IN THE SUPREME COURT OF NORTH CAROLINA
2021-NCSC-116
No. 233A20
Filed 24 September 2021
STATE OF NORTH CAROLINA
v. JOHNATHAN RICKS
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 271 N.C. App. 348, 843 S.E.2d 652 (2020), finding no error in
part and vacating in part a judgment entered on 17 January 2019 by Judge Claire V.
Hill in Superior Court, Harnett County. Heard in the Supreme Court on 26 April
2021.
Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State-appellant.
Kimberly P. Hoppin for defendant-appellee.
NEWBY, Chief Justice.
¶1 In this case we decide whether the Court of Appeals erred by allowing
defendant’s petition for writ of certiorari and invoking Rule 2 to review defendant’s
unpreserved challenge to the trial court’s orders imposing lifetime satellite-based
monitoring (SBM). The North Carolina Rules of Appellate Procedure require that a
party seeking appellate review of an SBM order make an objection before the trial
court and file a written notice of appeal. A writ of certiorari and invocation of Rule 2 STATE V. RICKS
Opinion of the Court
cannot be used to circumvent the Rules of Appellate Procedure. Rather, an appellate
court may only consider certiorari when the petition shows merit, meaning that the
trial court probably committed error at the hearing. Further, an appellate court may
only invoke Rule 2 when injustice appears manifest to the court or when the case
presents significant issues of importance in the public interest. Here the Rules of
Appellate Procedure bar defendant’s appeal. Defendant failed to demonstrate any
manifest injustice sufficient to warrant invoking Rule 2, and his petition to the Court
of Appeals showed no merit. Therefore, the Court of Appeals abused its discretion
when it allowed defendant’s petition for writ of certiorari and invoked Rule 2 to review
the SBM orders. Accordingly, we reverse the Court of Appeals’ decision vacating the
trial court’s orders imposing SBM.
¶2 On 17 January 2019, a jury convicted defendant of three counts of statutory
rape of a child by an adult, two counts of statutory sex offense with a child, and three
counts of taking indecent liberties with a child. Directly after sentencing in the
criminal case, the trial court conducted a civil hearing to address SBM and found that
defendant’s convictions were reportable under N.C.G.S. § 14-208.6(4) (2019).1 The
1 “When an offender is convicted of a reportable conviction as defined by [N.C.]G.S.
[§] 14-208.6(4), . . . . the court shall determine whether the offender’s conviction places the offender in one of the categories described in [N.C.]G.S. [§] 14-208.40(a), and if so, shall make a finding of fact of that determination, specifying whether (i) the offender has been classified as a sexually violent predator pursuant to [N.C.]G.S. [§] 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense STATE V. RICKS
trial court determined that all of defendant’s offenses were sexually violent and
involved the physical, mental, or sexual abuse of a minor. The trial court also found
that the statutory rape and statutory sex offense convictions were aggravated
offenses. The trial court issued separate SBM orders for defendant’s various
convictions. Based upon defendant’s indecent liberties convictions, the trial court
ordered defendant to comply with the sex offender registry for thirty years upon his
release from prison and, following a risk assessment, to return to the trial court for a
later determination on SBM.2 Additionally, based upon defendant’s other convictions,
which were aggravated offenses, the trial court ordered lifetime sex offender
registration and SBM pursuant to N.C.G.S. § 14-208.40A(c) (2019).3
¶3 Though defendant gave oral notice of appeal from his criminal convictions, he
made no objection to the imposition of SBM and never filed a written notice of appeal
of the SBM orders. After filing the record in the Court of Appeals for his criminal
appeal, defendant filed a petition for writ of certiorari seeking review of the SBM
orders. The Court of Appeals unanimously held that defendant received a trial free
was a violation of [N.C.]G.S. [§] 14-27.23 or [N.C.]G.S. [§] 14-27.28, or (v) the offense involved the physical, mental, or sexual abuse of a minor.” N.C.G.S. § 14-208.40A(a)–(b) (2019). 2 “If the court finds that the offender committed an offense that involved the physical,
mental, or sexual abuse of a minor, . . . the court shall order that the Division of Adult Correction do a risk assessment . . . . and report the results to the court.” N.C.G.S. § 14-208.40A(d). 3 “If the court finds that the offender . . . has committed an aggravated offense, . . . the
court shall order the offender to enroll in [lifetime SBM].” N.C.G.S. § 14-208.40A(c). STATE V. RICKS
from prejudicial error. State v. Ricks, 271 N.C. App. 348, 364, 843 S.E.2d 652, 665
(2020). It reached a divided decision, however, on the SBM issue. Id. Despite
defendant’s fatal procedural errors, the Court of Appeals relied upon this Court’s
decision in State v. Bursell, 372 N.C. 196, 827 S.E.2d 302 (2019), and reached the
merits of defendant’s SBM challenge. Ricks, 271 N.C. App. at 361, 843 S.E.2d at 664.
It did so by allowing defendant’s petition for writ of certiorari and invoking Rule 2 of
the North Carolina Rules of Appellate Procedure. Id. at 358, 843 S.E.2d at 662. The
Court of Appeals then held that the trial court failed to conduct a reasonableness
hearing pursuant to this Court’s decision in State v. Grady, 372 N.C. 509, 831 S.E.2d
542 (2019), and vacated the SBM orders without prejudice. Ricks, 271 N.C. App. at
364, 843 S.E.2d at 665.
¶4 The dissent, however, would not have allowed defendant’s petition for writ of
certiorari because “[d]efendant ha[d] not demonstrated any prejudice to merit
issuance of the writ.” Id. at 368, 843 S.E.2d at 668 (Tyson, J., concurring in the result
in part and dissenting in part) (citing State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d
1, 9 (1959)). Further, the dissent would have refused to invoke Rule 2 because
defendant failed to show he is any “different from other defendants who failed to
preserve their constitutional arguments in the trial court, and because he ha[d] not
argued any specific facts that demonstrate manifest injustice.” Ricks, 271 N.C. App.
at 366, 843 S.E.2d at 666 (quoting State v. Bishop, 255 N.C. App. 767, 770, 805 S.E.2d STATE V. RICKS
367, 370 (2017)). According to the dissent, the trial court’s imposition of SBM did not
demonstrate manifest injustice because (1) “[d]efendant’s status does not fall within
the category of defendants at issue in Grady . . . , that is, recidivists who have
completed their sentence and are no longer under any State supervision”; (2)
defendant’s convictions “were reportable convictions pursuant to N.C.[G.S.]
§ 14-208.6”; (3) “[d]efendant’s convictions of statutory rape of a child by an adult and
statutory sex offense are sexually violent and aggravated offenses involving the
sexual abuse of a minor”; and (4) N.C.G.S. § 14-208.40A(c), which has “withstood and
survived constitutional scrutiny,” requires “defendants convicted of sexually violent
offenses or aggravated offenses to be subject to [SBM].” Ricks, 271 N.C. App. at 367,
843 S.E.2d at 667. As such, the dissent noted that “[d]efendant’s failure to appeal
from or to preserve his purported challenge to his SBM order[s] on constitutional
grounds mandates dismissal.” Id. at 369, 843 S.E.2d at 668. The State appealed to
this Court based upon the dissenting opinion at the Court of Appeals.
¶5 We review the Court of Appeals’ decision to allow a petition for writ of certiorari
and invoke Rule 2 for an abuse of discretion. Bursell, 372 N.C. at 201, 827 S.E.2d at
306; see Grundler, 251 N.C. at 189, 111 S.E.2d at 9 (holding that certiorari is a
discretionary writ). A party seeking appellate review of a trial court order in a civil
proceeding must make a timely objection and file a notice of appeal. “In order to
preserve an issue for appellate review, a party must have presented to the trial court STATE V. RICKS
a timely . . . objection . . . .” N.C. R. App. P. 10(a)(1). “It is well settled that an error,
even one of constitutional magnitude, that [the] defendant does not bring to the trial
court’s attention is waived and will not be considered on appeal.” Bursell, 372 N.C. at
199, 827 S.E.2d at 305 (quoting State v. Bell, 359 N.C. 1, 28, 603 S.E.2d 93, 112
(2004)). Rule 2 allows an appellate court to suspend the Rules of Appellate Procedure
and reach the merits of an unpreserved issue “in a case pending before [the court].”
N.C. R. App. P. 2. An appellate court, however, may only invoke Rule 2 “in exceptional
circumstances” when “injustice . . . appears manifest to the [c]ourt” or when the case
presents “significant issues of importance in the public interest.” State v. Hart, 361
N.C. 309, 315–16, 644 S.E.2d 201, 205 (2007) (quoting Steingress v. Steingress, 350
N.C. 64, 66, 511 S.E.2d 298, 299–300 (1999)). Notably, “precedent cannot create an
automatic right to review via Rule 2.” State v. Campbell, 369 N.C. 599, 603, 799
S.E.2d 600, 603 (2017). “[W]hether an appellant has demonstrated that his matter is
the rare case meriting suspension of our appellate rules,” rather, “is always a
discretionary determination to be made on a case-by-case basis.” Id.
¶6 Further, a party appealing an order “rendered in a civil action” must “fil[e]
notice of appeal with the clerk of superior court and serv[e] copies thereof upon all
other parties” in a timely manner. N.C. R. App. P. 3(a). The Court of Appeals thus
does not have jurisdiction to review a trial court’s SBM order unless the party seeking
review complies with Rule 3(a) by filing a written notice of appeal. See State v. STATE V. RICKS
Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010) (stating that the SBM program
is a “civil, regulatory scheme”); Crowell Constructors, Inc. v. State ex rel. Cobey, 328
N.C. 563, 563–64, 402 S.E.2d 407, 408 (1991) (holding that when “the record does not
contain a notice of appeal in compliance with Rule 3, the Court of Appeals ha[s] no
jurisdiction of the appeal”). Though the Court of Appeals may issue a writ of certiorari
to review a trial court’s order “when the right to prosecute an appeal has been lost by
failure to take timely action,” N.C. R. App. P. 21(a)(1), the petition must show “merit
or that error was probably committed below,” Grundler, 251 N.C. at 189, 111 S.E.2d
at 9 (citing In re Snelgrove, 208 N.C. 670, 672, 182 S.E. 335, 336 (1935)). “A writ of
certiorari is not intended as a substitute for a notice of appeal” because such a practice
would “render meaningless the rules governing the time and manner of noticing
appeals.” Bishop, 255 N.C. App. at 769, 805 S.E.2d at 369.
¶7 The Court of Appeals majority relied upon our decision in Bursell, but that case
is distinguishable. There the defendant filed a timely notice of appeal challenging the
trial court’s imposition of lifetime SBM on Fourth Amendment grounds. Bursell, 372
N.C. at 198, 827 S.E.2d at 304. The defendant, however, had failed to properly object
to the SBM order and thus did not preserve his ability to raise that issue on appeal.
Id. at 200, 827 S.E.2d at 305. The Court of Appeals invoked Rule 2 to review the
defendant’s unpreserved argument. Id. This Court recognized that the Court of
Appeals examined the specific circumstances of that individual case: STATE V. RICKS
The Court of Appeals first noted that a constitutional right, such as the Fourth Amendment right implicated here, is a substantial right. The Court of Appeals deemed the invocation of Rule 2 appropriate “when considering 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 (emphasis added) (quoting State v. Bursell, 258 N.C.
App. 527, 533, 813 S.E.2d 463, 467 (2018)). This Court then held that “the Court of
Appeals did not abuse its discretion by invoking Rule 2” because “the State concede[d]
that the trial court committed error relating to a substantial right.” Bursell, 372 N.C.
at 201, 827 S.E.2d at 306.
¶8 A case whose procedural posture is more aligned with the present case is
Bishop. There the defendant failed to preserve for appeal his constitutional challenge
to the imposition of SBM and failed to timely appeal the trial court’s SBM order.
Bishop, 255 N.C. App. at 768, 805 S.E.2d at 369. The defendant then asked the Court
of Appeals “to take two extraordinary steps to reach the merits, first by issuing a writ
of certiorari to hear th[e] appeal, and then by invoking Rule 2 . . . to address [the]
unpreserved constitutional argument.” Id. at 768–69, 805 S.E.2d at 369. The Court
of Appeals held the defendant failed to show that his argument was “meritorious or
that the trial court probably committed error.” Id. at 769, 805 S.E.2d at 369. The
Court of Appeals declined to invoke Rule 2 because the defendant was “no different STATE V. RICKS
from other defendants who failed to preserve their constitutional arguments” and
failed to argue “any specific facts” to demonstrate that invoking Rule 2 would prevent
“manifest injustice.” Id. at 770, 805 S.E.2d at 370. The Court of Appeals then noted
that the defendant could not prevail on his SBM challenge “without the use of Rule
2.” Id. Thus, that court “decline[d] to issue a writ of certiorari to review th[e]
unpreserved argument on direct appeal.” Id.
¶9 The question here is whether the Court of Appeals abused its discretion when
it allowed defendant’s petition for writ of certiorari and invoked Rule 2 to reach the
merits of defendant’s unpreserved challenge to the SBM orders. Notably, this Court’s
decision in Bursell rested heavily upon the State’s concession that the trial court
committed error. The State in the present case, however, has made no such
concession. Further, unlike the defendant in Bursell, defendant here failed to give
written notice of appeal pursuant to Rule 3(a). As such, the present case is
distinguishable from Bursell.
¶ 10 Rather, like the defendant in Bishop, defendant here committed two fatal
procedural errors and failed to show that a refusal to invoke Rule 2 would result in
manifest injustice. The trial court appropriately followed N.C.G.S. § 14-208.40A(c) by
ordering lifetime SBM due to defendant’s status as an aggravated offender. Absent
an objection, the trial court was under no constitutional requirement to inquire into
the reasonableness of imposing SBM. Defendant is no different from other defendants STATE V. RICKS
who failed to preserve their constitutional arguments. The Court of Appeals should
have declined to invoke Rule 2.
¶ 11 Without the use of Rule 2, defendant’s challenge to the SBM orders is meritless
as it is barred by Rule 10(a)(1). Defendant’s petition thus failed to show merit or that
error was probably committed below. An invocation of Rule 2 and writ of certiorari
cannot substitute for a timely objection and notice of appeal. By allowing defendant’s
petition for writ of certiorari and invoking Rule 2 to review defendant’s challenge to
the SBM orders, the Court of Appeals abused its discretion. Accordingly, we reverse
the Court of Appeals’ decision to vacate the trial court’s orders imposing SBM.
REVERSED. STATE V. RICKS
Hudson, J., dissenting
Justice HUDSON dissenting.
¶ 12 There is no dispute that the Court of Appeals could only reach the merits of
this case to determine whether the SBM order was constitutional as applied to
defendant if it allowed defendant’s petition for a writ of certiorari and invoked Rule
2, given defendant’s failure to properly object and file a written notice of appeal of the
SBM order. The only question is whether the Court of Appeals’ choice both to allow
defendant’s petition for a writ of certiorari and to invoke Rule 2 was an abuse of its
discretion. Because I would hold that the Court of Appeals did not abuse its
discretion, I respectfully dissent.
¶ 13 In order for the Court of Appeals to exercise its discretion to allow a writ of
certiorari, “[a] petition for [a] writ [of certiorari] must show merit or that error was
probably committed below.” State v. Grundler, 251 N.C. 177, 189 (1959). Likewise,
Rule 2 may be “applied in the discretion of the Court . . . to consider, in exceptional
circumstances, significant issues of importance in the public interest, or to prevent
injustice which appears manifest to the Court.” Steingress v. Steingress, 350 N.C. 64,
66 (1999) (citing Blumenthal v. Lynch, 315 N.C. 571, 578 (1986)). “[A] decision to
invoke Rule 2 and suspend the appellate rules ‘is always a discretionary
determination.’ ” State v. Bursell (Bursell II), 372 N.C. 196, 201 (2019) (quoting State
v. Campbell, 369 N.C. 599, 603 (2017)). “A court should consider whether invoking STATE V. RICKS
Rule 2 is appropriate in light of the specific circumstances of individual cases and
parties, such as whether substantial rights of an appellant are affected.” Id. at 200
(cleaned up) (quoting Campbell, 369 N.C. at 603).
¶ 14 Here, the Court of Appeals noted that defendant’s Fourth Amendment right
implicated by the SBM order was a substantial right. State v. Ricks, 271 N.C. App.
348, 360 (2020) (citing Bursell II, 372 N.C. at 201). The court also looked at the
specific circumstances of the case and parties involved, noting that “[d]efendant here
was convicted of three counts of statutory rape of a child, two counts of committing a
statutory sex offense with a child, and three counts of taking indecent liberties with
a child when he, at 21 years old, had sex with two 12-year-old girls,” that defendant
had committed an aggravated offense, and that the State and trial court “had the
benefit of even more guidance regarding the State’s burden” to show the
reasonableness of imposing a lifetime SBM order “than in Bursell” itself. Id. In
addition, the Court of Appeals noted that “the trial court . . . summarily concluded
that SBM should be imposed, without making any findings regarding the
reasonableness of the search and without any evidence from the State.” Id. Having
considered these facts, the Court of Appeals determined in its discretion that it would
invoke Rule 2 to reach the merits of this case to prevent the injustice that would be
manifest if defendant were to be subjected to an unconstitutional lifetime SBM order.
See id. at 361. STATE V. RICKS
¶ 15 In its analysis, the Court of Appeals tied its considerations to this Court’s
analysis in Bursell II which affirmed the Court of Appeals’ invocation of Rule 2 in
State v. Bursell (Bursell I), 258 N.C. App. 527 (2018), aff’d in part, rev’d in part, 372
N.C. 196 (2019). Id. at 359. The majority here concludes that Bursell II is
distinguishable from the facts of this case and determines that State v. Bishop, 255
N.C. App. 767 (2017), is “more aligned with the present case.” But the Court of
Appeals was very clear that, although the Bursell II analysis was “instructive,” the
factors examined in Bursell II by our Court were “not determinative in the exercise
of [its] discretion.”1 Id. It noted that the invocation of Rule 2 is a “discretionary and
fact-specific” determination that “[can]not [be] applied mechanically.” Id. (citing State
v. Campbell, 369 N.C. 599, 603 (2017)). Just as similarities to Bursell II do not “create
an automatic right to review via Rule 2,” Campbell, 369 N.C. at 603, likewise
differences between the cases do not automatically defeat the court’s ability to invoke
Rule 2.2 The invocation of Rule 2 “is always a discretionary determination” to be made
1 Indeed, the Court of Appeals acknowledged the same dissimilarity that my colleagues in the majority now emphasize to distinguish Bursell II from this case—that “[t]he State here has not, as it did in Bursell I, conceded that the trial court’s failure to conduct a hearing to determine the reasonableness of the search before imposing SBM constitutes error.” State v. Ricks, 271 N.C. App. 348, 361 (2020). 2 For this reason, I find the majority’s comparison to State v. Bishop, 255 N.C. App.
767, 770 (2017), no more persuasive than the Court of Appeals’ comparison to Bursell II. While other case law can certainly be helpful in guiding a court’s analysis and ensuring consistency in the exercise of discretion, the invocation of Rule 2 is a case-by-case determination which requires an appellate court to review the specific facts and circumstances presented in the case at bar. Comparison to the facts of other cases in the discretionary Rule 2 context is not dispositive. STATE V. RICKS
on a case-by-case basis. Ricks, 271 N.C. App. at 359 (quoting Bursell II, 372 N.C. at
201). I would conclude that the Court of Appeals here properly looked at the “specific
circumstances of individual cases and parties” involved, Bursell II, 372 N.C. at 200,
when it chose to exercise its discretion and invoke Rule 2.
¶ 16 My colleagues in the majority ultimately conclude that defendant “failed to
show that a refusal to invoke Rule 2 would result in manifest injustice.” In reaching
its conclusion that defendant has failed to show that the imposition of lifetime SBM
would result in manifest injustice, the majority points to the holding from the Court
of Appeals decision in Bishop that the majority states means “[a]bsent an objection,
the trial court was under no constitutional requirement to inquire into the
reasonableness of imposing [lifetime] SBM.” With all due respect, I note that the issue
here is not whether the inquiry was required, but whether the Court of Appeals
abused its discretion in deciding to address the issue at the time this case was heard
in 2020. At best, the law in this area was developing very quickly, leading to a lack of
clear guidance for practitioners.
¶ 17 At the time the Court of Appeals used its discretion to invoke Rule 2 in this
case, our appellate law arguably required that a trial court conduct a Grady hearing
to determine the constitutionality of ordering any defendant to enroll in the SBM
program and the law required that the State bear the burden of proving the
reasonableness under the Fourth Amendment of the SBM search. See, e.g., Grady v. STATE V. RICKS
North Carolina (Grady I), 575 U.S. 306, 310–11 (2015) (vacating the judgment of this
Court and remanding because “[t]he North Carolina courts did not examine whether
the State's monitoring program is reasonable” without creating subcategories of SBM
that might not require a Fourth Amendment search analysis); State v. Grady (Grady
II), 259 N.C. App. 664, 676 (2018) (“We reiterate the continued need for individualized
determinations of reasonableness at Grady hearings. . . . [T]he State failed to present
any evidence of its need to monitor defendant, or the procedures actually used to
conduct such monitoring in unsupervised cases. Therefore, the State failed to prove,
by a preponderance of the evidence, that lifetime SBM of defendant is a reasonable
search under the Fourth Amendment.”), aff’d as modified, State v. Grady (Grady III),
372 N.C. 509 (2019); State v. Griffin, 270 N.C. App. 98, 108–09 (2020) (“Our case law
is clear that the State has advanced legitimate interests in favor of SBM. . . . But, in
addition to showing valid objectives, the State bears the burden of proving the
reasonableness of a warrantless search which, in the context of SBM, includes the
burden of coming forward with some evidence that its SBM program assists in
apprehending sex offenders, deters or prevents new sex offenses, or otherwise
protects the public. The State’s failure to produce any evidence in this regard weighs
heavily against a conclusion of reasonableness.” (cleaned up) (quoting Grady III, 372
N.C. at 543–44)), review allowed, writ allowed, 854 S.E.2d 586 (N.C. Mar. 10, 2021);
State v. Gordon (Gordon I), 261 N.C. App. 247, 257 (2018) (“[T]he State has failed to STATE V. RICKS
meet its burden of showing that the implementation of [SBM] of this Defendant will
be reasonable . . . .”); State v. Greene, 255 N.C. App. 780, 782 (2017) (“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.
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.” (cleaned up)
(quoting Grady I, 575 U.S. at 310)).
¶ 18 At the Court of Appeals, the State argued that our Court’s decision in Grady
III did not apply to this case because defendant did not fall within the category of
defendants at issue in Grady III, namely: recidivists who have completed their
sentence and are no longer under State supervision. The Court of Appeals explained
in its opinion that it had already rejected this argument in Griffin where it concluded
that although the Grady III analysis “[did] not compel the result we must reach in
this case, its reasonableness analysis does provide us with a roadmap to get there.”
Ricks, 271 N.C. App. at 361 (quoting Griffin, 270 N.C. App. at 106). Thus, at the time
the Court of Appeals exercised its discretion to invoke Rule 2, the law arguably
required that the State present evidence of reasonableness and that the trial court
make findings of reasonableness to order lifetime SBM for defendants classified as STATE V. RICKS
aggravated offenders.3
¶ 19 In State v. Hilton, published on the same day as this opinion, the same majority
of the Court comprised here seeks to clarify the applicability of Grady III to
aggravated offenders by categorically holding—incorrectly, I believe—that “searches
effected by the imposition of lifetime SBM upon aggravated offenders are
reasonable.” State v. Hilton, ___ N.C. ___, ___, 2021-NCSC-115, ¶ 4.
The Hilton dissent, which I join fully, emphasizes why this holding improperly
disregards this Court’s recent precedent in Grady III (which held that “the extent of
a problem justifying the need for a warrantless search cannot simply be assumed,
instead, the existence of the problem and the efficacy of the solution need to be
demonstrated by the government,” 372 N.C. at 540) and strays beyond the specific
facts of the case to create a broader rule than those facts required. See Hilton, ___
N.C. at ___, 2021-NCSC-115, ¶¶ 68–80 (Earls, J., dissenting). Because Hilton was not
precedent when the Court of Appeals decided this case, though, it could not impact
the reasoning of that court below in invoking Rule 2, and therefore cannot influence
3 Besides Griffin, on which the Court of Appeals here expressly relied, in three other
cases decided since Grady III and prior to this one, the Court of Appeals applied Grady III to hold an SBM order was an unconstitutional search and in one case vacated and remanded the order to the trial court for a hearing on the reasonableness of the search under the Fourth Amendment. See State v. Hilton, ___ N.C. ___, ___, 2021-NCSC-115 (Appendix) (Earls, J., dissenting) (collecting cases). Although not binding on this Court, this precedent demonstrates both the reasonableness of the Court of Appeals’ exercise of its discretion and the likelihood of error or manifest injustice to the defendant here absent further review under Rule 2. STATE V. RICKS
our sole consideration here: whether, based on the precedent available at that time,
the Court of Appeals abused its discretion in doing so.
¶ 20 Given the state of the law at the time, I cannot conclude that the Court of
Appeals abused its discretion when it invoked Rule 2 to reach the merits of this case
where there was no hearing regarding the constitutionality of lifetime SBM and the
trial court imposed lifetime SBM—a never-ending warrantless search—without any
argument from the parties or evidence from the State.
¶ 21 I would hold that the Court of Appeals did not abuse its discretion when it
concluded that defendant had a meritorious claim and allowed defendant’s petition
for a writ of certiorari. Likewise, I would hold that the Court of Appeals did not abuse
its discretion when it concluded that invoking Rule 2 would prevent manifest
injustice. Accordingly, I respectfully dissent.
Justices ERVIN and EARLS join in this dissenting opinion.