering the State’s interest in monitoring Defendant. Hilton
and Strudwick both recognized the dual interests served by SBM imposed on
aggravated offenders in “preventing and prosecuting future crimes committed by sex
offenders.” Strudwick, ¶ 26; see also Hilton, ¶ 25 (“assisting law enforcement agencies
in solving crimes”) and ¶ 27 (“protecting the public from aggravated offenders by
deterring recidivism”). Our courts have long recognized these dual interests are “both
legitimate and compelling,” Strudwick, ¶ 26, particularly for aggravated offenses. See
Hilton, ¶ 21 (“[T]he State’s interest in protecting the public from aggravated offenders
is paramount.”). As the Supreme Court made clear in Hilton, “after our decision in
Grady III, the three categories of offenders who require continuous lifetime SBM to
protect public safety are (1) sexually violent predators, (2) aggravated offenders, and
(3) adults convicted of statutory rape or a sex offense with a victim under the age of
thirteen (adult-child offenders).” Id., ¶ 23 (footnote omitted).
¶ 35 Here, Defendant committed an aggravated offense under N.C. Gen. Stat. § 14-
208.6(1a) (eff. Dec. 1, 2017) because the second-degree forcible rape and incest
conviction included a sexual act using “force or the threat of serious violence.” So
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Opinion of the Court
under Hilton, Defendant requires continuous lifetime SBM to protect public safety.
Hilton, ¶¶ 21, 23.
¶ 36 Defendant argues his case is distinguishable from Strudwick because his
offenses “were committed against two known victims in his home” who “identified
him to investigators” rather than against a stranger in a public space. He asserts
that, as a result, the State’s interests in using SBM to solve crimes and for deterrence
“are lessened” in his case because SBM would not solve or prevent his crimes.
¶ 37 We reject Defendant’s attempt to distinguish from our binding precedent.
First, this argument ignores Hilton, on which Strudwick relied when articulating the
State’s interest. Strudwick, ¶ 26. In Hilton, SBM was imposed in a case where the
victim in the case was also a victim in a case in which that defendant was previously
convicted. Hilton, ¶ 6. That situation resembles the situation in Defendant’s
argument here, as Defendant contends a victim who knows a perpetrator could
identify him to investigators, as opposed to a victim who is a “stranger . . . in a public
space.”
¶ 38 Further, on a broader level, Defendant misconstrues the nature of the State’s
interest. Defendant assumes the State’s interest is in preventing or prosecuting the
crime which triggered SBM (or a repeat of the same scenario), but the State’s interest
is broader. It encompasses all potential future sex crimes. See, e.g., Hilton, ¶ 21
(defining interest as “protecting children and others from sexual attacks” without
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Opinion of the Court
limitation) (quotations, citation, and alterations omitted). Thus, as long as SBM
could prevent or solve a future sex crime, regardless of the exact facts of that scenario,
the State’s interest is served. Since our Supreme Court has concluded that is true for
aggravated offenders like Defendant, we conclude the State has a legitimate interest
here.
b. Scope of Defendant’s Privacy Interest and Intrusion Imposed by SBM
¶ 39 Next we consider the scope of Defendant’s privacy interest and the intrusion
upon that interest caused by SBM. Hilton concluded an aggravated offender, such as
Defendant, “has a diminished expectation of privacy both during and after any period
of post-release supervision” because of the “numerous lifetime restrictions that
society imposes upon him,” especially via the sex offender registration requirements.
Hilton, ¶¶ 36, 31.
¶ 40 Hilton and Strudwick also explain the intrusion imposed by SBM. Hilton
determined “the imposition of lifetime SBM causes only a limited intrusion into that
diminished privacy expectation.” Hilton, ¶ 36. Specifically, Hilton noted SBM is less
invasive than criminal sanctions or civil commitment. Id., ¶¶ 33, 35. The Hilton
court also highlighted the similarities of SBM to sex offender registration and the
ability of a defendant to petition to be removed from SBM via the mechanism we
discussed above. Id., ¶ 34. Relying on these portions of Hilton, Strudwick likewise
concluded “the imposition of lifetime SBM . . . constitutes a pervasive but tempered
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Opinion of the Court
intrusion upon . . . Fourth Amendment interests.” Strudwick, ¶ 25 (citing Hilton, ¶
35).
¶ 41 Defendant argues we should not reach the same conclusion as Hilton and
Strudwick on the intrusion into his privacy interests caused by SBM because they
failed to consider “two significant privacy interests that are not diminished following
post-release supervision.” Specifically, he argues our Supreme Court’s previous
decisions failed to consider SBM “will involve a search of [his] house” and “of the
whole of [his] movements for the rest of his life.”
¶ 42 We reject Defendant’s arguments because Hilton and Strudwick considered
those privacy interests and the intrusions thereupon caused by SBM. As a general
note, Hilton specifically concluded aggravated offenders have a diminished
expectation of privacy “after any period of post-release supervision.” Hilton, ¶ 36
(emphasis added).
¶ 43 As to the search into Defendant’s home, Strudwick incudes an explanation of
how Grady III determined State v. Bowditch, 364 N.C. 335, 700 S.E.2d 1 (2010),
“sufficiently incorporate[d] . . . the invasion of a defendant’s home” into an evaluation
of offenders’ expectations of privacy and the impact of SBM thereupon. Strudwick, ¶
22 (citing Grady III, 372 N.C. at 532, 831 S.E.2d 542). While the Strudwick court
noted Grady III’s discussions of Bowditch’s limitations, it ultimately still relied on
Bowditch for the idea “that it is constitutionally permissible for the State to treat a
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Opinion of the Court
sex offender differently than a member of the general population” because of their sex
offense conviction. Strudwick, ¶ 22 (citing Hilton, ¶ 30). Given Strudwick’s reliance
on Bowditch and its emphasis on how Bowditch covered a search of offenders’ homes,
our Supreme Court has considered SBM effecting a search of the home and found
those concerns did not justify finding SBM searches unreasonable for aggravated
offenders. If that was not clear enough, Strudwick also explicitly said SBM was
reasonable given the government interest outweighed SBM’s intrusion “into
defendant’s expectation of privacy in his person, home, vehicle, and location.
Strudwick, ¶ 28 (emphasis added). As a result, we reject Defendant’s argument on
the search of his house.
¶ 44 Hilton and Strudwick also considered the search of Defendant’s movements for
the rest of his life; they scarcely could have avoided it considering such monitoring is
inherent in SBM. See Hilton, ¶ 35 (minimizing intrusion of “SBM’s collection of
information regarding physical location and movements”). Strudwick also
specifically found SBM reasonable even when considering its intrusion into a
defendant’s “expectation of privacy in his . . . location.” Strudwick, ¶ 28. Hilton
emphasized once an offender is unsupervised, “no one regularly monitors the
defendant’s location, significantly lessening the degree of intrusion.” Hilton, ¶ 35.
Building on that, Strudwick recognized using the data tracking offenders’ movements
for anything other than the State’s permissible purpose of preventing and solving
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Opinion of the Court
crimes “would present an impermissible extension of the scope of the authorized
search” that could change the calculus. See Strudwick, ¶ 23 (citing Terry v. Ohio, 392
U.S. 1, 19–20, 88 S. Ct. 1868 (1968)) (explaining the State has an “ongoing” burden
to establish the reasonableness of the search as a result of the possibility of an
impermissible extension of the scope of the search). As a result, our Supreme Court
has already weighed the search of all an offender’s movements for the rest of his life
and determined that adequate protections are in place. We therefore reject
Defendant’s argument Hilton and Strudwick failed to address the matter.
c. Reasonableness under the Totality of the Circumstances
¶ 45 Examining the reasonableness of SBM under the totality of the circumstances,
we weigh the State’s legitimate interest in “preventing and prosecuting future crimes
committed by sex offenders,” Strudwick, ¶ 26, against Defendant’s “diminished
expectation of privacy both during and after any period of post-release supervision,”
Hilton, ¶ 36, and the “limited intrusion” caused by lifetime SBM for aggravated
offenders. Id. Given Hilton and Strudwick balanced these factors for aggravated
offenders like Defendant, Hilton, ¶¶ 36–37, Strudwick, ¶ 28, and we have rejected
Defendant’s arguments trying to differentiate his case from those cases, we conclude
after de novo review that SBM is reasonable in Defendant’s case.
III. Conclusion
¶ 46 We reject Defendant’s argument the State failed to present sufficient evidence
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Opinion of the Court
to the trial court for it to make a determination of the reasonableness of SBM.
Following our de novo review, we also conclude SBM is reasonable in Defendant’s
case. Therefore, we affirm the trial court’s order imposing lifetime SBM on
Defendant. Defendant can, however, petition to terminate or modify the SBM with
the superior court in Rowan County, which would be required to terminate the
monitoring after 10 years enrolled, under the terms of § 14-208.46.
AFFIRMED.
Judge CARPENTER concurs.
Judge HAMPSON concurs in result only.