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State v. Bursell

Supreme Court of North Carolina

May 10, 2019


          Heard in the Supreme Court on 28 August 2018.

          Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, __ N.C.App. __, 813 S.E.2d 463 (2018), vacating an order for satellite-based monitoring entered on 10 August 2016 by Judge Ebern T. Watson III in Superior Court, New Hanover County.

          Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State-appellant.

          Meghan Adelle Jones for defendant-appellee.

          NEWBY, JUSTICE.

         On its merits, this case asks whether the trial court erred when it failed to determine if the lifetime satellite-based monitoring (SBM) imposed upon defendant constitutes a reasonable search under the Fourth Amendment. Contrary to the Court of Appeals' conclusion, however, defendant failed to specifically object to the imposition of SBM on constitutional grounds, thereby waiving his ability to raise that issue on appeal. Nonetheless, where the State concedes that the trial court committed error relating to a substantial right, the Court of Appeals did not abuse its discretion when it invoked Appellate Rule 2 to review the unpreserved constitutional issue. Accordingly, we reverse in part and affirm in part the decision of the Court of Appeals.

         On 10 August 2016, defendant Joseph Charles Bursell pled guilty to statutory rape and taking indecent liberties with a minor. At the sentencing hearing, the State requested that the court find that defendant committed an aggravated, sexually violent offense and order lifetime registration as a sex offender and lifetime SBM. Defendant's counsel objected to the State's request concerning the imposition of lifetime sex offender registration and lifetime SBM:

[Defense Counsel]: . . . I would object on two grounds. I know the status of the law is pretty clear as to the [sex offenders] 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 him 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.
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 [aren'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.

         The trial court responded:

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.

         The trial court sentenced defendant to 192 to 291 months of imprisonment. Finding that he had committed an aggravated, sexually violent offense, the court further ordered defendant to register as a sex offender for life and enroll in SBM for life upon his release from prison unless monitoring is terminated under N.C. G.S. § 14-208.43. Defendant appealed from the trial court's order regarding the registry and SBM.

         Before the Court of Appeals, defendant argued that the trial court improperly imposed lifetime SBM because it failed to determine whether the monitoring effectuated a reasonable search under the Fourth Amendment. See Grady v. North Carolina, __ U.S. __, 135 S.Ct. 1368, 191 L.Ed.2d 459 (2015) (per curiam) (holding that the State's SBM program "effects a Fourth Amendment search" that implicates the privacy expectations of the defendant and therefore must be reasonable to withstand constitutional scrutiny). The State asserted that defendant failed to preserve this Fourth Amendment challenge below, thereby waiving his ability to challenge the issue on appeal. The State noted, however, that if defendant properly preserved this argument, it would concede that the SBM order should be vacated and remanded for a determination of reasonableness consistent with Grady.

         In a divided decision, the Court of Appeals concluded that defendant had properly preserved the issue of whether his SBM was reasonable under the Fourth Amendment. State v. Bursell, __ N.C.App. __, __, 813 S.E.2d 463, 468 (2018). Alternatively, the Court of Appeals majority determined 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 __, 813 S.E.2d at 466-67. As a result, the Court of Appeals vacated the SBM order "without prejudice to the State's ability to file a subsequent SBM application." Id. at __, 813 S.E.2d at 468. The dissent argued that defendant failed to properly preserve the constitutional issue for appeal and further ...

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