State v. Hutchens ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 19-787
Filed: 16 June 2020
Alamance County, No. 17 CRS 50680
STATE OF NORTH CAROLINA
v.
RONNIE HUTCHENS, Defendant.
Appeal by Defendant from orders entered 12 July 2018 by Judge Paul C.
Ridgeway in Alamance County Superior Court. Heard in the Court of Appeals 28
April 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
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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,
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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.”
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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
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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
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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, ___ N.C. App. ___, ___, 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.
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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, ___
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
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the position of evaluating the validity of a judgment that might, for all we know, have
never been entered”). This portion of Defendant’s appeal is dismissed.
B. Analysis
This Court has faced no shortage of SBM appeals in the years since the
Supreme Court of the United States held in Grady v. North Carolina, 575 U.S. 306,
191 L. Ed. 2d 459 (2015) (“Grady I”), that its imposition constitutes a warrantless
search within the meaning of the Fourth Amendment and necessitates an inquiry
into reasonableness under the totality of the circumstances. 575 U.S. at 310, 191 L.
Ed. 2d at 462. Our Supreme Court has since addressed the question in Grady III,
holding that the imposition of mandatory lifetime SBM “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[.]” Grady III, 372 N.C. at 522, 831 S.E.2d at 553.
Although the Supreme Court limited the facial aspect of its holding to that singular
category of defendants, it did so after engaging in a reasonableness analysis under
the totality of the circumstances as required by the United States Supreme Court in
Grady I.
Defendant is not a recidivist, so the order requiring Defendant to submit to
lifetime SBM is not facially unconstitutional under Grady III. We must conduct a
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reasonableness analysis anew. As recognized by both Defendant and the State, 1
Grady III—the most recent decision from our Supreme Court applying a
reasonableness analysis under the Fourth Amendment to an SBM order—provides
us with guidance as to the facts and factors to be included in the totality of the
circumstances we consider. This approach is consistent with this Court’s
reconsideration of other non-recidivist SBM appeals following Grady III. See State v.
Griffin, No. COA 17-386-2, slip op. at 13, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___,
2020 WL 769356 (Feb. 18, 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. . . . Grady III offers guidance as to what factors to consider in
determining whether SBM is reasonable under the totality of the circumstances.”),
temp. stay allowed, ___ N.C. ___, 838 S.E.2d 460; State v. Gordon, No. COA 17-1077-
2, slip op. at 11-12, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (March 17, 2020)
(applying the reasonableness analysis employed in Grady III to a defendant convicted
of an aggravated offense and subject to lifetime SBM as a result), temp. stay allowed,
___ N.C. ___, 839 S.E.2d 351.
We note that, following the Supreme Court’s orders temporarily staying this
Court’s decisions in both Griffin and Gordon, the precedential value of those decisions
1 Defendant argues that “the rationale of Grady [III] requires relief for [Defendant,]” while the
State acknowledges that “[b]oth the United States Supreme Court in Grady I, and the North Carolina
Supreme Court in Grady III, have made clear that the test for constitutionality of SBM searches
‘includes’ certain factors.”
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is in limbo. While they are not controlling, neither have they been overturned. They
are instructive as the most recent published decisions of this Court addressing Grady
III’s application outside the recidivist context, particularly in light of the parties’
agreement that Grady III provides guidance in this case.
In accordance with Grady III, we must consider the totality of the
circumstances to determine “whether the warrantless, suspicionless search here is
reasonable when ‘its intrusion on the individual’s Fourth Amendment interest’ is
balanced ‘against its promotion of legitimate governmental interests.’ ” Grady III,
372 N.C. at 527, 831 S.E.2d at 557 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
646, 652-53, 132 L. Ed. 2d 564, 574 (1995)). The State bears the burden of showing
the reasonableness of the search under this test. Id. at 543, 831 S.E.2d at 568.
1. SBM’s Intrusion into Defendant’s Recognizable Privacy Interests
Defendant’s SBM order was entered at the same time as his sentence, so he
will not be subject to SBM until he serves his prison term of roughly seven-and-a-half
to fourteen-and-a-half years.2 This Court addressed a similar situation in Gordon,
after the trial court imposed lifetime SBM on a defendant—convicted, as here, of an
aggravated offense—at sentencing, with monitoring set to begin on his release from
prison roughly fifteen to twenty years later. Gordon, slip op. at 11, ___ N.C. App. at
___, ___ S.E.2d at ___. We noted that “the State’s ability to demonstrate
2 Defendant was sentenced to 110 to 192 months imprisonment, with credit for 514 days
served.
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reasonableness is hampered by a lack of knowledge concerning the unknown future
circumstances relevant to that analysis.” Id., slip op. at 12, ___ N.C. App. at ___, ___
S.E.2d at ___. We continued:
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 . . . has [not]
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.
....
The State . . . provides no indication that the monitoring
device currently in use will be the same as—or even similar
to—the device that will be employed approximately two
decades from now.
Id. at 12-13 (quoting Grady III, 372 N.C. at 527, 831 S.E.2d at 557) (additional
citations omitted). Here, as in Gordon, the State presented no evidence showing “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 12. Likewise, the State has not shown that the ET-1
monitoring device about which Officer Cox testified will be the device Defendant will
ultimately be required to wear once his lengthy prison sentence has run.
Setting aside the above concerns does not meaningfully tilt this portion of the
analysis in favor of lifetime SBM. The Supreme Court in Grady III addressed the
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intrusiveness of the ET-1, holding that its physical restrictions, coupled with its
ability to constantly track the defendant’s location, constituted “a deep, if not unique,
intrusion[.]” 372 N.C. at 538, 831 S.E.2d at 564. In Griffin, this Court considered the
constitutionality of an order imposing thirty years of SBM on a defendant who, like
Defendant here, was also subject to a term of post-release supervision. Slip op. at 16,
___ N.C. App. at ___, ___ S.E.2d at ___. We acknowledged that the defendant’s “rights
to privacy in his person, his home, and his movements . . . may be appreciably
diminished during his five-year term of post-release supervision.” Id. (emphasis
added). By that same token, however, we held that the “[d]efendant’s ‘constitutional
privacy rights, including his Fourth Amendment expectations of privacy, [will] have
been restored’ one-sixth of the way into the warrantless search at issue. [The
d]efendant, then, will enjoy appreciable, recognizable privacy interests that weigh
against the imposition of SBM for the remainder of the thirty-year term.” Id. (quoting
Grady III, 372 N.C. at 534, 831 S.E.2d at 561).
Here, while Defendant will have diminished privacy interests arising from his
offense for five years of post-release supervision, he will have no such diminished
interest for the remaining years of his natural life during which he must submit to
SBM. And while Defendant has an opportunity to seek relief from the SBM order by
petitioning the Post-Release Supervision and Parole Commission, N.C. Gen. Stat. §
14-208.43(c) (2017), such a procedure does not amount to “judicial review of the
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continued need for SBM [and] is contrary to the general understanding that judicial
oversight of searches and seizures, in the form of a warrant requirement, is an
important check on police power.” Grady III, 372 N.C. at 535, 831 S.E.2d at 562.
2. The State’s Interest in and the Efficacy of SBM
The State argued before the trial court that although Defendant was assessed
as a “low risk” by the Static-99, his propensity for violence and reoffending had
increased as he aged—and that SBM would discourage such recidivism. Defendant
was 56 years old when he was sentenced to prison for roughly seven to fourteen years
and SBM would not begin until his release. Thus, the State’s argument regarding
Defendant’s increasing propensity for violence with age assumes he will likely
continue his upward trajectory of violence even beyond age 70—his age upon release
if imprisoned for the maximum sentence—until his death. The State presented no
evidence to support such an assumption, which is contrary to the STATIC-99, an
instrument developed based upon statistical data and research regarding sex
offenders. Assuming arguendo that Defendant poses such a risk, we recognize that
the State’s interest in reducing recidivism is “without question legitimate.” Id. at
543, 831 S.E.2d at 568. And yet, the State introduced no evidence before the trial
court showing that SBM will actually prevent or reduce recidivism–either generally
or on the part of Defendant. Although counsel for the State argued at trial that
“knowing that this device is on you . . . is a deterrent[,]” it did so without introducing
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any supporting testimony or other evidence. Our Supreme Court has made clear that
such bald assertions cannot support the imposition of SBM. See id., 372 N.C. at 543-
44, 831 S.E.2d at 567-68 (“[T]he State has not presented any evidence demonstrating
that the SBM program is effective at deterring crime. Thus, the State’s deterrence
argument, like the other arguments it has advanced with respect to the efficacy issue,
fails for lack of evidentiary support. . . . We cannot simply assume that the program
serves its goals and purposes when determining whether the State’s interest
outweighs the significant burden that lifetime SBM imposes on the privacy rights of
recidivists subjected to it.” (citation omitted)); see also State v. Collins, 345 N.C. 170,
173, 478 S.E.2d 191, 193 (1996) (“[I]t is axiomatic that arguments of counsel are not
evidence.” (citations omitted)).
On appeal, the State apparently acknowledges the immateriality of the special
needs doctrine to this case, writing in its brief that if the hearing had been conducted
after Grady III, “the words ‘special needs’ would have been absent from the trial
court’s holding.” The State instead argues that “the special need” identified below
was merely a different interest served by SBM to be considered under the totality of
the circumstances, namely “the State’s stated purpose [in] ensuring Defendant stays
away from places he should not be, e.g., exclusion zones[.]” Although the State
referenced this interest, it did so only in the context of reducing recidivism:
[THE STATE]: . . . The purpose of [SBM] is not solely to
investigate crimes. As Officer Cox said, law enforcement
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cannot just sit there . . . and check all the times to see if
they can catch a sex offender on a premise to which they
cannot be.
This is not something that [law enforcement] share[s] in
probation and parole in looking at; this is something
probation and parole is doing to help ensure that, as
offenders are coming out of jail or having just been
sentenced on probation on a device, 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 either from a
previous conviction or has occurred since.
And for these reasons, I think that . . . [SBM] does satisfy
the special needs doctrine. We, as a society, have a vested
interest in seeing that no further sex crimes occur.
Consistent with this argument, the “special need” identified by the trial court in
announcing its decision to impose SBM was “to ensure that . . . there is not
recidivism.”
The State also argues that its interest in keeping Defendant out of “exclusion
zones” is another method of ensuring “public safety” and “[p]rotecting the public by
monitoring the whereabouts of aggravated sex offenders.” However, the State fails
to identify any record evidence showing that SBM of Defendant will serve such an
interest. As a registered sex offender, Defendant is statutorily excluded from schools,
nurseries, and other “place[s] intended primarily for the use, care, or supervision of
minors,” N.C. Gen. Stat. § 14-208.18(a)(1) (2017), but the State presented no evidence
showing Defendant will be inclined to violate that prohibition. Defendant committed
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a sexual offense against his adult roommate and he has no history of sexual offenses
or violence against children.
The State also argues on appeal that SBM is reasonable in this case because
in sentencing Defendant, the trial court ordered him have no contact with his victim.
The no-contact order was entered prior to the SBM hearing. The State presented no
evidence or argument to the trial court that SBM would or could monitor Defendant’s
location relative to that of his victim. Officer Cox testified that in monitoring
Defendant’s entry into prohibited areas, he would be checking “to ensure that they’re
not in a school zone or near a daycare or any other place [with] the primary purpose
of childcare[,]”and did not mention the no-contact order.
The same lack of evidence plagues the State’s argument that “offenders who
are in places they should not be[ ] are more likely to offend.”3 Our Supreme Court
has held that the bald assertions of counsel regarding the function of SBM, even those
that appeal to general common sense, are no substitute for competent evidence. Cf.
Grady III, 372 N.C. at 544-45, 831 S.E.2d at 568 (holding the State failed to show
SBM was reasonable under the totality of the circumstances “without any showing
by the State that the program furthers its interest in solving crimes that have been
committed, preventing the commission of sex crimes, or protecting the public”).
3 If anything, this suggests that this purported alternative basis for SBM is simply a
restatement of the State’s interest in combatting recidivism.
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Ultimately, the State failed to introduce evidence that SBM would be effective
to prevent Defendant from reoffending, and, while not dispositive of our analysis, the
“inability to produce evidence of the efficacy of the lifetime SBM program in
advancing any of its asserted legitimate State interests weighs heavily against a
conclusion of reasonableness here.” Id. at 543, 831 S.E.2d at 567.
3. Totality of the Circumstances
Considering the factors discussed above under the totality of the circumstances
gleaned from the record evidence before us, we hold that the State has failed to satisfy
its burden of showing that generally, or with respect to Defendant, lifetime SBM is
reasonable, as the Fourth Amendment requires for warrantless searches. While it is
true that Defendant will be subject to post-release supervision for five years, that
supervisory interest will already be served through mandatory SBM imposed as a
condition of his release. See N.C. Gen. Stat. § 15A-1368.4(b1)(6) (2017) (requiring
persons convicted of an aggravated sexual offense to submit to SBM as a mandatory
condition of post-release supervision). Thus, in addition to outlasting that
supervisory interest, the lifetime SBM order imposed here is unnecessary to satisfy
that aim for five years after Defendant’s release from prison. Defendant will enjoy
appreciable privacy interests following his term of post-release supervision, and those
interests will suffer “a deep, if not unique, intrusion[,]” Grady III, 372 N.C. at 538,
831 S.E.2d at 564, as a result of monitoring with an ET-1 bracelet—assuming that is,
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in fact, how Defendant will be monitored several years from now. As noted in Grady
III, the intrusion includes the physical imposition of a device connected to
Defendant’s body at all times to monitor Defendant’s location and travel 24 hours a
day. Id.Weighing the State’s failure to introduce any evidence showing that lifetime
SBM monitoring will advance its interest in reducing recidivism—or any other
argued interest—against Defendant’s constitutional privacy interests, we cannot
conclude that the State’s legitimate governmental concerns outweigh Defendant’s
cognizable Fourth Amendment privacy rights.
III. CONCLUSION
We eagerly await further guidance from our Supreme Court regarding the
parameters of Grady III. Until then, we must find our way using established
principles of appellate review and stare decisis. Because the State has not met its
burden of showing lifetime SBM constitutes a reasonable warrantless search based
on the record below, the trial court’s order imposing SBM is reversed.
Because no civil judgment has been entered imposing the attorney’s fees which
Defendant seeks to challenge, we dismiss that portion of Defendant’s appeal.
REVERSED IN PART; APPEAL DISMISSED IN PART.
Judges STROUD and COLLINS concur.
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