State v. Bursell, 372 N.C. 196

Background

Defendant Joseph Bursell pled guilty to statutory rape and taking indecent liberties with a minor and was sentenced on August 10, 2016.
At sentencing the trial court found an aggravated sexually violent offense and ordered lifetime sex-offender registration and lifetime satellite-based monitoring (SBM) upon release.
Defense counsel objected at sentencing, challenging sufficiency of evidence for lifetime registration and requesting further evidentiary showing for SBM, but did not expressly invoke the Fourth Amendment, Grady, or reasonableness/privacy arguments.
The State conceded that, if preserved, the SBM order would be reversible under Grady v. North Carolina and that the SBM order should be vacated for a reasonableness determination.
The Court of Appeals (divided) held the constitutional challenge was preserved or, alternatively, invoked Appellate Rule 2 to reach the unpreserved Fourth Amendment issue and vacated the SBM order without prejudice.
The North Carolina Supreme Court considered whether Bursell preserved his Fourth Amendment challenge and whether the Court of Appeals properly invoked Rule 2; it reversed in part and affirmed in part, ultimately vacating the SBM order under Rule 2.

Issues

Issue	State's Argument	Bursell's Argument	Held
Whether defendant preserved a Fourth Amendment challenge to lifetime SBM at sentencing	Objected only to evidentiary sufficiency; did not preserve a constitutional Grady challenge	Counsel’s objections preserved constitutional concerns and asked for record preservation	Not preserved: counsel’s objections challenged sufficiency of evidence, not Fourth Amendment reasonableness; waiver under Rule 10(a)(1)
Whether the Court of Appeals properly invoked Appellate Rule 2 to reach the unpreserved constitutional issue	Rule 2 should not be used routinely; but State conceded reversible error	Rule 2 appropriate because substantial right (Fourth Amendment) affected and State conceded error	Affirmed: invoking Rule 2 was not an abuse of discretion given State’s concession and substantial right involved
Whether the trial court erred by imposing lifetime SBM without determining Fourth Amendment reasonableness	If preserved, State conceded Grady error and remand required	SBM order effects a Fourth Amendment search and must be assessed for reasonableness	SBM order vacated without prejudice to the State to seek SBM again with appropriate proceedings
Remedy and disposition	Vacate and remand for reasonableness determination if objection preserved	Vacate SBM now because the constitutional right is substantial and State conceded error	Result: Supreme Court reverses Court of Appeals on preservation, affirms its Rule 2 invocation, and remands with SBM order vacated without prejudice

Key Cases Cited

Grady v. North Carolina, 135 S. Ct. 1368 (2015) (holding SBM effects a Fourth Amendment search requiring reasonableness)
Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191 (2008) (appellate rules are mandatory and failure to comply may impede justice)
State v. Hart, 361 N.C. 309 (2007) (Rule 2 must be applied cautiously; appellate rules are mandatory)
State v. Bell, 359 N.C. 1 (2004) (constitutional error not raised at trial is waived on appeal)
State v. Wiley, 355 N.C. 592 (2002) (failure to bring constitutional issue to trial court waives appellate review)
State v. Valentine, 357 N.C. 512 (2003) (constitutional issues must be raised at trial to preserve appeal)
State v. Smith, 352 N.C. 531 (2000) (defendant waived due process claim by not raising it as constitutional error at trial)
State v. Benson, 323 N.C. 318 (1988) (party may not change theories on appeal from those argued at trial)
State v. McPhail, 329 N.C. 636 (1991) (defendant must raise same constitutional theory at trial and on appeal)
State v. Campbell, 369 N.C. 599 (2017) (Rule 2 invocation is discretionary and examined for abuse of discretion)
State v. Meadows, 371 N.C. 742 (2018) (specificity in objections discourages gamesmanship)
State v. Canady, 330 N.C. 398 (1991) (parties cannot allow errors at trial and then assert them on appeal)
Steingress v. Steingress, 350 N.C. 64 (1999) (review of Rule 2 invocation is for abuse of discretion)