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State v. Bursell

Court of Appeals of North Carolina

March 20, 2018


          Heard in the Court of Appeals 3 May 2017.

         Appeal by defendant from judgment entered 10 August 2016 by Judge Ebern T. Watson III in New Hanover County No. 15 CRS 59331 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Jennie W. Hauser, 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.

         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. 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

         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, 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, ...

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