State v. Hutchens, ___ N.C. App. ___, ___ S.E.2d ___ (Jun. 16, 2020)

In this rape and sex offense case, the Court of Appeals reversed the trial court’s order imposing lifetime SBM.  First addressing its appellate jurisdiction, the court explained that it allowed the defendant’s petition for writ of certiorari in its discretion, notwithstanding procedural defects in his notice of appeal, because of the “meritorious nature” of the defendant’s argument regarding SBM and the current “tumultuous” state of the law.  Before turning to the merits of the SBM issue, the court also dismissed a portion of the defendant’s appeal having to do with attorney’s fees because an order for those fees had not been entered as a civil judgment. 

As the defendant was not a recidivist and, consequently, the order requiring lifetime SBM was not facially unconstitutional under State v. Grady, 259 N.C. App. 664 (2018) (“Grady III”), the court conducted a reasonableness analysis guided by the principles of Grady III, namely that it is the State’s burden to show that under the totality of the circumstances lifetime SBM is reasonable because its intrusion upon Fourth Amendment interests is balanced by its promotion of legitimate government interests.  As to the intrusion side of the analysis, the court likened this case to State v. Gordon, ___ N.C. App. ___, 840 S.E.2d 907 (2020) where it explained that the State’s ability to show the reasonableness of lifetime SBM is hampered in situations where it is imposed at sentencing but will not be implemented upon the defendant until he or she is released after a lengthy prison sentence.  The court also noted the deeply intrusive nature of the ET-1 monitoring device at issue and the fact that the defendant’s privacy interests will be less diminished following his completion of PRS.  As to the State’s interest in SBM and its efficacy, the court rejected the State’s argument that SBM would discourage recidivism, saying that the State had not presented evidence to support that assertion, either generally or with respect to the defendant specifically.  The court also rejected the State’s argument that lifetime SBM would serve the purpose of keeping the defendant out of “exclusion zones,” noting that his status as a registered sex offender already barred him from many such zones and that his offense involved an adult roommate.  For a lack of evidence, the court also rejected the argument that lifetime SBM would ensure that he abided by an order to have no contact with the victim.  Under the totality of the circumstances, the State did not show that lifetime SBM was a reasonable warrantless search in this case.