State v. Lindsey , 260 N.C. App. 640 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-676
Filed: 7 August 2018
Craven County, No. 09CRS51204
STATE OF NORTH CAROLINA
v.
WILLIAM BURNETT LINDSEY, Defendant.
Appeal by defendant from order entered on or about 10 November 2016 by
Judge Charles H. Henry in Superior Court, Craven County. Heard in the Court of
Appeals 29 November 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph
Finarelli, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
Orsbon, for defendant-appellant.
STROUD, Judge.
Defendant appeals an order requiring him to enroll in North Carolina’s sex
offender satellite-based monitoring (“SBM”) program. Because defendant raised no
objection under the Fourth Amendment at the SBM hearing and the issue was not
implicitly addressed or ruled upon by the trial court, it was not preserved for
appellate review. In our discretion, we decline to grant review under Rule 2 since the
law was well-established at the time of the hearing and the State was not on notice
of the need to address Grady issues due to defendant’s failure to raise any
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Opinion of the Court
constitutional argument. Since defendant raised no other argument about the SBM
order, we affirm.
I. Background
In 2009, defendant pled guilty to taking indecent liberties with a child. See
State v. Lindsey, ___ N.C. App. ___, 789 S.E.2d 568, at *2 (June 21, 2016) (COA15-
1251) (unpublished) (“Lindsey I”). Defendant was ordered to enroll in SBM, id. at *3,
and “[d]efendant appeal[ed] from [the] order of the trial court requiring him to enroll
in North Carolina’s sex offender satellite-based monitoring (‘SBM’) program.” Id. at
*1. “Because the trial court failed to make the statutorily-required finding that
defendant ‘requires the highest possible level of supervision and monitoring[,]’ N.C.
Gen. Stat. § 15A-208.40B(c) (2015),” this Court remanded for further proceedings. Id.
at *1-2. In Lindsey I, defendant’s arguments and this Court’s ruling were based only
upon the application of the SBM statute itself. See Lindsey I, ___ N.C. App. ___, 789
S.E.2d 568. Defendant raised no constitutional arguments in Lindsey I, nor did this
Court’s opinion address any constitutional issues. See id. This case was not
remanded for what has now become known as a “Grady hearing” but only for a new
hearing to address the statutory issues. See id.
On 30 March 2015, the United States Supreme Court issued its per curiam
ruling in Grady v. North Carolina, holding that SBM is a search under the Fourth
Amendment and therefore is subject to the constitutional requirements of the Fourth
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Amendment. See Grady, 135 S. Ct. 1368, 1371, 191 L. Ed. 2d 459 (2015) (per curiam).
In Grady, the defendant had argued that SBM “would violate his Fourth Amendment
right to be free from unreasonable search and seizures.” Id., 135 S.Ct. at 1369, 191
L. E. 2d at 460. Our Court stated,
The United States Supreme Court held that despite
its civil nature, North Carolina’s SBM program “effects a
Fourth Amendment search.” Grady v. North Carolina, 575
U.S. ___, ___, 191 L. Ed. 2d 459, 462 (2015) (per curiam).
However, since “[t]he Fourth Amendment prohibits only
unreasonable searches[,]” the Supreme Court remanded
the case for North Carolina courts to “examine whether the
State's monitoring program is reasonable—when properly
viewed as a search . . . . ” Id. at ___,191 L. Ed. 2d at 463.
State v. Grady, ___ N.C. App. ___, ___ S.E.2d ___, *2-3 (May 15, 2018) (COA17-12).
Defendant’s hearing on remand, as directed by Lindsey I, was held on 8
November 2016, over a year after the United States Supreme Court’s ruling in Grady.
See generally Grady, 135 S. Ct. 1368, 191 L. Ed. 2d 459. At the hearing on remand,
defendant raised no constitutional objection to SBM based upon the Fourth
Amendment or Grady. On or about 10 November 2016, the trial court again ordered
defendant to enroll in SBM. Defendant appeals.
II. Petition for Writ of Certiorari
Although defendant timely filed a written notice of appeal after entry of the
SBM order, he failed to specifically designate this Court as the court he was appealing
to in the notice. Because of the defect in his notice of appeal, defendant filed a petition
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Opinion of the Court
for certiorari with this Court due to his failure to designate this Court as the court he
was appealing to in his notice of appeal. The State has claimed no prejudice on appeal
due to defendant’s failure to note he was appealing to this Court. In our discretion,
we grant defendant’s petition for certiorari to ensure his appeal is properly before us.
See generally Luther v. Seawell, 191 N.C. App. 139, 142, 662 S.E.2d 1, 3 (2008) (“This
Court does have the authority pursuant to North Carolina Rule of Appellate
Procedure 21(a)(1) to treat the purported appeal as a petition for writ of certiorari
and grant it in our discretion.” (citations and quotation marks omitted)).
III. Waiver
Defendant raises only one issue on appeal and argues that “[t]he [S]tate failed
to meet its burden of proving that imposing SBM on Mr. Lindsey is reasonable
under the Fourth Amendment.” The State contends that defendant has waived his
Fourth Amendment argument by his failure to raise the issue. The State, citing State
v. Stroessenreuther, ___ N.C. App. ___, ___793 S.E.2d 734 (2016), argues that it has
the burden to establish the reasonableness of SBM under the Fourth Amendment
only if the defendant raises the issue at the hearing. Stroessenreuther states “[t]rial
courts can (and must) consider a Fourth Amendment challenge to satellite-based
monitoring when a defendant raises it.” Id. at ___, 793 S.E.2d at 735 (emphasis
added). The State contends that “[i]f this statement in Stroessenreuther is to have
any meaning or application at all, then unless the defendant argues that SBM
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Opinion of the Court
enrollment violates his Fourth Amendment rights to be free from unreasonable
searches, the trial court need not conduct a reasonableness inquiry.” Although
“this statement in Stroessenreuther” was not the holding, it is a correct statement of
the law. See id. Constitutional issues must be asserted by the defendant in other
contexts, and this rule has equal application in a SBM hearing. See e.g., State v.
Valentine, 357 N.C. 512, 525, 591 S.E.2d 846, 857 (2003) (“Defendant’s argument is
based upon his Fifth Amendment right to silence and his Sixth Amendment right to
counsel. However, defendant did not raise these constitutional concerns before
reaching this Court. The failure to raise a constitutional issue before the trial court
bars appellate review. Based upon our long-established law, defendant has waived
this issue, and he is barred from raising it on appellate review before this Court.”
(citations omitted)).
Defendant argues in his reply brief that the Fourth Amendment was implicitly
raised, contending,
“[t]he rule that constitutional questions must be raised
first in the trial court is based upon the reasoning that the
trial court should, in the first instance, “pass[] on” the
issue.” State v. Kirkwood, 229 N.C. App. 656, 665, 747
S.E.2d 730, 737 (quoting State v. Tirado, 358 N.C. 551, 571,
599 S.E.2d 515, 529 (2004)), appeal dismissed, 367 N.C.
277, 752 S.E.2d 487 (2013). Consequently, when the record
shows that “the trial court addressed and ruled upon” a
constitutional issue, the “issue is properly before this
Court” for review, despite any possible default by the
appellant in preserving the issue. Id. at 665–66, 747
S.E.2d at 737; accord In re Hall, 238 N.C. App. 322, 329
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n.2, 768 S.E.2d 39, 44 n.2 (2014) (“[S]ince the record
supports a determination that the trial court reviewed and
denied petitioner’s ex post facto argument [regarding sex
offender registration], we will review petitioner’s
contentions on appeal.”); State v. Woodruff, No. COA13–
812, 2014 WL 218397, at *1 (N.C. Ct. App. Jan. 21, 2014)
(unpublished) (reviewing double jeopardy claim, despite
defendant’s failure to “explicit[ly] mention” issue at trial,
when “trial court possibly addressed and ruled upon”
issue). Here, as in Kirkwood, Hall, and Woodruff, Mr.
Lindsey’s Grady argument is “properly before this Court”
for review because the trial court, consistent with the
fundamental goal of Rule 10, “addressed and ruled upon”
the issue in the first instance. Kirkwood, 229 N.C. App. at
665–66, 747 S.E.2d at 737. The state’s waiver argument
should be rejected.
In addition, defendant has requested we invoke Rule 2 of the Rules of Appellate
Procedure to consider his constitutional issue.
This Court addressed a similar situation recently in State v. Bursell, ___ N.C.
App. ___, ___, 813 S.E.2d 463 (2018). In Bursell, on 10 August 2016, the trial court
ordered defendant to enroll in lifetime SBM following his guilty plea and sentencing
for statutory rape and indecent liberties. ___ N.C. App. at ___, 813 S.E.2d at 464. On
appeal, the defendant raised a constitutional argument based upon the Fourth
amendment and Grady. Id. at ___, 813 S.E.2d at 465. The State contended that the
constitutional issue was not preserved for review because “although defendant
objected at sentencing to the orders of registration and SBM, . . . he neither referenced
Grady nor “raised any objection that the imposition of SBM effected an unreasonable
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search in violation of the Fourth Amendment[.]” Id. at ___, 813 S.E.2d at 465 (ellipses
and brackets omitted).
The Bursell Court noted that
generally, constitutional errors not raised by
objection at trial are deemed waived on appeal. 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.
Id. at ___ 813 S.E.2d at 465 (citations, quotation marks, and brackets omitted). After
reviewing the transcript of the SBM hearing, this Court determined that it was
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.
Id. at ___ 813 S.E.2d at 467.
We have also reviewed the transcript of the SBM hearing in this case, as
compared to the portions of the transcript noted in Bursell, and even considering this
case in accord with Bursell, here defendant simply did not raise any constitutional
objection, either explicity or implicitly. In Bursell, the SBM hearing was the initial
hearing held immediately after sentencing. Id. at ___, 813 S.E.2d at 464. Here, the
SBM hearing was held based upon this Court’s directive in Lindsey I, where we
remanded because the trial court had not made an explicit determination “that
defendant requires the highest possible level of supervision and monitoring” and
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Opinion of the Court
because “the court did not mark a box in paragraph 4 of the ‘Findings’ section on the
AOC–CR–616 order form to indicate the basis for its decision to place defendant on
satellite-based monitoring.” Lindsey I, ___ N.C. App. ___, 789 S.E.2d 568, *1-7
(quotation marks omitted). And on remand, the State and trial court held a hearing
as directed by Lindsey I where defendant did not -- even indirectly -- raise any
constitutional argument regarding the reasonableness of SBM under the Fourth
Amendment or Grady.
At the beginning of the hearing, the prosecutor called the matter for a SBM
hearing and defendant agreed “this is a call-back hearing[:]”
MS. HAWKINS: William Lindsey, number 207 on
the calendar he is on for a Satellite Base Monitoring
hearing.
In Mr. Lindsey’s hearing I have my probation officer
here. I believe for purposes of time that the defendant will
stipulate to the letter and to the service of that letter, and
that he did indeed receive that letter; is that correct, Mr.
Wilson?
MR. WILSON: Yes, your Honor, this is a call-back
hearing.1
1 In Lindsey I, this Court noted, “The trial court held a ‘bring-back hearing’ on 14 July 2015 to
determine defendant’s eligibility for satellite-based monitoring. . . . When conducting a bring-back
hearing under N.C. Gen. Stat. § 14-208.40B(c), the trial court is not bound by the DAC’s risk
assessment when assessing whether a defendant requires the highest possible level of supervision and
monitoring.” Lindsey I, ___ N.C. App. ___, 789 S.E.2d at 568, *2-4. Although defendant’s counsel
referred to it as a “call-back” hearing instead of a “bring back” hearing, his meaning is obvious and
this hearing before the trial court was actually the “bring back” hearing on remand.
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With no further discussion of the purpose of the hearing, the State presented its
evidence. The hearing was very brief and no evidence regarding a Fourth
Amendment search analysis was presented. The State called only one witness, a
probation officer, not defendant’s, and admitted only one exhibit, a Static 99 risk
assessment. Consistent with the directive of this Court in Lindsey I, the main focus
of the hearing was whether defendant should be subject to SBM as “the highest
possible level of supervision and monitoring, N.C. Gen. Stat. § 15A-208.40B(c)[.]” Id.
at ___ 789 S.E.2d 568, * 1-2.
After the testimony of the probation officer, the trial court asked to review “the
investigative file that the DA may have in their possession in regards to the
background, more detailed background of the charges and disposition[,]” and
defendant had no objection to the trial court’s review of this file. The trial court then
adjourned the hearing until two days later to have “the opportunity to look at the
investigative file” before making its decision. We are uncertain of the purpose of the
trial court’s review of the entire investigative file from defendant’s 2009 prosecution,
since it is well-established that SBM decisions must be based only upon the elements
of the crime for which the defendant was convicted, whether by plea or trial, and not
upon the facts alleged by the State in its prosecution.2 See State v. Santos, 210 N.C.
App. 448, 453, 708 S.E.2d 208, 212 (2011) (“[I]n State v. Davison, . . . we held that
2We also note that the State’s investigative file -- which was apparently crucial to the trial court’s
decision -- is not in the record before us, and defendant raises no argument regarding use of this file.
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Opinion of the Court
when making a determination pursuant to N.C.G.S. § 14–208.40A, the trial court is
only to consider the elements of the offense of which a defendant was convicted and
is not to consider the underlying factual scenario giving rise to the conviction.”
(quotation marks omitted); see also State v. Davison, 201 N.C. App. 354, 364, 689
S.E.2d 510, 517 (2009) (“The General Assembly’s repeated use of the term ‘conviction’
compels us to conclude that, when making a determination pursuant to N.C.G.S. §
14–208.40A, the trial court is only to consider the elements of the offense of which a
defendant was convicted and is not to consider the underlying factual scenario giving
rise to the conviction. In the case before us, the trial court erred when making its
determinations by considering Defendant’s plea colloquy in addition to the mere fact
of his conviction.”).
But whatever the purpose of the trial court’s review of the file, a file from a
2009 prosecution would not contain the information needed for a Grady hearing. Yet
the trial court used this information, as well as evidence from the hearing, to
determine that defendant should be enrolled in SBM. In announcing its ruling, the
trial court specifically referred to “the investigative report” at least twice and noted,
“As I said the Court has reviewed the investigative report and indicated a series of
sexual indiscretions with this minor age child. The defendant was aware of her age,
but continued to take -- have sexual activities with her.” `The trial court’s
“ADDITIONAL FINDINGS” attached to the order were:
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1. The defendant, when he became aware that the
victim was under age, continued his sexual activity with
her.
2. At the time of conviction, the defendant had 9 prior
record points and was record level IV.
3. It is reasonable for public safety and justified that
the defendant be placed on satellite based monitoring for a
period of 5 years.
4. The defendant is be to given credit toward that 5
year period for any previous time that the defendant has
been subject to satellite based monitoring.
None of the additional findings address a Grady analysis or issues under the Fourth
Amendment, but instead only address the trial court’s reasons for requiring SBM as
“the highest possible level of supervision and monitoring.” Thus, the constitutional
issues related to Grady were neither raised by defendant nor ruled upon by the trial
court as defendant contends, so this issue has not been preserved for appellate review.
Defendant’s request for review under Rule 2 remains to be considered. Again,
Bursell is helpful to our analysis. In Bursell, this Court determined the Grady issue
had been implicitly addressed in the trial court and was preserved. ___ N.C. App. at
___, 813 S.E.2d at 466. But the Court also noted that “[a]ssuming, 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.” Id. at 466–67. The primary reason the Bursell
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Opinion of the Court
Court would have invoked rule 2 was that “the State here concedes reversible error.”
Id. at ___ 813 S.E.2d at 467. Here, the State does not concede error.
In State v. Bishop, this Court noted that the defendant’s Grady argument from
his SBM hearing was also not preserved:
Indeed, Bishop concedes that the argument he seeks to
raise is procedurally barred because he failed to raise it in
the trial court. We recognize that this Court previously has
invoked Rule 2 to permit a defendant to raise an
unpreserved argument concerning the reasonableness of
satellite-based monitoring. But the Court did so in Modlin
because, at the time of the hearing in that case, neither
party had the benefit of this Court’s analysis in Blue and
Morris. In Blue and Morris, this Court outlined the
procedure defendants must follow to preserve a Fourth
Amendment challenge to satellite-based monitoring in the
trial court.
This case is different from Modlin because Bishop’s
satellite-based monitoring hearing occurred several
months after this Court issued the opinions in Blue and
Morris. Thus, the law governing preservation of this issue
was settled at the time Bishop appeared before the trial
court. As a result, the underlying reason for invoking Rule
2 in Modlin is inapplicable here and we must ask whether
Bishop has shown any other basis for invoking Rule 2.
He has not. Bishop’s argument for invoking Rule 2
relies entirely on citation to previous cases such as Modlin,
where the Court invoked Rule 2 because of circumstances
unique to those cases. In the absence of any argument
specific to the facts of this case, Bishop is no different from
countless other defendants whose constitutional
arguments were barred on direct appeal because they were
not preserved for appellate review.
State v. Bishop, ___ N.C. App. ___, ___, 805 S.E.2d 367, 369–70 (2017) (citations,
quotation marks, and brackets omitted), disc. review denied, ___ N.C. ___, 811 S.E.2d
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159 (2018).
This case differs from other cases in which Rule 2 review has been allowed only
in its procedural posture, and that difference does not favor defendant. The law
regarding Grady was well-established by the time of defendant’s bring-back hearing,
but he made no constitutional objection. See generally Grady, 135 S. Ct. 1368, 191 L.
Ed. 2d 459. The State and trial court proceeded with the hearing as directed by this
Court in Lindsey I. Defendant had the opportunity to raise his constitutional
argument, but he did not take it. We decline to exercise our discretion under Rule 2
to consider defendant’s constitutional argument. If we allowed review in this case,
this would essentially allow defendants to sit silently in the SBM hearing while the
State and trial court address the case without knowing what issues defendant may
raise on appeal and without giving either the opportunity to address them. Although
the State has the burden of proof of reasonableness of SBM under the Fourth
Amendment as directed by Grady, see generally Grady, 135 S. Ct. 1368, 191 L. Ed. 2d
459, the defendant still must raise the constitutional objection so the State will be on
notice it must present evidence to meet its burden.
IV. Conclusion
We decline to grant review under Rule 2 to consider defendant’s constitutional
argument which he waived. As defendant makes no other argument regarding the
SBM order, we affirm.
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Opinion of the Court
AFFIRMED.
Judges ZACHARY and ARROWOOD concur.
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