State v. Billings, ___ N.C. App. ___, 2021-NCCOA-306 (Jul. 6, 2021)

In this Iredell County case, the defendant was convicted of multiple counts of indecent liberties with a minor. He was ordered to enroll in satellite-based monitoring (“SBM”) for life as a recidivist offender. The North Carolina Supreme Court later decided State v. Grady (“Grady III”), 372 N.C. 509, 831 S.E.2d 542 (2019) (holding SBM unconstitutional as applied to recidivist offenders). A “review hearing” of defendant’s SBM enrollment was conducted following that decision. No motion or other pleading was filed by the State for the hearing. The defendant appeared pro se. The State presented a Static-99 risk assessment and recounted the defendant’s criminal record. The trial court ordered that the defendant remain enrolled in the SBM program for life, and the defendant appealed. 

No basis for SBM existed in this case other than the defendant’s status as a recidivist. Grady III squarely held that one’s status as a recidivist alone is insufficient to justify SBM. The State argued that the defendant had been provided an opportunity to seek removal from the program at the review hearing, and that the trial court’s order was supported by the evidence. According to the State, the review process rendered the defendant ineligible for relief under Grady III. The court disagreed:

The State did not invoke the jurisdiction of the trial court for the [review] hearing during which Defendant was ostensibly provided with the post hoc process that the State claims disqualifies him from relief under Grady III. The State cannot avoid Grady III . . . by devising a procedure that itself violates Defendant’s rights. Billings Slip op. at 9.

 While G.S. 14-208.40A permits the trial court to consider SBM at sentencing, and G.S. 14-208.40B permits a “bring-back” hearing where there has been no prior determination of SBM eligibility, neither of these statutes applied to the defendant’s situation. Further, case law is clear that the State may not seek reconsideration of SBM once the issue has been decided. See State v. Clayton, 206 N.C. App. 301 (2010) (imposition of SBM at probation violation was improper when issue had already been decided against the State at SBM hearing). Without a new reportable conviction, there was no jurisdictional basis for the purported SBM review hearing. The lack of a written motion or pleading also acted to deprive the trial court of jurisdiction.  The SBM order was therefore vacated without prejudice, allowing the State to properly seek a SBM order if it desires.

Judge Tyson wrote separately to concur in result only. He noted that any discussion in the majority opinion beyond its holding that the trial court lacked jurisdiction was dicta.