State v. Barnes

862 S.E.2d 852

STATE of North Carolina

v.James Dwayne BARNES

No. COA20-597

Court of Appeals of North Carolina.

Filed July 6, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General Brenda Menard, for the State.

Mark Montgomery, for the defendant.

ARROWOOD, Judge.

¶ 1 James Dwayne Barnes ("defendant") appeals by writ of certiorari from the trial court's order imposing lifetime satellite-based monitoring ("SBM"). Defendant contends the order should be vacated because "[t]here was no hearing of any kind, no argument by the State, nothing to support the trial court's order." For the following reasons, we vacate the order without prejudice to the State's ability to file a subsequent SBM application.

I. Background

¶ 2 On 2 July 2018, defendant was indicted for assault by strangulation, first-degree rape, first-degree kidnapping, two counts of first-degree sexual offense, and attaining habitual offender status. The matter came on for trial at the 21 October 2019 criminal session of Alamance County Superior Court, the Honorable D. Thomas Lambeth, Jr., presiding. The State's evidence tended to show as follows.

¶ 3 In May 2018, defendant, who is white, was dating "Cindy,"¹ also white. Cindy was engaging in prostitution to earn "[m]oney for cocaine[,]" as well as to provide defendant to "do whatever we had to live. Live by it and buy cigarettes and dope." On or around 7 May 2018, Cindy prostituted herself to an African American man, "Brian." When defendant discovered Cindy in bed with Brian, defendant became angry and started beating Cindy, eventually choking Cindy until she lost consciousness. After Cindy regained consciousness, defendant anally raped Cindy and continued to beat her. Cindy later fell asleep, but defendant periodically woke her and beat her, and also forced her to perform oral sex.

¶ 4 The following morning, defendant and Cindy went to a Wal-Mart to panhandle. Officer Justin Jolly ("Officer Jolly") of the Burlington Police Department received a call about Cindy's apparent injuries and went to the Wal-Mart to investigate. After interviewing defendant and Cindy separately, Officer Jolly arrested defendant.

¶ 5 On 8 May 2018, Cindy was interviewed by Sharon Staley ("Ms. Staley"), a forensic nurse, and Lindsey Strickland ("Ms. Strickland"), a forensic nurse examiner. Both Ms. Staley and Ms. Strickland testified that Cindy's physical injuries were consistent with her account. Cindy was also interviewed by Detective Kevin King ("Detective King") with the Burlington Police Department, and Justin Parks ("Mr. Parks"), a special victims investigator with the Iredell County Sheriff's Office. Recordings of Cindy's interviews with Detective King and Mr. Parks were played for the jury.

¶ 6 On 25 October 2019, a jury found defendant guilty of assault by strangulation, first-degree rape, first-degree kidnapping, one count of first-degree sexual offense, and of being a habitual offender. The trial court consolidated the convictions and imposed a sentence of 420 to 564 months imprisonment. The trial court determined that defendant had committed a sexually violent offense and an aggravated offense, and accordingly ordered defendant to enroll in SBM for life.

¶ 7 Defendant gave oral notice of appeal in open court on 25 October 2019. Defendant filed petition for writ of certiorari on 9 November 2020.

II. Discussion

¶ 8 Defendant contends the trial court erred in ordering lifetime SBM where the trial court did not conduct a hearing on whether lifetime SBM was reasonable and the State did not offer any evidence that lifetime SBM was reasonable. Because the oral notice of appeal was insufficient to confer jurisdiction on this Court, defendant petitions for writ of certiorari to review the merits of his appeal.

A. Appellate Jurisdiction

¶ 9 Because of the civil nature of SBM hearings, a defendant must file a written notice of appeal from an SBM order pursuant to Appellate Rule 3. N.C.R. App. P. 3(a) ; State v. Brooks , 204 N.C. App. 193, 194-95, 693 S.E.2d 204, 206 (2010) (holding that oral notice of appeal from an SBM order does not confer jurisdiction on this Court). This Court, however, is authorized to issue writs of certiorari "to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C.R. App. P. 21(a)(1). In the present case, because defendant's oral notice of appeal was insufficient to confer jurisdiction on this Court under Rule 3, defendant filed a petition for a writ of certiorari on 9 November 2020 seeking review of the order imposing lifetime enrollment in SBM. In our discretion, we allow defendant's petition for writ of certiorari.

¶ 10 Defendant asserts that the trial court erred in ordering that defendant enroll in lifetime SBM upon his release from prison because the State failed to meet its burden of proving the imposition of lifetime SBM is a reasonable search under the Fourth Amendment. See Grady v. North Carolina ("Grady I "), 575 U.S. 306, 310, 135 S.Ct. 1368, 1371, 191 L. Ed. 2d 459, 462 (2015). However, defendant did not raise any constitutional challenge or otherwise preserve this constitutional claim at any point during his sentencing hearing. Pursuant to Rule 10 of the North Carolina Appellate Rules of Procedure, "to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(a)(1). Accordingly, because defendant did not object to the imposition of lifetime SBM on constitutional grounds, he has waived the ability to argue it on appeal. State v. Bursell ("Bursell II "), 372 N.C. 196, 200, 827 S.E.2d 302, 305 (2019).

¶ 11 Defendant requests that this Court exercise its discretion to invoke Rule 2 of the Rules of Appellate Procedure to reach the merits. Under Rule 2, "[t]o prevent manifest injustice to a party ... either court of the appellate division may ... suspend or vary the requirements or provisions of any of these rules in a case pending before it ... upon its own initiative[.]" N.C.R. App. P. 2. An appellate court's decision to invoke Rule 2 and suspend the appellate rules is always an exercise of discretion. Bursell II , 372 N.C. at 201, 827 S.E.2d at 306. " Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances , significant issues of importance in the public interest or to prevent injustice which appears manifest to the Court and only in such instances. " State v. Campbell , 369 N.C. 599, 603, 799 S.E.2d 600, 602 (2017) (emphasis in original) (citation omitted). The determination of whether a particular case is an "instance" appropriate for Rule 2 review "must necessarily be made in light of the specific circumstances of individual cases and parties , such as whether ‘substantial rights of an appellant are affected.’ " Id. (emphasis in original) (quoting State v. Hart , 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) ).

¶ 12 In Bursell II , our Supreme Court affirmed this Court's decision to invoke Rule 2 and review the unpreserved constitutional issue. Bursell II , 372 N.C. at 197, 827 S.E.2d at 303 (affirming State v. Bursell ("Bursell I ") 258 N.C. App. 527, 813 S.E.2d 463 (2018) ). First noting that the Fourth Amendment right implicated in such cases is a substantial right, the Bursell II Court affirmed this Court's suspension of the appellate rules after examining "the specific circumstances of [the] individual case[ ] and parties," including "defendant's young age, the particular factual bases underlying his pleas, and the nature of those offenses, combined with the State's and the trial court's failures to follow well-established precedent in applying for and imposing SBM, and the State's concession of reversible Grady error." Id. at 201, 827 S.E.2d at 306.

¶ 13 In State v. Ricks , 271 N.C. App. 348, 843 S.E.2d 652, writ allowed , 375 N.C. 281, 842 S.E.2d 602 (2020),² this Court examined the State's and trial court's failure to follow well-established precedent in applying for and imposing SBM. The Court first discussed Bursell I , in which "the trial court and the State had the benefit of our Court's precedent in State v. Blue , 246 N.C. App. 259, 783 S.E.2d 524 (2016), and State v. Morris , 246 N.C. App. 349, 783 S.E.2d 528 (2016), which ‘made clear that a case for SBM is the State's to make[.]’ " Ricks , 271 N.C. App. at 360, 843 S.E.2d at 663 (citing Bursell I , 258 N.C. App. at 533, 813 S.E.2d at 467 ) (internal quotation marks omitted). In Ricks , "the State and the trial court ... had the benefit of even more guidance regarding the State's burden than in Bursell [,]" which "make clear that the trial court must conduct a hearing to determine the constitutionality of ordering a defendant to enroll in the SBM program, and that the State bears the burden of proving the reasonableness of the search." Id. at 360-61, 843 S.E.2d at 663 (citing State v. Greene , 255 N.C. App. 780, 806 S.E.2d 343 (2017), State v. Grady ("Grady II "), 259 N.C. App. 664, 817 S.E.2d 18 (2018), aff'd as modified , 372 N.C. 509, 831 S.E.2d 542 (2019) (" Grady III "), State v. Griffin , 260 N.C. App. 629, 818 S.E.2d 336 (2018), and State v. Gordon ("Gordon I "), 261 N.C. App. 247, 820 S.E.2d 339 (2018) ).

¶ 14 Here, as in Ricks , the State and trial court had the benefit of even more guidance than in Bursell I . The multiple cases referenced above clearly state a Grady hearing must be conducted and the State must present any evidence regarding the reasonableness of the search. Although the trial court in this case had the benefit of the precedent referenced above, it did not conduct a Grady hearing and the State failed to offer any evidence regarding the reasonableness of the search. For these reasons, we exercise our discretion and...