Opinion
No. COA12–1228.
2013-05-7
STATE of North Carolina v. Derek Delvon TOWNSEND.
Attorney General Roy Cooper, by Assistant Attorney General Jodi Harrison, for the State. Public Defender Staples Hughes, by Assistant Public Defender Brendan O'Donnell for defendant-appellant.
Appeal by defendant from order entered 11 April 2012 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 22 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Jodi Harrison, for the State. Public Defender Staples Hughes, by Assistant Public Defender Brendan O'Donnell for defendant-appellant.
STEELMAN, Judge.
Defendant's assertions that Satellite Based Monitoring (SBM) is an unreasonable search and seizure, an ex post facto law, double jeopardy, and cruel and unusual punishment are without merit under controlling precedent.
I. Factual and Procedural Background
On 13 May 2004, Derek Delvon Townsend (defendant) pled guilty to second-degree rape and was sentenced to a term of 58 to 79 months imprisonment. Following defendant's release from prison, the trial court held a hearing to determine whether defendant should be enrolled in a SBM program. On 11 April 2012, the trial court entered an order requiring that defendant be enrolled in an SBM program for the remainder of his natural life.
Defendant appeals.
II. SBM as an Unreasonable Search and Seizure
In his first argument, defendant contends that the imposition of SBM violates his right to be free from unreasonable search and seizure under our federal and state constitutions. We disagree.
Defendant notes that in State v. Bowditch, 364 N.C. 335, 700 S.E.2d 1 (2010), the North Carolina Supreme Court “suggested” that SBM does not “unduly burden” Fourth Amendment rights. Defendant contends that the Supreme Court's observations regarding the application of the Fourth Amendment to SBM were dicta and are not controlling upon this Court. The defendant in State v. Martin, ––– N.C.App. ––––, 735 S.E.2d 238 (2012), made the same argument. We held that “[a]s the Fourth Amendment was one of the factors which the Supreme Court considered to support its conclusion of the punitive effect of SBM, ... this language would not be dicta.” Id. at ––––, 735 S.E.2d at 239 (citing Bowditch, 364 N.C. at 349–50, 700 S.E.2d at 11). This Court further stated that “even if we were to assume arguendo that the quoted language from Bowditch is dicta, we find the Supreme Court's reasoning in that case highly persuasive and would apply it here.” Id. at ––––, 735 S.E.2d at 239.
This argument is without merit.
III. SBM as an Ex Post Facto Law
In his second argument, defendant contends that the retroactive application of SBM to defendant would violate guarantees against ex post facto laws contained in the federal and state constitutions. We disagree.
We initially note that defendant failed to preserve this argument for appellate review by raising this constitutional issue before the trial court. See State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607 (2001) ( “Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.”). Therefore, the argument is waived and is dismissed. SeeN.C.R.App. P. 10(a)(1).
Even assuming arguendo that this argument had been preserved for appellate review, it is wholly without merit. The Supreme Court has held that “subjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution.” Bowditch, 346 N.C. at 352, 700 S.E.2d at 13.
This argument is without merit.
IV. SBM as Double Jeopardy
In his third argument, defendant contends that the imposition of SBM was in violation of his right to be free from double jeopardy. We disagree.
“As this Court has held that satellite-based monitoring does not constitute a punishment, it cannot constitute a violation of Defendant's right to be free from double jeopardy.” State v. Anderson, 198 N.C.App. 201, 204–05, 679 S.E.2d 165, 167 (2009), disc. review denied,364 N.C. 436, 702 S.E.2d 491 (2010).
This argument is without merit.
V. SBM as Cruel and Unusual Punishment
In his fourth argument, defendant contends that the imposition of SBM constitutes cruel and unusual punishment under federal and state constitutions. We disagree.
This Court rejected the identical argument in State v. Jarvis, –––N.C.App. ––––, ––––, 715 S.E.2d 252, 262 (2011). See also Bowditch, 364 N.C. at 352, 700 S.E.2d at 13 (“The SBM program ... was enacted with the intent to create a civil, regulatory scheme to protect citizens of our state from the threat posed by the recidivist tendencies of convicted sex offenders.”). We are bound by these decisions.
This argument is without merit.
DISMISSED IN PART, AFFIRMED IN PART. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).