April 2, 2019
From Anderson County J. Cordell Maddox, Jr., Circuit Court
Appellate Defender LaNelle Cantey DuRant and Appellate
Defender Joanna Katherine Delany, both of Columbia, for
Octavia Yvonne Wright, of the S.C. Department of Probation,
Parole and Pardon Services, of Columbia, for Respondent.
case reaches us by a circuitous route. Shawn Alan Mitchell
was convicted in 1999 of lewd act upon a child, an offense
now codified in section 16-3-655(C) of the South Carolina
Code (2015) as criminal sexual conduct (CSC) with a minor in
the third degree. See State v. Baker, 411 S.C. 583,
585 n.1, 769 S.E.2d 860, 862 n.1 (2015) (citing to S.C. Code
Ann. § 16-15-140 (2003), the code section in effect at
the time of Mitchell's offense). He was sentenced to five
years in prison and ordered to register as a sex offender
upon release. In 2001, Mitchell was convicted of failure to
register and sentenced to ninety days' imprisonment. In
2005, South Carolina enacted Jesse's Law, which provides
criteria for when a person on the sex offender registry can
be placed under electronic monitoring. S.C. Code Ann. §
23-3-540 (Supp. 2018). The portion of Jesse's Law
applicable to Mitchell is section 23-3-540(E), which states
electronic monitoring "must be ordered by the
court" if a defendant with a prior CSC first degree or
third degree conviction is later convicted of failure to
register. On May 17, 2012, Mitchell was convicted of failure
to register, second offense, and sentenced to one year in
prison. No part of the sentence was suspended nor did it
include any period of probation. On the same day, he pled
guilty to grand larceny and received a sentence suspended
upon two years' probation for that offense. In August
2014, his probation was extended two years.
November 17, 2014, Mitchell appeared pro se before the trial
court for a hearing on his alleged violation of his grand
larceny probation. At the hearing, the Department of
Probation, Parole, and Pardon Services (DPPPS), through
counsel, alerted the court that Mitchell's 2012 failure
to register conviction triggered Jesse's Law and required
him to be subject to lifetime electronic monitoring, which
due to oversight had not been ordered by the sentencing court
in 2012. Recognizing the gravity of the issue, the circuit
court ordered from the bench that the hearing be continued so
Mitchell could obtain counsel. However, the next day the
circuit court, no doubt working its way through a stack of
dozens of proposed orders submitted by DPPPS arising from the
previous day's hearings, signed an order placing Mitchell
on electronic monitoring.
appears Mitchell soon absconded. From the record we have been
provided it is impossible to determine when Mitchell was
served with or received the November 18, 2014 order, but in
May 2015, his counsel moved to quash the November 18, 2014
order, noting it must have been signed inadvertently given
the trial court's earlier ruling from the bench
continuing the case. Mitchell further claimed the trial court
lacked jurisdiction to alter his 2012 sentence to add
electronic monitoring, and the monitoring violated his due
process rights. The circuit court denied the motion, and
Mitchell now appeals.
the questions raised by this appeal were answered in
State v. Ross, 423 S.C. 504, 815 S.E.2d 754 (2018).
Mr. Ross was imprisoned for lewd act in 1979 and received a
six year sentence suspended on probation. In 2011, Ross was
convicted in magistrate court of failing to register.
Consequently, he was subject to lifetime electronic
monitoring pursuant to section 23-3-540(E). When DPPPS sought
an order from the circuit court to place Ross on monitoring,
Ross claimed the monitoring amounted to a search that
violated his Fourth Amendment rights. Id. at 506-08,
815 S.E.2d at 755. The trial court rejected Ross'
argument, but our supreme court, relying on Grady v.
North Carolina, 135 S.Ct. 1368 (2015), held the Fourth
Amendment requires that before monitoring under section
23-3-540(E) may be imposed, there must be "an
individualized inquiry into the reasonableness of the search
in every case." Ross, 423 S.C. at 508, 513-15,
815 S.E.2d at 755, 758-59.
resourceful trial court of course did not have the benefit of
Ross, but we must nevertheless reverse the
electronic monitoring order and remand so the Fourth
Amendment inquiry can occur. What remains, though, is the
issue of the fundamental legitimacy of the circuit
court's ability to order electronic monitoring pursuant
to section 23-3-540(E) on a defendant for the failure to
register offense when the defendant has served his sentence
and is not on probation or parole related to that offense.
Mr. Ross was not on probation and therefore was "no
longer under the jurisdiction of the sentencing court when he
was ordered to be placed on electronic monitoring[, ]"
id. at 511, 815 S.E.2d at 757, but the circuit
court's jurisdiction and authority over the defendant
were not questioned in that appeal. And perhaps relevant to
these issues is our supreme court's conclusion that the
electronic monitoring mandated by section 23-3-540 is a civil
mechanism, not a criminal punishment, see In re Justin
B., 405 S.C. 391, 409, 747 S.E.2d 774, 783 (2013), as
well as the observation in Ross that section
23-3-540(E)'s electronic monitoring requirement is
"automatic and mandatory," Ross, 423 S.C.
at 509, 815 S.E.2d at 756. Because of the sparse record at
hand, the parties may raise any objections or arguments
related to these fundamental issues at the remand hearing.
This will ensure the issues can be addressed head on, and not
nipped at on the heels as they have been so far. We express
no opinion on whether the circuit court's inherent power
or other authority empowers it to exercise jurisdiction over
the defendant and order monitoring under these circumstances.