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., 09/22/2021
E.g., 09/22/2021

The defendant was convicted of first-degree rape, kidnapping, and sex offense in Alamance County and sentenced to a minimum 420 months. The trial court ordered lifetime satellite-based monitoring (“SBM”), but no Grady hearing was conducted. The defendant sought certiorari review after failing to give proper notice of appeal. The court granted the petition. The defendant further sought to suspend the rules of appellate procedure to allow review of the unpreserved claim. Noting other cases where Rule 2 of the Rules of Appellate Procedure had been invoked to review claims on similar facts, the Court of Appeals allowed review.

Despite ample guidance from case law regarding the requirements for imposition of SBM, the State did not offer any evidence and the trial court did not conduct any hearing on the issue. The order was therefore vacated. Although the State is prohibited from trying again following an unsuccessful attempt to prove the appropriateness of SBM, here, it had no such opportunity given the lack of a hearing on the issue. The order was therefore vacated without prejudice, allowing the State to seek an SBM order if it desires.

Judge Tyson dissented and would not have allowed review of the unpreserved claim, calling the defendant’s appellate argument “frivolous.” Barnes Slip op. at 17 (Tyson, J., dissenting).

In this sex offense and indecent liberties case where the defendant was ordered to enroll in lifetime SBM, the trial court did not plainly err with respect to an Allen charge, the defendant did not preserve his argument related to SBM, and the defendant received statutory ineffective assistance of counsel during the SBM proceedings.  Approximately one hour after beginning deliberations, the jury sent a question to the court asking for clarification as to whether they must have unanimous agreement to render a guilty verdict and whether a lack of unanimity would require that they return a not guilty verdict.  In response and without objection from either party, the trial court responded to the jury’s question with instructions derived from G.S. 15A-1235(a).  The court of appeals rejected the defendant’s argument that the trial court plainly erred by omitting instructions from G.S. 15A-1235(b), explaining that the jury’s question asked for clarification on the issue of unanimity and did not clearly indicate that the jury was deadlocked, in disagreement, or at an impasse.  As such, the trial court did not err by reciting the unanimity instructions in G.S. 15A-1235(a) without providing the additional instructions in subsection (b).

As to SBM, the court first found that the defendant failed to preserve a Fourth Amendment challenge to the lifetime SBM order by failing to make a constitutional objection during the sentencing proceeding where SBM was addressed, and further declined to invoke Rule 2 to reach the issue.  The court went on to agree with the defendant’s alternative argument that he received statutory ineffective assistance of counsel under G.S. 7A-451(a)(18).  Likening the case to State v. Spinks, ___ N.C. App. ___, 2021-NCCOA-218 (2021), the court found that counsel was ineffective by failing to object to SBM enrollment or file a notice of appeal from the SBM order where the State offered no evidence of the reasonableness of lifetime SBM.

The defendant pleaded guilty to raping and murdering his aunt, and received a sentence of 240-348 months for the rape followed by a consecutive sentence of life with parole for the murder. On appeal, the defendant argued that: (i) a consecutive sentence of life with parole was not permitted under G.S. 15A-1340.19A, et seq. (the “Miller-fix statutes”); (ii) his sentence was unconstitutional since it amounted to a de facto sentence of life without parole; and (iii) the trial court erred in ordering lifetime satellite-based monitoring (SBM) without holding a hearing. 

The majority first held that consecutive sentences are permissible under the statutes, and trial courts have discretion to decide whether to order consecutive or concurrent sentences, so the defendant’s first argument was overruled. Next, the court held that the consecutive sentence imposed in this case was not unconstitutional. The majority acknowledged that an identical sentence was held unconstitutional in State v. Kelliher, __ N.C. App. __, 849 S.E.2d 333 (2020), temp. stay allowed, __ N.C. __, 848 S.E.2d 493 (2020), but found that it was not binding precedent because the state Supreme Court stayed the decision and granted discretionary review. Assuming that a de facto life sentence without parole would be unconstitutional, that argument did not apply to this defendant since he will be eligible for parole at age 60, after serving 45 years. However, the trial court did err at the sentencing hearing by failing to conduct a hearing before ordering the defendant to enroll in lifetime SBM, so that order was vacated and remanded with instructions to conduct a hearing.

Chief Judge McGee concurred in part and dissented in part. Judge McGee agreed that the statutes themselves do not prohibit consecutive sentences and also agreed that the order for lifetime SBM should be vacated, but would have held that the consecutive sentence of life with parole constituted a de facto sentence of life without parole, and was therefore unconstitutional as held in Kelliher.

In this case involving rape and other sex crimes where the defendant was ordered to enroll in lifetime SBM, the court of appeals vacated the order imposing SBM because of uncertainty surrounding the evidentiary basis of the trial court’s decision.  With regard to the issue of efficacy of SBM, at the SBM hearing a DPS employee testified regarding a 2015 California study of GPS monitoring of sex offenders and that study was introduced into evidence.  However, the trial court’s order imposing SBM referred to a 2012 California study of GPS monitoring of sex offenders.  The court of appeals vacated the order and remanded for clarification as to which California study the trial court relied upon.

The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.

Immediately after sentencing, the state asked to proceed with an evidentiary hearing on subjecting defendant to satellite-based monitoring (SBM) after his release. Rather than conduct a hearing, the trial court took notice of the facts presented at trial, defendant’s prior conviction, and the nature of the underlying offense, and ordered defendant placed on lifetime SBM. On appeal, defendant argued it was error to enter that order without conduct a hearing; the state conceded it was error, and the Court of Appeals agreed. To support an SBM order, the state must prove at a hearing that the search imposed by monitoring is reasonable as applied to the defendant, under the totality of the circumstances, weighing the defendant’s privacy rights against the state’s legitimate interests. The trial court’s order was reversed and the matter was remanded to conduct the hearing.

Because no evidence was presented prior to or to support the trial court’s lifetime SBM order, the court vacated that order and remanded for proper analysis and determination under G.S. 14-208.40A.

The court reversed the trial court’s lifetime registration and SBM orders. When a trial court finds a person was convicted of a “reportable conviction,” it must order that person to maintain sex offender registration for a period of at least 30 years. If a trial court also finds that the person has been classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense, it must order lifetime registration. Before a trial court may impose SBM, it must make factual findings determining that (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.2A or G.S. 14-27.4A, or (v) the offense involved the physical, mental, or sexual abuse of a minor. Because the victim was not a minor, only the first three categories are relevant here. However in its orders, the trial court found that the defendant had not been convicted of an aggravated offense, was not a recidivist, nor had he been classified as a sexually violent predator. It nevertheless ordered the defendant to enroll in lifetime registration and lifetime SBM. The court reversed the registration and SBM orders and remanded those issues for resentencing. The court noted that if the State pursues SBM on remand, it must satisfy its burden of presenting evidence from which the trial court can fulfill its judicial duty to make findings concerning the reasonableness of SBM under the fourth amendment pursuant to the Grady decision.

Ineffective assistance of counsel claims cannot be asserted in SBM appeals; such claims can only be asserted in criminal matters.

The trial court erred by requiring the defendant to enroll in SBM. After finding that the defendant did not fall into any of the categories requiring SBM under G.S. 14-208.40, the trial court nonetheless ordered SBM enrollment for 30 years, on grounds that his probation was revoked and he failed to complete sex offender treatment. The court remanded for reconsideration.

(1) The court rejected the defendant’s argument that since no civil summons was issued, the trial court had no jurisdiction to impose SBM; the trial court had jurisdiction under G.S. 14-208.40A to order SBM. (2) The trial judge erroneously concluded that the defendant had a reportable conviction on grounds that indecent liberties is an offense against a minor. However, since that offense is a sexually violent offense, no error occurred.

The trial court erred by ordering the defendant to enroll in lifetime satellite-based monitoring. The defendant was convicted of attempted first-degree rape under G.S. 14-27.2, and indecent liberties under G.S. 14-202.1, both sexually violent offenses and thus reportable convictions. At the sentencing hearing, the court found that the offenses “did involve the physical, mental, or sexual abuse of a minor . . . but no risk assessment is required from the [DOC] because lifetime satellite-based monitoring is required . . . .” The trial court ordered that lifetime monitoring based upon a finding that defendant had been convicted of “rape of a child, G.S. 14-27.2A, or sexual offense with a child, G.S. 14-27.4A, or an attempt, solicitation, or conspiracy to commit such offense . . . as a principal.” However, defendant was convicted under G.S. 14-27.2 and 14-202.1, not 14-27.2A or 14-27.4A. Moreover, the trial court did not find that defendant was a sexually violent predator or that defendant was a recidivist, and it found that the offense was not an aggravated offense. Therefore, the trial court erred in ordering lifetime satellite-based monitoring and in failing to order that a risk assessment be performed pursuant to G.S. 14-208.40A(d) prior to ordering enrollment in lifetime monitoring.

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