State v. Greene , 255 N.C. App. 780 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-311
Filed: 3 October 2017
Pitt County, No. 14 CRS 55014-15
STATE OF NORTH CAROLINA,
v.
LINWOOD EARL GREENE, Defendant.
Appeal by defendant from order entered 14 November 2016 by Judge Jeffery
B. Foster in Pitt County Superior Court. Heard in the Court of Appeals 6 September
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph
Finarelli, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for defendant-appellant.
ZACHARY, Judge.
Defendant appeals the Satellite-Based Monitoring Order entered after his
Alford plea to two counts of taking indecent liberties with a child. Defendant argues
on appeal that the trial court erred in ordering lifetime satellite-based monitoring in
the absence of evidence from the State that this was a reasonable search of defendant.
We agree, and conclude that this matter must be reversed.
Background
STATE V. GREENE
Opinion of the Court
Defendant Linwood Earl Greene (defendant) was indicted on 27 October 2014
and on 14 July 2015 for sex offense with a 13, 14, or 15-year old child. On 15 August
2016, defendant entered an Alford plea before the Honorable Walter H. Godwin, Jr.
to two counts of taking indecent liberties with a child. Judge Godwin then entered an
order sentencing defendant to an active term of twenty-six to forty-one months’
imprisonment and requiring that defendant register as a sex offender for the
remainder of his natural life. No order regarding satellite-based monitoring was
entered on that day.
On 14 November 2016, a satellite-based monitoring determination hearing was
held upon the State’s application before the Honorable Jeffery B. Foster. Defendant
filed a Motion to Dismiss the State’s Application for Satellite-Based Monitoring prior
to the hearing. At the satellite-based monitoring hearing, the State put forth evidence
establishing that defendant had a prior conviction of misdemeanor sexual battery, in
addition to his conviction on 15 August 2016 of two counts of taking indecent liberties
with a child. The State offered no further evidence beyond defendant’s criminal
record.
The trial court heard arguments from both parties. Referencing his motion to
dismiss, defendant challenged the constitutionality of the lifetime satellite-based
monitoring enrollment by citing Grady v. North Carolina, State v. Blue, and State v.
Morris, positing that the State had not met its burden of establishing, under a totality
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STATE V. GREENE
Opinion of the Court
of the circumstances, the reasonableness of the satellite-based monitoring program
in light of both the State’s interests and defendant’s privacy interests. The trial court
denied defendant’s motion to dismiss, reasoning “that based on the fact that this is
the second conviction that . . . defendant has accumulated of a sexual nature, . . . his
privacy interests are outweighed by the State’s interest in protecting future victims.”
Judge Foster then ordered that defendant be enrolled in the satellite-based
monitoring program for the remainder of his natural life.
On appeal, defendant argues that the trial court erred in ordering lifetime
satellite-based monitoring because the State’s evidence was insufficient to establish
that the enrollment constituted a reasonable Fourth Amendment search under Grady
v. North Carolina, State v. Blue, and State v. Morris. The State has conceded this
point. However, the State contends that it should have a chance to supplement its
evidence, upon remand from this Court, in order to support the finding that enrolling
defendant in lifetime satellite-based monitoring is a reasonable Fourth Amendment
search. Defendant argues that this Court should reverse without remand.
Accordingly, the only issue before us involves the appropriate remedy.
Discussion
The United States Supreme Court has held that North Carolina’s satellite-
based monitoring program constitutes a search for purposes of the Fourth
Amendment. Grady v. North Carolina, 575 U.S. ___, ___, 191 L. Ed. 2d 459, 462,
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STATE V. GREENE
Opinion of the Court
(2015). As such, North Carolina courts must first “examine whether the State’s
monitoring program is reasonable—when properly viewed as a search”—before
subjecting a defendant to its enrollment. Id. at ___, 191 L. Ed. 2d at 463. This
reasonableness inquiry requires the court to analyze the “totality of the
circumstances, including the nature and purpose of the search and the extent to
which the search intrudes upon reasonable privacy expectations.” Id. at ___, 191 L.Ed
2d at 462. These satellite-based monitoring proceedings, while seemingly criminal in
nature, are instead characterized as “civil regulatory” proceedings. State v. Brooks,
204 N.C. App. 193, 194, 693 S.E.2d 204, 206 (2010).
Notwithstanding the fact that satellite-based monitoring proceedings are civil
proceedings, the State argues that the civil bench proceeding standard, pursuant to
which “[a] dismissal under Rule 41(b) should be granted if the plaintiff has shown no
right to relief[,]”—is inapplicable here. Hill v. Lassiter, 135 N.C. App. 515, 517, 520
S.E.2d 797, 800 (1999). In so arguing, the State reasons that in satellite-based
monitoring proceedings, the State is not specifically referred to as “the plaintiff.” This
reasoning is far too technical and detracts from the true substance of satellite-based
monitoring proceedings. Viewed in the civil context, the State is undoubtedly the
party seeking relief in a satellite-based monitoring proceeding. See N.C. Gen. Stat. §
14-208.40A(a).
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STATE V. GREENE
Opinion of the Court
Next, the State argues that remand is proper under
State v. Blue and State v. Morris.
After Grady was decided, there was some uncertainty concerning the scope of
the State’s burden at satellite-based monitoring proceedings, and several cases came
up to this Court in the midst of that uncertainty. See State v. Blue, ___ N.C. App. ___,
783 S.E.2d 524 (2016); State v. Morris, ___ N.C. App. ___, 783 S.E.2d 528 (2016). Blue
and Morris resolved those uncertainties, however, as this Court made it abundantly
clear that “the State shall bear the burden of proving that the [satellite-based
monitoring] program is reasonable.” Blue, ___ N.C. App. at ___, 783 S.E.2d at 527;
Morris, ___ N.C. App. at ___, 783 S.E.2d at 530. But, having just resolved the
uncertainty, it was necessary for this Court to remand Blue and Morris so that the
State would have an appropriate opportunity to establish its burden. See Blue, ___
N.C. App. at ___, 783 S.E.2d at 527; State v. Morris, ___ N.C. App. at ___, 783 S.E.2d
at 529 (remand appropriate where “the trial court simply considered the case of
Grady v. North Carolina, and summarily concluded that registration and lifetime
satellite-based monitoring constitutes a reasonable search or seizure of the person
and is required by statute[]”) (internal citations and quotation marks omitted).
However, this case is entirely distinguishable, as the nature of the State’s burden was
no longer uncertain at the time of defendant’s satellite-based monitoring hearing.
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STATE V. GREENE
Opinion of the Court
Blue and Morris made clear that a case for satellite-based monitoring is the State’s
to make. The State concedes it has not done so.
Even accepting its burden, the State contends that, “[a]s with any appellate
reversal of a trial court’s determination that plaintiff’s evidence is legally sufficient,
nothing . . . precludes the Appellate Division from determining in a proper case that
plaintiff[-]appellee is nevertheless entitled to a new trial.” Harrell v. W.B. Lloyd
Constr. Co., 300 N.C. 353, 358, 266 S.E.2d 626, 630 (1980) (citations omitted)
(emphasis in the original). In Harrell, however, remand was appropriate because
“incompetent evidence ha[d] been erroneously considered by the trial judge in his
ruling on the sufficiency of plaintiff’s evidence.” Id. at 358, 266 S.E.2d at 630 (citations
omitted). The evidence was insufficient in light of the improperly considered evidence.
Id. Therefore, it was necessary to remand the case in order for the trial court to
consider the matter anew absent the erroneously admitted evidence. In contrast,
there has been no contention in this case that the State’s evidence was improperly
considered by the trial court. The conceded error instead involves the State’s evidence
having been too scant to satisfy its burden under the requirements of Grady.
Because “dismissal under Rule 41(b) is to be granted if the plaintiff has shown
no right to relief[,]” having conceded the trial court’s error, the State must likewise
concede that the proper outcome below would have been for the trial court to grant
defendant’s motion and dismiss the satellite-based monitoring proceeding against
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STATE V. GREENE
Opinion of the Court
him. 1 See Jones v. Nationwide Mut. Ins. Co., 42 N.C. App. 43, 46-47, 255 S.E.2d 617,
619 (1979). And if, as the State’s concession requires, the trial court had properly
dismissed the satellite-based monitoring application, the matter would have ended
there. The State cites no authority suggesting that it would have been permitted to
“try again” by applying for yet another satellite-based monitoring hearing against
defendant, in the hopes of this time having gathered enough evidence. Instead, the
result of the trial court’s dismissal would have been just that—a dismissal, and it is
the duty of this Court to effectuate that result.
Conclusion
We reverse the trial court’s order denying defendant’s motion to dismiss the
State’s application for satellite-based monitoring.
REVERSED.
Judges CALABRIA and MURPHY concur.
1 Both parties correctly note that defendant’s motion for a “directed verdict” should have been
more properly characterized as a “motion for involuntary dismissal” pursuant to N.C. Gen. Stat. § 1A-
1, Rule 41(b) (2017). See Hill, 135 N.C. App. at 517, 520 S.E.2d at 800 (“When a motion to dismiss
under Rule 41(b) is incorrectly designated as one for a directed verdict, it may be treated as a motion
for involuntary dismissal.”) (citation omitted).
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