State v. Bursell ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1253
Filed: 20 March 2017
New Hanover County, No. 15 CRS 59331
STATE OF NORTH CAROLINA
v.
JOSEPH CHARLES BURSELL
Appeal by defendant from judgment entered 10 August 2016 by Judge Ebern
T. Watson III in New Hanover County Superior Court. Heard in the Court of Appeals
3 May 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Teresa M.
Postell, for the State.
Meghan Adelle Jones for defendant.
ELMORE, Judge.
Defendant Joseph Charles Bursell appeals from an order requiring him to
enroll in North Carolina’s satellite-based monitoring (SBM) program for the
remainder of his natural life. He argues that the trial court erred by imposing
lifetime SBM without conducting the required Grady hearing to determine whether
such monitoring would amount to a reasonable search under the Fourth Amendment.
We agree and vacate the SBM order without prejudice to the State’s ability to file a
subsequent application for SBM.
STATE V. BURSELL
Opinion of the Court
I. Background
On 10 August 2016, defendant pled guilty to statutory rape and indecent
liberties with a child after having sex with Anna,1 a thirteen-year-old female, when
he was twenty years old, in violation of N.C. Gen. Stat. § 14-27.7A(a) (recodified at
N.C. Gen. Stat. § 14-27.25(a) (2015) (effective Dec. 1, 2015)) and N.C. Gen. Stat. § 14-
202.1. The trial court consolidated the offenses into one judgment and imposed a
sentence in the presumptive range of 192 to 291 months in prison. The trial court
also ordered defendant to enroll in lifetime sex offender registration and in lifetime
SBM. The evidentiary basis for defendant’s plea as presented by the State tended to
show the following facts.
On 11 November 2015, Anna’s mother reported to the New Hanover County
Sheriff’s Department that Anna had snuck out of the house the night before and was
missing. Responding detectives began searching for Anna at her friends’ houses. One
friend provided Anna’s Facebook account and password, and a detective saw some
messages between her and another person, later identified as defendant. Anna’s
friends also reported that they had seen Anna and defendant meet multiple times at
a local ice skating rink. That afternoon, an employee at Wave Transit Station in
Wilmington called 9-1-1 to report that there were three young people in the area.
1 A pseudonym is used to protect the minor’s identity.
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STATE V. BURSELL
Opinion of the Court
Responding patrol officers identified two of the people as defendant and Anna, who
were then interviewed by the New Hanover County Sheriff’s Department.
During her interview, Anna reported that after she met defendant, they
started communicating online, and she snuck out of her house on the night of 10
November 2015 to be with him. Defendant attempted to rent them a hotel room, but
he only had cash, and both hotels only accepted credit cards. She and defendant then
had sex in the parking lot and talked about leaving town together, before they were
picked up at the bus station. In defendant’s interview, he admitted to having sex
with Anna and corroborated her version of the events.
After the trial court accepted defendant’s plea and rendered its sentence on the
offenses, the State applied for the imposition of lifetime registration and SBM.
Defense counsel objected to both registration and SBM. After the trial court found
defendant had committed an aggravating offense under the registration and SBM
statutes, it summarily concluded that defendant “require[s] the highest possible level
of supervision and monitoring” and ordered that he enroll in lifetime registration and
be subject to lifetime SBM. Over defendant’s objections to the registration and SBM
orders, the trial court acknowledged that his guilty plea was contingent upon
reserving his right to appeal those orders. Defendant later filed timely written notice
of appeal from both orders.
II. Analysis
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STATE V. BURSELL
Opinion of the Court
On appeal, defendant contends the trial court violated his Fourth Amendment
rights by ordering he enroll in lifetime SBM without making the required Grady
determination that such monitoring would be a reasonable search. See Grady v.
North Carolina, 575 U.S. ___, 135 S. Ct. 1368, 191 L. Ed. 2d 459 (2015). The State
concedes that the trial court erred under Grady and, therefore, its order should be
vacated and the case should be remanded for a new SBM hearing. However, as a
threshold matter, the State argues that because defendant failed to raise a Fourth
Amendment objection on Grady grounds when he objected to the imposition of SBM
at sentencing, he has waived his right to appellate review of this issue.
A. Issue Preservation
The State contends that, although defendant objected at sentencing to the
orders of registration and SBM, because he neither referenced Grady nor “raise[d]
any objection that the imposition of SBM . . . effected an unreasonable search in
violation of the Fourth Amendment,” this issue is not preserved for appellate review.
We disagree.
Generally, “[c]onstitutional errors not raised by objection at trial are deemed
waived on appeal.” State v. Edmonds, 212 N.C. App. 575, 577, 713 S.E.2d 111, 114
(2011) (citation omitted). However, where a constitutional challenge not “clearly and
directly presented to the trial court” is implicit in a party’s argument before the trial
court, it is preserved for appellate review. See State v. Murphy, 342 N.C. 813, 822,
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STATE V. BURSELL
Opinion of the Court
467 S.E.2d 428, 433 (1996) (deeming preserved a constitutional challenge “not
specifically argued” nor “clearly and directly presented to the trial court” but “implicit
in the defendant’s argument” and thus “implicitly presented to the trial court”); see
also State v. Spence, 237 N.C. App. 367, 371, 764 S.E.2d 670, 674–75 (2014) (deeming
preserved a constitutional challenge not directly presented to the trial court where
“[i]t [was] apparent from the context that the defense attorney’s objections were made
in direct response to the trial court’s ruling to remove all bystanders from the
courtroom—a decision that directly implicates defendant’s constitutional right to a
public trial”). Our Rules of Appellate Procedure similarly provide that a timely
objection, even absent an articulation of the specific grounds of that objection, will
preserve an issue for appellate review when those grounds are contextually apparent.
N.C. R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely . . . objection, . . . stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context.” (emphasis added)).
Here, the plea hearing transcript reveals that, after the State’s application of
lifetime registration and SBM, defense counsel raised the following objections:
[DEFENSE]: . . . I would object on two grounds. I know
the status of the law is pretty clear as to the register, [sic]
but for purposes of preserving any record if that were to
change, I would submit that it is insufficient under Fourth
Amendment grounds and due process grounds to place him
on the registry in its entirety. Alternatively, that the
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STATE V. BURSELL
Opinion of the Court
lifetime requirement be a little excessive in this case and
would ask you to alternatively consider putting him on the
30-year list.
As to satellite-based monitoring, I think the Court needs to
hear some additional evidence other than the [recitation] of
the facts from the attorney or from the district attorney as
to satellite-based monitoring. And since that evidentiary
issue has not been resolved, there isn’t any statements from
the victim or otherwise from law enforcement that you ought
not to order satellite-based monitoring in this case, and that
the registry alternative would satisfy those concerns. . . .
(Emphasis added.) The trial court responded:
[THE COURT]: . . . All noted exceptions made on the record
by [defense counsel] on behalf of the defendant as to his
constitutional standing, as to the standing of the current
law, and as to the future references in implication that you
have made in your arguments. All those are noted for the
record. All of those at this point in time are taken under
consideration by the Court.
(Emphasis added.) After the trial court rendered its findings to support its orders of
lifetime registration and SBM, defense counsel objected again:
[DEFENSE]: . . . [W]e will file our written notice of appeal
for the findings for the registry and the satellite-based
monitoring, but . . . . I do want to put on the record we do
note our exception and objection to both of those in open
court[.] . . .
The trial court responded:
THE COURT: It’s noted that you are making your plea
contingent upon reserving your ability to file any
actionable appeals that might be relevant to this cause.
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STATE V. BURSELL
Opinion of the Court
As in Murphy and Spence, although defendant did not clearly and directly
reference the Fourth Amendment when objecting to the State’s application for SBM,
nor specifically argue that imposing SBM without a proper Grady determination
would violate his constitutional rights, it is readily apparent from the context that
his objection was based upon the insufficiency of the State’s evidence to support an
order imposing SBM, which directly implicates defendant’s rights under Grady to a
Fourth Amendment reasonableness determination before the imposition of SBM.
Although defendant only referenced the Fourth Amendment during his objection to
the State’s lifetime registration application, he specifically argued during his
objection to the State’s SBM application that it needed to present additional evidence
beyond the factual basis for his plea before the trial court could impose SBM, and
implicit in those grounds was an argument that ordering lifetime SBM in this case
without first making a proper Grady determination would violate his Fourth
Amendment rights. Defendant explicitly argued that “the Court needs to hear some
additional evidence other than the [recitation] of the facts from the attorney or from
the district attorney as to satellite-based monitoring” and noted further that “there
isn’t any statements from the victim or otherwise from law enforcement[,]”
implicating a challenge to the sufficiency of evidence relevant for the trial court to
make findings to support Grady’s required fact-specific, totality-of-the-circumstances
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STATE V. BURSELL
Opinion of the Court
determination of the Fourth Amendment reasonableness of imposing lifetime SBM.
We thus hold that defendant’s constitutional Grady challenge was preserved.
Assuming, arguendo, this objection was inadequate to preserve a
constitutional Grady challenge for appellate review, in our discretion we would
invoke Rule 2 to relax Rule 10’s issue-preservation requirement and review its merits.
Under Rule 2 of our Rules of Appellate Procedure, “[t]o prevent manifest
injustice to a party[ ] . . . either court of the appellate division may[ ] . . . suspend or
vary the requirements or provisions of any of these rules in a case pending before
it . . . upon its own initiative[.] . . . N.C. R. App. P. 2. “Rule 2 relates to the residual
power of our appellate courts to consider, in exceptional circumstances, significant
issues of importance in the public interest or to prevent injustice which appears
manifest to the Court and only in such instances.” State v. Campbell, 369 N.C. 599,
603, 799 S.E.2d 600, 602 (2017) (citations and quotation marks omitted). “[W]hether
a particular case is one of the rare ‘instances’ appropriate for Rule 2 review—must
necessarily be made in light of the specific circumstances of individual cases and
parties, such as whether ‘substantial rights of an appellant are affected.’ ” Id.(quoting State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007)). The case-
specific decision of whether to invoke Rule 2 rests in the discretion of the panel
assigned to hear the case and is not constrained by precedent. Cf. Id. at 603, 799
S.E.2d at 603 (“[P]recedent cannot create an automatic right to review via Rule 2.”).
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STATE V. BURSELL
Opinion of the Court
In State v. Bishop, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 3, 2017) (No. 17-55),
we elected not to invoke Rule 2 to review an unpreserved constitutional Grady
argument with respect to SBM because “the law governing preservation of this issue
was settled at the time [the defendant] appeared before the trial court” and because
the defendant did not timely appeal the SBM order. Id., slip op. at 5; see also id., slip
op. at 1, 4–5 (reasoning that the defendant’s 29 June 2016 sentencing hearing
occurred “months after this Court issued” its 15 March 2016 decisions in State v. Blue,
___ N.C. App. ___, 783 S.E.2d 534 (2016), and State v. Morris, ___ N.C. App. ___, 783
S.E.2d 528 (2016)). Here, defendant’s 10 August 2016 sentencing hearing also
occurred after the laws governing the State’s burden in applying for SBM was settled.
But unlike in Bishop, defendant’s counsel here objected to SBM as unreasonable and
without evidentiary support, and defendant timely appealed the SBM order. Also,
unlike in Bishop, the State here concedes reversible error.
It is axiomatic that a constitutional right is a “substantial right.” In view of
the gravity of subjecting someone for life to a potentially unreasonable search of his
person in violation of his Fourth Amendment rights, especially when considering
defendant’s young age, the particular factual bases underlying his pleas, and the
nature of those offenses, combined with the State’s and the trial court’s failures to
follow well-established precedent in applying for and imposing SBM, and the State’s
concession of reversible Grady error, even if this argument was unpreserved, in our
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STATE V. BURSELL
Opinion of the Court
discretion we would invoke Rule 2 to relax Rule 10(a)(1)’s issue-preservation
requirement in order to prevent manifest injustice to defendant.
B. Merits
The State concedes that if defendant’s Grady error was properly preserved, the
trial court erred by not analyzing “ ‘the totality of circumstances, including the nature
and purpose of the search and the extent to which the search intrudes upon
reasonable privacy expectations’ ” before imposing SBM. Blue, ___ N.C. App. at ___,
783 S.E.2d at 527 (quoting Grady, 575 U.S. at ___, 135 S. Ct. at 1371, 191 L. Ed. 2d
at 462); Morris, ___ N.C. App. at ___, 783 S.E.2d at 529 (same). The State thus argues
that the order should be vacated and the case remanded for a new SBM hearing. See
Blue, ___ N.C. App. at ___, 783 S.E.2d at 527; Morris, ___ N.C. App. at ___, 783 S.E.2d
at 530. We agree there was Grady error and vacate the order. “Blue and Morris made
clear that a case for [SBM] is the State’s to make,” State v. Greene, ___ N.C. App. ___,
___, ___ S.E.2d ___, ___, slip op. at 6 (Oct. 3, 2017) (No. 17-311), and, importantly,
that a trial court must make the required Grady determination before imposing SBM.
In Greene, we held that where the defendant clearly and distinctly preserved
an objection to SBM on Grady grounds, the appropriate remedy when the State fails
to carry its burden of producing sufficient evidence to permit the trial court to make
its required Grady determination is not to remand the case for a new SBM hearing,
id., slip op. at 5–7, which would effectively allow the State to “ ‘try again’ by applying
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STATE V. BURSELL
Opinion of the Court
for yet another [SBM] hearing[,]” id., slip op. at 7; see also id. slip op. at 5 (reasoning
that “the nature of the State’s burden was no longer uncertain at the time of the
defendant’s [14 November 2016 SBM] hearing” (citation omitted)). Here, defendant’s
SBM objection at sentencing, while contextually adequate to preserve his right to
appellate review of his constitutional Grady argument, was not argued on Grady
grounds as clearly and distinctly as in Greene. Also, defendant’s sentencing hearing
occurred earlier than the SBM hearing in Greene. We thus hold that the proper
remedy in this case is to vacate the SBM order without prejudice to the State’s ability
to file a subsequent SBM application.
III. Conclusion
Defendant properly preserved at sentencing a constitutional objection on
Grady grounds to the imposition of SBM. But even if his objection was inadequate to
preserve a Grady challenge for appellate review, in our discretion we would invoke
Rule 2 under the particular circumstances of this case in order to review its merits.
Because no Grady hearing was held before the trial court imposed SBM, we vacate
its order without prejudice to the State’s ability to file a subsequent SBM application.
VACATED.
Judge INMAN concurs.
Judge BERGER dissents by separate opinion.
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No. COA16-1253 – State v. Bursell
BERGER, Judge, dissenting in separate opinion.
I respectfully dissent. Defendant’s appeal should be dismissed because he
failed to preserve his constitutional argument pursuant to Rule 10(a)(1), and our
appellate rules should not be suspended pursuant to Rule 2.
I. Preservation
“[A] party must have presented to the trial court a timely request, objection, or
motion, stating the specific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context.” N.C.R. App. P. 10(a)(1)
(2017). This Court has ruled “[c]onstitutional errors not raised by objection at trial
are deemed waived on appeal.” State v. Edmonds, 212 N.C. App. 575, 577, 713 S.E.2d
111, 114 (2011) (citations omitted). “[I]ssues and theories of a case not raised below
will not be considered on appeal . . . .” Westminster Homes, Inc. v. Town of Cary
Zoning Bd. of Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001). “[A] party’s
failure to properly preserve an issue for appellate review ordinarily justifies the
appellate court’s refusal to consider the issue on appeal.” Dogwood Dev. & Mgmt. Co,
LLC v. White Oak Transp. Co., 362 N.C. 191, 195-96, 657 S.E.2d 361, 364 (2008).
Defendant failed to properly preserve his objection to satellite-based
monitoring (“SBM”). While Defendant objected to placement on the sex offender
registry for life instead of the thirty-year list on constitutional grounds, the same
cannot be said of defense counsel’s argument for satellite-based monitoring. Defense
counsel stated:
STATE V. BURSELL
BERGER, J., dissenting
As to this issue, I would object on two grounds. I know the
status of the law is pretty clear as to the register, but for
purposes of preserving any record if that were to change, I
would submit that it is insufficient under Fourth
Amendment grounds and due process grounds to place
[Defendant] on the registry in its entirety. Alternatively,
that the lifetime requirement be a little excessive in this
case and would ask you to alternatively consider putting
him on the 30-year list.
(Emphasis added).
Regarding SBM, defense counsel stated to the trial court:
As to satellite-based monitoring, I think the Court needs to
hear some additional evidence other than the [recitation]
of the facts from the attorney or from the district attorney
as to satellite-based monitoring. And since that
evidentiary issue has not been resolved, there isn’t any
statements from the victim or otherwise from law
enforcement that you ought not to order satellite-based
monitoring in this case, and that the registry alternative
would satisfy those concerns. And we leave it at that, your
Honor.
(Emphasis added). Despite stating that counsel was objecting on “two grounds,” the
content of the objection failed to allege an independent constitutional ground for
appeal in regards to SBM.
The importance of issue preservation cannot be understated. Our Supreme
Court has stated “[t]he requirement expressed in Rule 10([a]) that litigants raise an
issue in the trial court before presenting it on appeal goes to the heart of the common
law tradition and our adversary system.” Dogwood, 362 N.C. at 195, 657 S.E.2d at
363 (citation, quotation marks, and brackets omitted). Further, the implication of
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STATE V. BURSELL
BERGER, J., dissenting
constitutional rights does not relax the burden upon Defendant to properly preserve
an issue for appellate review, and it is treated as any other issue in regards to Rule
10. See State v. Valentine, 357 N.C. 512, 525, 591 S.E.2d 846, 857 (2003). Defendant’s
failure to properly preserve his objection precludes review by this Court.
II. Suspension of Appellate Rules
I would decline to consider the issue raised on appeal by Defendant through
the invocation of Rule 2 because it is not necessary to “prevent manifest injustice to
a party” or “expedite decision in the public interest.” N.C.R. App. P. 2 (2017); see also
Dogwood, 362 N.C. at 196, 657 S.E.2d at 364.
“Rule 2 relates to the residual power of our appellate courts to consider, in
exceptional circumstances, significant issues of importance in the public interest, or
to prevent injustice which appears manifest to the Court and only in such instances.”
Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (emphasis
added) (citation omitted). “[W]hether an appellant has demonstrated that his matter
is the rare case meriting suspension of our appellate rules is always a discretionary
determination to be made on a case-by-case basis.” State v. Campbell, 369 N.C. 599,
603, 799 S.E.2d 600, 603 (2017) (emphasis added).
This Court has recently declined to invoke Rule 2 where Defendant failed to
properly preserve a Fourth Amendment argument in relation to SBM hearings. See
State v. Bishop, ___ N.C. App. ___, 805 S.E.2d 367 (2017). Much like the defendant
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STATE V. BURSELL
BERGER, J., dissenting
in Bishop, Defendant here “is no different from countless other defendants whose
constitutional arguments were barred on direct appeal because they were not
preserved for appellate review.” Id. at ___, 805 S.E.2d at 369-70. In other words,
Defendant’s argument on appeal is not an exceptional circumstance, standing alone,
that would justify our review. Further, the “inconsistent application of Rule 2 . . .
leads to injustice when some similarly situated litigants are permitted to benefit from
it but others are not.” Id. at ___, 805 S.E.2d at 370 (citation and quotation marks
omitted).
Before an appellate court can invoke Rule 2, we are required to look at specific
facts and circumstances that would justify suspension of the rules, including but not
limited to whether a substantial right of the appellant is affected. Campbell, 369
N.C. at 603, 799 S.E.2d at 602-03.
I do not disagree with the majority that Defendant’s participation in lifetime
SBM after his term of imprisonment may indeed affect a substantial right.
Individuals participating in the lifetime SBM program are subject to monitoring and
tracking, amounting to Fourth Amendment searches. State v. Bowditch, 364 N.C.
335, 350-51, 700 S.E.2d 1, 11 (2010).
However, it is difficult to conclude that a manifest injustice exists where the
penalty may not actually be imposed. Defendant can petition the North Carolina
Post-Release Supervision and Parole Commission to terminate the lifetime SBM
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STATE V. BURSELL
BERGER, J., dissenting
requirement. See N.C. Gen. Stat. § 14-208.43 (2017). A decision by the commission
to terminate lifetime SBM would render the impact upon Defendant’s substantial
right moot.
For the foregoing reasons, I would dismiss Defendant’s appeal and decline to
suspend the appellate rules.
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