               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-311

                                Filed: 3 October 2017

Pitt County, No. 14 CRS 55014-15

STATE OF NORTH CAROLINA,

              v.

LINWOOD EARL GREENE, Defendant.


        Appeal by defendant from order entered 14 November 2016 by Judge Jeffery

B. Foster in Pitt County Superior Court. Heard in the Court of Appeals 6 September

2017.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph
        Finarelli, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
        Grant, for defendant-appellant.


        ZACHARY, Judge.


        Defendant appeals the Satellite-Based Monitoring Order entered after his

Alford plea to two counts of taking indecent liberties with a child. Defendant argues

on appeal that the trial court erred in ordering lifetime satellite-based monitoring in

the absence of evidence from the State that this was a reasonable search of defendant.

We agree, and conclude that this matter must be reversed.

                                       Background
                                   STATE V. GREENE

                                   Opinion of the Court



      Defendant Linwood Earl Greene (defendant) was indicted on 27 October 2014

and on 14 July 2015 for sex offense with a 13, 14, or 15-year old child. On 15 August

2016, defendant entered an Alford plea before the Honorable Walter H. Godwin, Jr.

to two counts of taking indecent liberties with a child. Judge Godwin then entered an

order sentencing defendant to an active term of twenty-six to forty-one months’

imprisonment and requiring that defendant register as a sex offender for the

remainder of his natural life. No order regarding satellite-based monitoring was

entered on that day.

      On 14 November 2016, a satellite-based monitoring determination hearing was

held upon the State’s application before the Honorable Jeffery B. Foster. Defendant

filed a Motion to Dismiss the State’s Application for Satellite-Based Monitoring prior

to the hearing. At the satellite-based monitoring hearing, the State put forth evidence

establishing that defendant had a prior conviction of misdemeanor sexual battery, in

addition to his conviction on 15 August 2016 of two counts of taking indecent liberties

with a child. The State offered no further evidence beyond defendant’s criminal

record.

      The trial court heard arguments from both parties. Referencing his motion to

dismiss, defendant challenged the constitutionality of the lifetime satellite-based

monitoring enrollment by citing Grady v. North Carolina, State v. Blue, and State v.

Morris, positing that the State had not met its burden of establishing, under a totality



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                                   STATE V. GREENE

                                   Opinion of the Court



of the circumstances, the reasonableness of the satellite-based monitoring program

in light of both the State’s interests and defendant’s privacy interests. The trial court

denied defendant’s motion to dismiss, reasoning “that based on the fact that this is

the second conviction that . . . defendant has accumulated of a sexual nature, . . . his

privacy interests are outweighed by the State’s interest in protecting future victims.”

Judge Foster then ordered that defendant be enrolled in the satellite-based

monitoring program for the remainder of his natural life.

      On appeal, defendant argues that the trial court erred in ordering lifetime

satellite-based monitoring because the State’s evidence was insufficient to establish

that the enrollment constituted a reasonable Fourth Amendment search under Grady

v. North Carolina, State v. Blue, and State v. Morris. The State has conceded this

point. However, the State contends that it should have a chance to supplement its

evidence, upon remand from this Court, in order to support the finding that enrolling

defendant in lifetime satellite-based monitoring is a reasonable Fourth Amendment

search. Defendant argues that this Court should reverse without remand.

Accordingly, the only issue before us involves the appropriate remedy.

                                         Discussion

      The United States Supreme Court has held that North Carolina’s satellite-

based monitoring program constitutes a search for purposes of the Fourth

Amendment. Grady v. North Carolina, 575 U.S. ___, ___, 191 L. Ed. 2d 459, 462,



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                                   STATE V. GREENE

                                   Opinion of the Court



(2015). As such, North Carolina courts must first “examine whether the State’s

monitoring program is reasonable—when properly viewed as a search”—before

subjecting a defendant to its enrollment. Id. at ___, 191 L. Ed. 2d at 463. This

reasonableness inquiry requires the court to analyze the “totality of the

circumstances, including the nature and purpose of the search and the extent to

which the search intrudes upon reasonable privacy expectations.” Id. at ___, 191 L.Ed

2d at 462. These satellite-based monitoring proceedings, while seemingly criminal in

nature, are instead characterized as “civil regulatory” proceedings. State v. Brooks,

204 N.C. App. 193, 194, 693 S.E.2d 204, 206 (2010).

      Notwithstanding the fact that satellite-based monitoring proceedings are civil

proceedings, the State argues that the civil bench proceeding standard, pursuant to

which “[a] dismissal under Rule 41(b) should be granted if the plaintiff has shown no

right to relief[,]”—is inapplicable here. Hill v. Lassiter, 135 N.C. App. 515, 517, 520

S.E.2d 797, 800 (1999). In so arguing, the State reasons that in satellite-based

monitoring proceedings, the State is not specifically referred to as “the plaintiff.” This

reasoning is far too technical and detracts from the true substance of satellite-based

monitoring proceedings. Viewed in the civil context, the State is undoubtedly the

party seeking relief in a satellite-based monitoring proceeding. See N.C. Gen. Stat. §

14-208.40A(a).




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                                     STATE V. GREENE

                                     Opinion of the Court



      Next,     the    State     argues        that         remand    is   proper    under

State v. Blue and State v. Morris.

      After Grady was decided, there was some uncertainty concerning the scope of

the State’s burden at satellite-based monitoring proceedings, and several cases came

up to this Court in the midst of that uncertainty. See State v. Blue, ___ N.C. App. ___,

783 S.E.2d 524 (2016); State v. Morris, ___ N.C. App. ___, 783 S.E.2d 528 (2016). Blue

and Morris resolved those uncertainties, however, as this Court made it abundantly

clear that “the State shall bear the burden of proving that the [satellite-based

monitoring] program is reasonable.” Blue, ___ N.C. App. at ___, 783 S.E.2d at 527;

Morris, ___ N.C. App. at ___, 783 S.E.2d at 530.              But, having just resolved the

uncertainty, it was necessary for this Court to remand Blue and Morris so that the

State would have an appropriate opportunity to establish its burden. See Blue, ___

N.C. App. at ___, 783 S.E.2d at 527; State v. Morris, ___ N.C. App. at ___, 783 S.E.2d

at 529 (remand appropriate where “the trial court simply considered the case of

Grady v. North Carolina, and summarily concluded that registration and lifetime

satellite-based monitoring constitutes a reasonable search or seizure of the person

and is required by statute[]”) (internal citations and quotation marks omitted).

However, this case is entirely distinguishable, as the nature of the State’s burden was

no longer uncertain at the time of defendant’s satellite-based monitoring hearing.




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                                    STATE V. GREENE

                                    Opinion of the Court



Blue and Morris made clear that a case for satellite-based monitoring is the State’s

to make. The State concedes it has not done so.

       Even accepting its burden, the State contends that, “[a]s with any appellate

reversal of a trial court’s determination that plaintiff’s evidence is legally sufficient,

nothing . . . precludes the Appellate Division from determining in a proper case that

plaintiff[-]appellee is nevertheless entitled to a new trial.” Harrell v. W.B. Lloyd

Constr. Co., 300 N.C. 353, 358, 266 S.E.2d 626, 630 (1980) (citations omitted)

(emphasis in the original). In Harrell, however, remand was appropriate because

“incompetent evidence ha[d] been erroneously considered by the trial judge in his

ruling on the sufficiency of plaintiff’s evidence.” Id. at 358, 266 S.E.2d at 630 (citations

omitted). The evidence was insufficient in light of the improperly considered evidence.

Id. Therefore, it was necessary to remand the case in order for the trial court to

consider the matter anew absent the erroneously admitted evidence. In contrast,

there has been no contention in this case that the State’s evidence was improperly

considered by the trial court. The conceded error instead involves the State’s evidence

having been too scant to satisfy its burden under the requirements of Grady.

       Because “dismissal under Rule 41(b) is to be granted if the plaintiff has shown

no right to relief[,]” having conceded the trial court’s error, the State must likewise

concede that the proper outcome below would have been for the trial court to grant

defendant’s motion and dismiss the satellite-based monitoring proceeding against



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                                         STATE V. GREENE

                                         Opinion of the Court



him. 1 See Jones v. Nationwide Mut. Ins. Co., 42 N.C. App. 43, 46-47, 255 S.E.2d 617,

619 (1979). And if, as the State’s concession requires, the trial court had properly

dismissed the satellite-based monitoring application, the matter would have ended

there. The State cites no authority suggesting that it would have been permitted to

“try again” by applying for yet another satellite-based monitoring hearing against

defendant, in the hopes of this time having gathered enough evidence. Instead, the

result of the trial court’s dismissal would have been just that—a dismissal, and it is

the duty of this Court to effectuate that result.

                                               Conclusion

       We reverse the trial court’s order denying defendant’s motion to dismiss the

State’s application for satellite-based monitoring.

       REVERSED.

       Judges CALABRIA and MURPHY concur.




       1  Both parties correctly note that defendant’s motion for a “directed verdict” should have been
more properly characterized as a “motion for involuntary dismissal” pursuant to N.C. Gen. Stat. § 1A-
1, Rule 41(b) (2017). See Hill, 135 N.C. App. at 517, 520 S.E.2d at 800 (“When a motion to dismiss
under Rule 41(b) is incorrectly designated as one for a directed verdict, it may be treated as a motion
for involuntary dismissal.”) (citation omitted).

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