in the Court of Appeals 8 May 2019.
by defendant from order entered on 26 April 2018 by Judge
Lori I. Hamilton in Superior Court, Rowan County Nos. 17 CRS
974, 51350, 51353, 51412, 51470.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Sonya Calloway-Durham, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender David W. Andrews, for defendant-appellant.
appeals from an order imposing lifetime satellite-based
monitoring ("SBM"). Although the State presented
argument to the trial court regarding the risk of recidivism
by sex offenders based upon various studies and statistics,
the State did not provide the studies to Defendant or the
trial court. The statistics noted by the State were not
subject to judicial notice under Rule 201 since they are
subject to reasonable dispute and they are not "either
(1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned." N.C. Gen. Stat. § 8C-1,
Rule 201(b) (2017). Since the State presented no evidence
supporting the reasonableness of SBM as applied to Defendant,
we must reverse the trial court's order for the reasons
discussed in State v. Grady, ___ N.C. App. ___, 817
S.E.2d 18 (2018) ("Grady II"), and
State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336
entered an Alford plea to attempted first-degree sex
offense, habitual felon, assault on a female, communicating
threats, interfering with emergency communication,
first-degree kidnapping, incest, and second-degree forcible
rape. Defendant's charges were consolidated into a single
judgment and the trial court imposed a sentence of 216 to 320
months. On the same day judgment was entered, Defendant
submitted a motion to dismiss the State's petition for
SBM. The trial court held a hearing regarding SBM. The trial
court denied Defendant's motion and entered an order
directing Defendant to submit to lifetime SBM upon his
release from prison. Defendant timely appealed the order
requiring him to submit to lifetime SBM.
Standard of Review
appellate court reviews conclusions of law pertaining to a
constitutional matter de novo." Grady II, ___
N.C. App. at ___, 817 S.E.2d at 21 (quoting State v.
Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010)).
Evidence of Reasonableness of SBM
argues "[b]ecause the State in this case failed to
satisfy its burden of demonstrating that SBM was a reasonable
search, the order requiring Mr. Anthony to submit to lifetime
SBM must be reversed without remand to superior court."
Defendant also argues that "North Carolina's SBM
program is an unreasonable search that violates the Fourth
the trial court has determined that a defendant is subject to
SBM under North Carolina General Statute §
14-208.40(a)(1)-(3), it must then determine the
constitutionality of the search as applied to the particular
defendant. Grady II, ___ N.C. App. at ___, 817
S.E.2d at 28 ("We reiterate the continued need for
individualized determinations of reasonableness at
Grady hearings."). This analysis includes two
parts: the defendant's risk of recidivism and the
efficacy of SBM to accomplish a reduction of recidivism.
See id. at ___, 817 S.E.2d at 27. Even if we assume
for purposes of argument that sex offenders have a higher
risk of recidivism than those convicted of other crimes, the
State still must address whether SBM is actually effective to
prevent recidivism for that defendant.
hearing, the only evidence the State presented was
"bills that the victim received for medical treatment,
an order of evidence to destroy some evidence, two proposed
form 615s for the registration and satellite-based
monitoring, and two proposed permanent no-contact orders for
the two victims." As ...