              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-676

                                Filed: 7 August 2018

Craven County, No. 09CRS51204

STATE OF NORTH CAROLINA

             v.

WILLIAM BURNETT LINDSEY, Defendant.


      Appeal by defendant from order entered on or about 10 November 2016 by

Judge Charles H. Henry in Superior Court, Craven County. Heard in the Court of

Appeals 29 November 2017.


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

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
      Orsbon, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals an order requiring him to enroll in North Carolina’s sex

offender satellite-based monitoring (“SBM”) program. Because defendant raised no

objection under the Fourth Amendment at the SBM hearing and the issue was not

implicitly addressed or ruled upon by the trial court, it was not preserved for

appellate review. In our discretion, we decline to grant review under Rule 2 since the

law was well-established at the time of the hearing and the State was not on notice

of the need to address Grady issues due to defendant’s failure to raise any
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                                  Opinion of the Court



constitutional argument. Since defendant raised no other argument about the SBM

order, we affirm.

                                     I.     Background

      In 2009, defendant pled guilty to taking indecent liberties with a child. See

State v. Lindsey, ___ N.C. App. ___, 789 S.E.2d 568, at *2 (June 21, 2016) (COA15-

1251) (unpublished) (“Lindsey I”). Defendant was ordered to enroll in SBM, id. at *3,

and “[d]efendant appeal[ed] from [the] order of the trial court requiring him to enroll

in North Carolina’s sex offender satellite-based monitoring (‘SBM’) program.” Id. at

*1. “Because the trial court failed to make the statutorily-required finding that

defendant ‘requires the highest possible level of supervision and monitoring[,]’ N.C.

Gen. Stat. § 15A-208.40B(c) (2015),” this Court remanded for further proceedings. Id.

at *1-2. In Lindsey I, defendant’s arguments and this Court’s ruling were based only

upon the application of the SBM statute itself. See Lindsey I, ___ N.C. App. ___, 789

S.E.2d 568. Defendant raised no constitutional arguments in Lindsey I, nor did this

Court’s opinion address any constitutional issues.       See id.   This case was not

remanded for what has now become known as a “Grady hearing” but only for a new

hearing to address the statutory issues. See id.

      On 30 March 2015, the United States Supreme Court issued its per curiam

ruling in Grady v. North Carolina, holding that SBM is a search under the Fourth

Amendment and therefore is subject to the constitutional requirements of the Fourth



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Amendment. See Grady, 135 S.Ct. 1368, 1371, 191 L. Ed. 2d 459 (2015) (per curiam).

In Grady, the defendant had argued that SBM “would violate his Fourth Amendment

right to be free from unreasonable search and seizures.” Id., 135 S.Ct. at 1369, 191

L. E. 2d at 460. Our Court stated,

                     The United States Supreme Court held that despite
             its civil nature, North Carolina’s SBM program “effects a
             Fourth Amendment search.” Grady v. North Carolina, 575
             U.S. ___, ___, 191 L. Ed. 2d 459, 462 (2015) (per curiam).
             However, since “[t]he Fourth Amendment prohibits only
             unreasonable searches[,]” the Supreme Court remanded
             the case for North Carolina courts to “examine whether the
             State's monitoring program is reasonable—when properly
             viewed as a search . . . . ” Id. at ___,191 L. Ed. 2d at 463.

State v. Grady, ___ N.C. App. ___, ___ S.E.2d ___, *2-3 (May 15, 2018) (COA17-12).

      Defendant’s hearing on remand, as directed by Lindsey I, was held on 8

November 2016, over a year after the United States Supreme Court’s ruling in Grady.

See generally Grady, 135 S.Ct. 1368, 191 L. Ed. 2d 459. At the hearing on remand,

defendant raised no constitutional objection to SBM based upon the Fourth

Amendment or Grady. On or about 10 November 2016, the trial court again ordered

defendant to enroll in SBM. Defendant appeals.

                          II.    Petition for Writ of Certiorari

      Although defendant timely filed a written notice of appeal after entry of the

SBM order, he failed to specifically designate this Court as the court he was appealing

to in the notice. Because of the defect in his notice of appeal, defendant filed a petition



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for certiorari with this Court due to his failure to designate this Court as the court he

was appealing to in his notice of appeal. The State has claimed no prejudice on appeal

due to defendant’s failure to note he was appealing to this Court. In our discretion,

we grant defendant’s petition for certiorari to ensure his appeal is properly before us.

See generally Luther v. Seawell, 191 N.C. App. 139, 142, 662 S.E.2d 1, 3 (2008) (“This

Court does have the authority pursuant to North Carolina Rule of Appellate

Procedure 21(a)(1) to treat the purported appeal as a petition for writ of certiorari

and grant it in our discretion.” (citations and quotation marks omitted)).

                                     III.    Waiver

      Defendant raises only one issue on appeal and argues that “[t]he [S]tate failed

to meet its burden of proving that imposing SBM on Mr. Lindsey is reasonable

under the Fourth Amendment.” The State contends that defendant has waived his

Fourth Amendment argument by his failure to raise the issue. The State, citing State

v. Stroessenreuther, ___ N.C. App. ___, ___793 S.E.2d 734 (2016), argues that it has

the burden to establish the reasonableness of SBM under the Fourth Amendment

only if the defendant raises the issue at the hearing. Stroessenreuther states “[t]rial

courts can (and must) consider a Fourth Amendment challenge to satellite-based

monitoring when a defendant raises it.” Id. at ___, 793 S.E.2d at 735 (emphasis

added). The State contends that “[i]f this statement in Stroessenreuther is to have

any meaning or application at all, then unless the defendant argues that SBM



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enrollment violates his Fourth Amendment rights to be free from unreasonable

searches, the trial court need not conduct a reasonableness inquiry.”    Although

“this statement in Stroessenreuther” was not the holding, it is a correct statement of

the law. See id. Constitutional issues must be asserted by the defendant in other

contexts, and this rule has equal application in a SBM hearing.       See e.g., State v.

Valentine, 357 N.C. 512, 525, 591 S.E.2d 846, 857 (2003) (“Defendant’s argument is

based upon his Fifth Amendment right to silence and his Sixth Amendment right to

counsel. However, defendant did not raise these constitutional concerns before

reaching this Court. The failure to raise a constitutional issue before the trial court

bars appellate review. Based upon our long-established law, defendant has waived

this issue, and he is barred from raising it on appellate review before this Court.”

(citations omitted)).

      Defendant argues in his reply brief that the Fourth Amendment was implicitly

raised, contending,

              “[t]he rule that constitutional questions must be raised
             first in the trial court is based upon the reasoning that the
             trial court should, in the first instance, “pass[] on” the
             issue.” State v. Kirkwood, 229 N.C. App. 656, 665, 747
             S.E.2d 730, 737 (quoting State v. Tirado, 358 N.C. 551, 571,
             599 S.E.2d 515, 529 (2004)), appeal dismissed, 367 N.C.
             277, 752 S.E.2d 487 (2013). Consequently, when the record
             shows that “the trial court addressed and ruled upon” a
             constitutional issue, the “issue is properly before this
             Court” for review, despite any possible default by the
             appellant in preserving the issue. Id. at 665–66, 747
             S.E.2d at 737; accord In re Hall, 238 N.C. App. 322, 329


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             n.2, 768 S.E.2d 39, 44 n.2 (2014) (“[S]ince the record
             supports a determination that the trial court reviewed and
             denied petitioner’s ex post facto argument [regarding sex
             offender registration], we will review petitioner’s
             contentions on appeal.”); State v. Woodruff, No. COA13–
             812, 2014 WL 218397, at *1 (N.C. Ct. App. Jan. 21, 2014)
             (unpublished) (reviewing double jeopardy claim, despite
             defendant’s failure to “explicit[ly] mention” issue at trial,
             when “trial court possibly addressed and ruled upon”
             issue). Here, as in Kirkwood, Hall, and Woodruff, Mr.
             Lindsey’s Grady argument is “properly before this Court”
             for review because the trial court, consistent with the
             fundamental goal of Rule 10, “addressed and ruled upon”
             the issue in the first instance. Kirkwood, 229 N.C. App. at
             665–66, 747 S.E.2d at 737. The state’s waiver argument
             should be rejected.

In addition, defendant has requested we invoke Rule 2 of the Rules of Appellate

Procedure to consider his constitutional issue.

      This Court addressed a similar situation recently in State v. Bursell, ___ N.C.

App. ___, ___, 813 S.E.2d 463 (2018). In Bursell, on 10 August 2016, the trial court

ordered defendant to enroll in lifetime SBM following his guilty plea and sentencing

for statutory rape and indecent liberties. ___ N.C. App. at ___, 813 S.E.2d at 464. On

appeal, the defendant raised a constitutional argument based upon the Fourth

amendment and Grady. Id. at ___, 813 S.E.2d at 465. The State contended that the

constitutional issue was not preserved for review because “although defendant

objected at sentencing to the orders of registration and SBM, . . . he neither referenced

Grady nor “raised any objection that the imposition of SBM effected an unreasonable




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search in violation of the Fourth Amendment[.]” Id. at ___, 813 S.E.2d at 465 (ellipses

and brackets omitted).

      The Bursell Court noted that

                    generally, constitutional errors not raised by
             objection at trial are deemed waived on appeal. However,
             where a constitutional challenge not clearly and directly
             presented to the trial court is implicit in a party’s argument
             before the trial court, it is preserved for appellate review.

Id. at ___ 813 S.E.2d at 465 (citations, quotation marks, and brackets omitted). After

reviewing the transcript of the SBM hearing, this Court determined that it was

             readily apparent from the context that his objection was
             based upon the insufficiency of the State’s evidence to
             support an order imposing SBM, which directly implicates
             defendant’s rights under Grady to a Fourth Amendment
             reasonableness determination before the imposition of
             SBM.

Id. at ___ 813 S.E.2d at 467.

      We have also reviewed the transcript of the SBM hearing in this case, as

compared to the portions of the transcript noted in Bursell, and even considering this

case in accord with Bursell, here defendant simply did not raise any constitutional

objection, either explicity or implicitly. In Bursell, the SBM hearing was the initial

hearing held immediately after sentencing. Id. at ___, 813 S.E.2d at 464. Here, the

SBM hearing was held based upon this Court’s directive in Lindsey I, where we

remanded because the trial court had not made an explicit determination “that

defendant requires the highest possible level of supervision and monitoring” and


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because “the court did not mark a box in paragraph 4 of the ‘Findings’ section on the

AOC–CR–616 order form to indicate the basis for its decision to place defendant on

satellite-based monitoring.”         Lindsey I, ___ N.C. App. ___, 789 S.E.2d 568, *1-7

(quotation marks omitted). And on remand, the State and trial court held a hearing

as directed by Lindsey I where defendant did not -- even indirectly -- raise any

constitutional argument regarding the reasonableness of SBM under the Fourth

Amendment or Grady.

       At the beginning of the hearing, the prosecutor called the matter for a SBM

hearing and defendant agreed “this is a call-back hearing[:]”

                      MS. HAWKINS: William Lindsey, number 207 on
               the calendar he is on for a Satellite Base Monitoring
               hearing.
                      In Mr. Lindsey’s hearing I have my probation officer
               here. I believe for purposes of time that the defendant will
               stipulate to the letter and to the service of that letter, and
               that he did indeed receive that letter; is that correct, Mr.
               Wilson?

                     MR. WILSON: Yes, your Honor, this is a call-back
               hearing.1




1 In Lindsey I, this Court noted, “The trial court held a ‘bring-back hearing’ on 14 July 2015 to
determine defendant’s eligibility for satellite-based monitoring. . . . When conducting a bring-back
hearing under N.C. Gen. Stat. § 14-208.40B(c), the trial court is not bound by the DAC’s risk
assessment when assessing whether a defendant requires the highest possible level of supervision and
monitoring.” Lindsey I, ___ N.C. App. ___, 789 S.E.2d at 568, *2-4. Although defendant’s counsel
referred to it as a “call-back” hearing instead of a “bring back” hearing, his meaning is obvious and
this hearing before the trial court was actually the “bring back” hearing on remand.


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                                         Opinion of the Court



With no further discussion of the purpose of the hearing, the State presented its

evidence.      The hearing was very brief and no evidence regarding a Fourth

Amendment search analysis was presented. The State called only one witness, a

probation officer, not defendant’s, and admitted only one exhibit, a Static 99 risk

assessment. Consistent with the directive of this Court in Lindsey I, the main focus

of the hearing was whether defendant should be subject to SBM as “the highest

possible level of supervision and monitoring, N.C. Gen. Stat. § 15A-208.40B(c)[.]” Id.

at ___ 789 S.E.2d 568, * 1-2.

        After the testimony of the probation officer, the trial court asked to review “the

investigative file that the DA may have in their possession in regards to the

background, more detailed background of the charges and disposition[,]” and

defendant had no objection to the trial court’s review of this file. The trial court then

adjourned the hearing until two days later to have “the opportunity to look at the

investigative file” before making its decision. We are uncertain of the purpose of the

trial court’s review of the entire investigative file from defendant’s 2009 prosecution,

since it is well-established that SBM decisions must be based only upon the elements

of the crime for which the defendant was convicted, whether by plea or trial, and not

upon the facts alleged by the State in its prosecution.2 See State v. Santos, 210 N.C.

App. 448, 453, 708 S.E.2d 208, 212 (2011) (“[I]n State v. Davison, . . . we held that


2We also note that the State’s investigative file -- which was apparently crucial to the trial court’s
decision -- is not in the record before us, and defendant raises no argument regarding use of this file.

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when making a determination pursuant to N.C.G.S. § 14–208.40A, the trial court is

only to consider the elements of the offense of which a defendant was convicted and

is not to consider the underlying factual scenario giving rise to the conviction.”

(quotation marks omitted); see also State v. Davison, 201 N.C. App. 354, 364, 689

S.E.2d 510, 517 (2009) (“The General Assembly’s repeated use of the term ‘conviction’

compels us to conclude that, when making a determination pursuant to N.C.G.S. §

14–208.40A, the trial court is only to consider the elements of the offense of which a

defendant was convicted and is not to consider the underlying factual scenario giving

rise to the conviction. In the case before us, the trial court erred when making its

determinations by considering Defendant’s plea colloquy in addition to the mere fact

of his conviction.”).

       But whatever the purpose of the trial court’s review of the file, a file from a

2009 prosecution would not contain the information needed for a Grady hearing. Yet

the trial court used this information, as well as evidence from the hearing, to

determine that defendant should be enrolled in SBM. In announcing its ruling, the

trial court specifically referred to “the investigative report” at least twice and noted,

“As I said the Court has reviewed the investigative report and indicated a series of

sexual indiscretions with this minor age child. The defendant was aware of her age,

but continued to take -- have sexual activities with her.”           `The trial court’s

“ADDITIONAL FINDINGS” attached to the order were:



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                                  Opinion of the Court



             1.    The defendant, when he became aware that the
             victim was under age, continued his sexual activity with
             her.

             2.    At the time of conviction, the defendant had 9 prior
             record points and was record level IV.

             3.    It is reasonable for public safety and justified that
             the defendant be placed on satellite based monitoring for a
             period of 5 years.

             4.    The defendant is be to given credit toward that 5
             year period for any previous time that the defendant has
             been subject to satellite based monitoring.

None of the additional findings address a Grady analysis or issues under the Fourth

Amendment, but instead only address the trial court’s reasons for requiring SBM as

“the highest possible level of supervision and monitoring.” Thus, the constitutional

issues related to Grady were neither raised by defendant nor ruled upon by the trial

court as defendant contends, so this issue has not been preserved for appellate review.

      Defendant’s request for review under Rule 2 remains to be considered. Again,

Bursell is helpful to our analysis. In Bursell, this Court determined the Grady issue

had been implicitly addressed in the trial court and was preserved. ___ N.C. App. at

___, 813 S.E.2d at 466. But the Court also noted that “[a]ssuming, arguendo, this

objection was inadequate to preserve a constitutional Grady challenge for appellate

review, in our discretion we would invoke Rule 2 to relax Rule 10’s issue-preservation

requirement and review its merits.” Id. at 466–67. The primary reason the Bursell




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                                   Opinion of the Court



Court would have invoked rule 2 was that “the State here concedes reversible error.”

Id. at ___ 813 S.E.2d at 467. Here, the State does not concede error.

      In State v. Bishop, this Court noted that the defendant’s Grady argument from

his SBM hearing was also not preserved:

             Indeed, Bishop concedes that the argument he seeks to
             raise is procedurally barred because he failed to raise it in
             the trial court. We recognize that this Court previously has
             invoked Rule 2 to permit a defendant to raise an
             unpreserved argument concerning the reasonableness of
             satellite-based monitoring. But the Court did so in Modlin
             because, at the time of the hearing in that case, neither
             party had the benefit of this Court’s analysis in Blue and
             Morris. In Blue and Morris, this Court outlined the
             procedure defendants must follow to preserve a Fourth
             Amendment challenge to satellite-based monitoring in the
             trial court.
                     This case is different from Modlin because Bishop’s
             satellite-based monitoring hearing occurred several
             months after this Court issued the opinions in Blue and
             Morris. Thus, the law governing preservation of this issue
             was settled at the time Bishop appeared before the trial
             court. As a result, the underlying reason for invoking Rule
             2 in Modlin is inapplicable here and we must ask whether
             Bishop has shown any other basis for invoking Rule 2.
                     He has not. Bishop’s argument for invoking Rule 2
             relies entirely on citation to previous cases such as Modlin,
             where the Court invoked Rule 2 because of circumstances
             unique to those cases. In the absence of any argument
             specific to the facts of this case, Bishop is no different from
             countless other defendants whose constitutional
             arguments were barred on direct appeal because they were
             not preserved for appellate review.

State v. Bishop, ___ N.C. App. ___, ___, 805 S.E.2d 367, 369–70 (2017) (citations,

quotation marks, and brackets omitted), disc. review denied, ___ N.C. ___, 811 S.E.2d


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                                   Opinion of the Court



159 (2018).

      This case differs from other cases in which Rule 2 review has been allowed only

in its procedural posture, and that difference does not favor defendant. The law

regarding Grady was well-established by the time of defendant’s bring-back hearing,

but he made no constitutional objection. See generally Grady, 135 S.Ct. 1368, 191 L.

Ed. 2d 459. The State and trial court proceeded with the hearing as directed by this

Court in Lindsey I.     Defendant had the opportunity to raise his constitutional

argument, but he did not take it. We decline to exercise our discretion under Rule 2

to consider defendant’s constitutional argument. If we allowed review in this case,

this would essentially allow defendants to sit silently in the SBM hearing while the

State and trial court address the case without knowing what issues defendant may

raise on appeal and without giving either the opportunity to address them. Although

the State has the burden of proof of reasonableness of SBM under the Fourth

Amendment as directed by Grady, see generally Grady, 135 S.Ct. 1368, 191 L. Ed. 2d

459, the defendant still must raise the constitutional objection so the State will be on

notice it must present evidence to meet its burden.

                                  IV.     Conclusion

      We decline to grant review under Rule 2 to consider defendant’s constitutional

argument which he waived. As defendant makes no other argument regarding the

SBM order, we affirm.



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AFFIRMED.

Judges ZACHARY and ARROWOOD concur.




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