Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/26/2021
E.g., 09/26/2021

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 463 (2018), the court held that although the defendant failed to preserve his argument that the trial court erred by imposing lifetime SBM without determining whether the monitoring was a reasonable search under the Fourth Amendment, the Court of Appeals did not abuse its discretion by invoking Appellate Rule 2 to review the unpreserved constitutional issue. The Court of Appeals concluded that the defendant properly preserved the issue of whether his SBM was reasonable under the Fourth Amendment and that alternatively, if the defendant had failed to preserve the issue, it would invoke Rule 2 to relax Rule 10’s issue preservation requirement and review the claim on the merits. The Court of Appeals then vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application. The Supreme Court held that because the defendant failed to object to the SBM order on Fourth Amendment constitutional grounds with the requisite specificity, he waived the ability to raise that issue on appeal. However, the Court of Appeals did not abuse its discretion by invoking Appellate Rule 2 to review the unpreserved argument. In this respect the court found it significant that the State conceded that the trial court committed error relating to a substantial right.

The court per curiam affirmed a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 833 (2018), in which the court declined the defendant’s request to grant his petition for writ of certiorari to review the trial court’s order requiring him to enroll in lifetime SBM. The defendant argued that the trial court erred by ordering him to submit to SBM without first making a reasonableness determination as required by Grady. The defendant conceded that he failed to make his constitutional argument at trial and that his appeal from the SBM order was untimely.

In this Catawba County case, the defendant pled guilty to five counts of indecent liberties with a minor in lieu of other related charges, including possession of child pornography and other sexual assaults on children. The State argued for the imposition of satellite-based monitoring (“SBM”), pointing to the factual bases for the pleas and a STATIC-99R assessment finding the defendant to be “Average Risk.” The trial court ordered the defendant to enroll in SBM for a term of ten years following his release from prison. The defendant sought certiorari review, arguing the trial court erred by ordering SBM, that the State failed to demonstrate that SBM was reasonable under State v. Grady, 372 N.C. 509 (2019), and that his trial counsel was ineffective for failing to raise a constitutional challenge to the SBM order.

(1) In addition to the factual bases and the STATIC-99R, the trial court found that the defendant assaulted several children of both genders, that those children were between 6 and 14 years old, and that the defendant abused a position of trust to facilitate the assaults. These findings were supported by the evidence: “The unobjected to evidence, that Defendant admitted as part of his plea bargain, provides competent evidence to support [these] additional findings.” Blankenship Slip op. at 7. These findings and the STATIC-99R also supported a finding that the defendant “require[d] the highest possible level of supervision,” warranting imposition of SBM. Id. at 8. The trial court properly considered the context of the offenses, and the additional findings were related to the defendant’s likely recidivism and were not duplicative of the STATIC-99R. The trial court did not therefore err in ordering the defendant to enroll in SBM.

(2) The defendant did not object or raise any challenge to the imposition of SBM for a term at the time of the order. Any constitutional objection was therefore unpreserved: “The defendant did not raise a constitutional issue before the trial court, cannot raise it for the first time on appeal, and has waived this argument on appeal.” Id. at 13. The court declined to invoke Rule 2 of the Rules of Appellate Procedure to review the unpreserved issue and dismissed the claim.

(3) The court likewise rejected any alleged ineffective assistance of counsel claim in the SBM context: “Our Court has held ‘hearings on SBM eligibility are civil proceedings.’. . .[and ineffective assistance of counsel] claims are not available in civil appeals such as that form an SBM eligibility hearing.” Id. at 14. This claim was also dismissed, and the trial court’s judgments were unanimously affirmed.

The defendant failed to preserve for appellate review his claim that the trial court erred by requiring him to enroll in satellite-based monitoring (SBM). The defendant asserted that the State failed to meet its burden of proving that imposing SBM is reasonable under the fourth amendment. Because the defendant raised no fourth amendment objection 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 its discretion, the court declined to grant review under Rule 2, reasoning that 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 the defendant’s failure to raise the constitutional issue.

Because SBM hearings are civil proceedings, the defendant’s oral notice of appeal from an order requiring him to enroll in lifetime SBM was insufficient to give the court jurisdiction to hear his appeal. The court declined to grant the defendant’s request for writ of certiorari to review the issue, or to suspend the Rules of Appellate Procedure to reach the merits.

A defendant’s appeal from a trial court’s order requiring enrollment in SBM for life is a civil matter. Thus, oral notice of appeal pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on the court of appeals. Instead, a defendant must give notice of appeal pursuant to N.C.R. App. P. 3(a) as is proper “in a civil action or special proceeding[.]” For related cases, compare State v. Clayton, 206 N.C. App. 300 (Aug. 3, 2010) (following Brooks and treating the defendant’s brief as a petition for writ of certiorari and granted the petition to address the merits of his appeal); State v. Oxendine, 206 N.C. App. 205 (Aug. 3, 2010) (same); State v. Cowan, 207 N.C. App. 192 (Sept. 21, 2010) (same); State v. May, 207 N.C. App. 260 (Sept. 21, 2010) (same); State v. Williams, 207 N.C. App. 499 (Oct. 19, 2010) (same), with State v. Inman, 206 N.C. App. 324 (Aug. 3, 2010) (over a dissent, the court followed Brooks and held that because there was no written notice of appeal, it lacked jurisdiction to consider the defendant’s appeal from a trial court order requiring SBM enrollment; the court declined to treat the defendant’s appeal as a petition for writ of certiorari; the dissenting opinion would have treated the defendant’s appeal as a writ of certiorari and affirmed the trial court’s order.

Because a SBM order is a final judgment from the superior court, the Court of Appeals has jurisdiction to consider appeals from SBM monitoring determinations under G.S. 14-208.40B pursuant to G.S. 7A-27.

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