in the Court of Appeals 3 May 2017.
by defendant from judgment entered 10 August 2016 by Judge
Ebern T. Watson III in New Hanover County No. 15 CRS 59331
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Jennie W. Hauser, for the State.
Adelle Jones for 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.
August 2016, defendant pled guilty to statutory rape and
indecent liberties with a child after having sex with Anna,
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.
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.
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.
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
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.
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
"[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."
the plea hearing transcript reveals that, after the
State's application of lifetime registration and SBM,