THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Anthony Nation, Appellant.
Appellate Case No. 2011-199726
Appeal From Greenwood County
Frank R. Addy, Jr., Circuit Court Judge
Opinion No. 27408
Heard February 5, 2014 – Filed July 2, 2014
AFFIRMED
Ernest Charles Grose, Jr., of Grose Law Firm, and Shane
Edwin Goranson, both of Greenwood, and Chief
Appellate Defender Robert Michael Dudek, of the South
Carolina Commission on Indigent Defense, of Columbia,
for Appellant.
Matthew C. Buchanan, of the South Carolina Department
of Probation, Parole & Pardon Services, of Columbia, for
Respondent.
CHIEF JUSTICE TOAL: Anthony Nation (Appellant) appeals the circuit
court's decision to statutorily impose lifetime global positioning satellite (GPS)
monitoring on him due to his prior guilty plea for a sex offense with a minor and
subsequent probation violations. See S.C. Code Ann. § 23-3-540 (Supp. 2010)
(enumerating the circumstances in which a court may impose GPS monitoring on a
person convicted of a sex offense with a minor). On appeal, Appellant asserts
various constitutional challenges to section 23-3-540 and contests the validity of
five of our previous decisions involving the South Carolina Sex Offender Registry
and statutory authorization of GPS monitoring of sex offenders.1 We affirm.
FACTS/PROCEDURAL BACKGROUND
In 2000, when Appellant was twenty-nine years old, he engaged in a sexual
relationship with a fifteen-year-old female (Victim). Victim reported the
relationship to the police, and a grand jury subsequently indicted Appellant for
both second-degree criminal sexual conduct with a minor (CSCM-Second) and
committing a lewd act on a child under the age of sixteen (CSCM-Third).2 In
2003, Appellant pled guilty to CSCM-Third in exchange for the State dismissing
the CSCM-Second charge. The circuit court sentenced Appellant to fifteen years'
imprisonment, suspended on the service of twelve years, followed by five years'
probation with the South Carolina Department of Probation, Parole and Pardon
Services (SCDPPPS).
In 2005—after Appellant's guilty plea, but prior to Appellant's release from
the Department of Corrections—the General Assembly amended South Carolina's
sex offender registration requirements by enacting the Sex Offender Accountability
and Protection of Minors Act of 2006, commonly referred to as "Jessie's Law."
See S.C. Code Ann. § 23-3-540 (2005). In its original form, Jessie's Law read, in
relevant part:
1
These cases are: In re Justin B., 405 S.C. 391, 747 S.E.2d 774 (2013), cert.
denied, 134 S. Ct. 1496 (2014); State v. Dykes, 403 S.C. 499, 744 S.E.2d 505
(2013), cert. denied, 134 S. Ct. 1937 (2014); In re Ronnie A., 355 S.C. 407, 585
S.E.2d 311 (2003); Hendrix v. Taylor, 353 S.C. 542, 579 S.E.2d 320 (2003); and
State v. Walls, 348 S.C. 26, 558 S.E.2d 524 (2002). Together, these cases affirm
that South Carolina's Sex Offender Registry—including the GPS monitoring
requirement—is a civil remedy and is not penal in nature.
2
At the time of Appellant's indictment, section 16-15-140 codified the crime of
"lewd act upon a child under sixteen." S.C. Code Ann. § 16-15-140 (1996).
However, the General Assembly later renamed this crime CSCM-Third and re-
codified it in S.C. Code Ann. § 16-3-655(C) (Supp. 2010). For ease of reference,
we refer to "lewd act upon a child under sixteen" as CSCM-Third.
(C) A person who is required to register [as a sex offender] pursuant
to this article for committing criminal sexual conduct with a minor
in the first degree, pursuant to Section 16–3–655(A)(1), or
committing or attempting a lewd act upon a child under sixteen,
pursuant to Section 16–15–140, and who violates a term of
probation, parole, community supervision, or a community
supervision program must be ordered by the court or agency with
jurisdiction to be monitored by the Department of Probation,
Parole and Pardon Services with an active electronic monitoring
device.
(D) A person who is required to register [as a sex offender] pursuant
to this article for any other [sex] offense [with a minor] listed in
subsection (G), [including CSCM-Second,] and who violates a
term of probation, parole, community supervision, or a
community supervision program, may be ordered by the court or
agency with jurisdiction to be monitored by the Department of
Probation, Parole and Pardon Services with an active electronic
monitoring device.
Id. (emphasis added); see also State v. Dykes, 403 S.C. 499, 502–04, 744 S.E.2d
505, 507–08 (2013) (explaining the requirements of section 23-3-540).
In 2009, upon his release from the Department of Corrections, Appellant
began his probation; however, within two years, Appellant accrued several
unexplained probation violations. At Appellant's probation revocation hearing, the
State recommended imposing mandatory lifetime GPS monitoring on Appellant in
accordance with the requirements of Jessie's Law. See S.C. Code Ann. §23-3-
540(C). In response, Appellant challenged the constitutionality of Jessie's Law and
offered testimony in mitigation,3 but did not deny he had violated his probation.
The circuit court rejected Appellant's constitutional challenges and found
Appellant in willful violation of his probation. Therefore, the court found that
Jessie's Law mandated that it impose lifetime GPS monitoring on Appellant.
This appeal followed. See Rule 203(d)(1)(A)(ii), SCACR.
3
Specifically, Appellant introduced evidence that he qualified for one of the lowest
levels of supervision that SCDPPPS provided.
ISSUE
Whether the mandatory imposition of GPS monitoring on a sex
offender convicted prior to a statute's effective date violates:
a. the Ex Post Facto, Equal Protection, Due Process, or Double
Jeopardy Clauses of the United States or South Carolina
Constitutions?
b. the Fourth Amendment's prohibition on unreasonable searches
and seizures?
c. the Eighth Amendment's prohibition on cruel and unusual
punishment?
STANDARD OF REVIEW
All statutes are presumed constitutional, and when possible, courts must
construe statutes so as to render them valid. In re Justin B., 405 S.C. 391, 395, 747
S.E.2d 774, 776 (2013) (citing Curtis v. State, 345 S.C. 557, 569, 549 S.E.2d 591,
597 (2001)). "A statute will not be declared unconstitutional unless its repugnance
to the constitution is clear beyond a reasonable doubt." Id. (citing In re Lasure,
379 S.C. 144, 147, 666 S.E.2d 228, 229 (2008)). "The party challenging the
statute's constitutionality bears the burden of proof." Id. (citing In re Treatment of
Luckabaugh, 351 S.C. 122, 135, 568 S.E.2d 338, 344 (2002)).
ANALYSIS
Although Appellant raises numerous challenges to the constitutionality of
Jessie's Law, we have explicitly rejected each of these challenges in two of our
recent opinions. See Justin B., 405 S.C. at 391, 747 S.E.2d at 774, cert. denied,
134 S. Ct. 1496 (2014); Dykes, 403 S.C. at 499, 744 S.E.2d at 505, cert. denied,
134 S. Ct. 1937 (2014).
In State v. Dykes, Dykes—similar to Appellant—committed CSCM-Third
prior to the enactment of Jessie's Law, but violated her probation after its
enactment. 403 S.C. at 503–05, 744 S.E.2d at 507–08. The circuit court imposed
GPS monitoring pursuant to Jessie's Law. Id. at 505, 744 S.E.2d at 508. Dykes
appealed, contending that the statute violated the Ex Post Facto, Equal Protection,
and Due Process Clauses of the United States and South Carolina Constitutions, as
well as her Fourth Amendment right to be free of unreasonable governmental
searches and seizures. Id. at 505, 510 n.9, 744 S.E.2d 508, 511 n.9.
A majority of this Court rejected Dykes's arguments, holding that mandatory
GPS monitoring did not violate Dykes's right to substantive due process. Id. at
503, 744 S.E.2d at 507; see also id. at 510 n.9, 744 S.E.2d at 511 n.9 (rejecting
Dykes's remaining arguments). Specifically, we disagreed with Dykes's assertion
that, as a convicted sex offender, she had a fundamental right to be "let alone." Id.
at 505–06, 744 S.E.2d at 508–09 ("The United States Supreme Court has cautioned
restraint in the recognition of rights deemed to be fundamental in a constitutional
sense." (citing Washington v. Glucksberg, 521 U.S. 702 (1997))).4 However,
notwithstanding the absence of a fundamental right, we found that lifetime GPS
monitoring "implicates a protected liberty interest to be free from permanent,
unwarranted governmental interference." Id. at 506, 744 S.E.2d at 509. In light of
the General Assembly's intent to protect the public from sex offenders and aid law
enforcement,5 we held that an initial, mandatory imposition of GPS monitoring for
certain sex crimes involving children was rationally related to the law's stated
purpose. Id. at 507–08, 744 S.E.2d at 509–10.
Despite generally upholding the constitutionality of Jessie's Law, we found
the final sentence of subsection (H) unconstitutional as arbitrary and not rationally
related to the statute's purpose. Id. at 508, 744 S.E.2d at 510 (citing S.C. Code
Ann. § 23-3-540(H)). Prior to our decision, subsection (H) permanently foreclosed
persons convicted of CSCM-First or -Third, such as Dykes, from seeking judicial
review of the necessity of continued GPS monitoring. See S.C. Code Ann. § 23-3-
540(H). However, we determined that all sex offenders monitored pursuant to
Jessie's Law were entitled to periodic judicial review and thus could "avail
themselves of the . . . judicial review process as outlined for the balance of the
offenses enumerated in section 23-3-540(G)." Dykes, 403 S.C. at 508–10, 744
4
"Our rejection of Dykes'[s] fundamental right argument flow[ed] in part from the
premise that [GPS] monitoring is predominantly civil." Dykes, 403 S.C. at 506,
744 S.E.2d at 509 (citing Smith v. Doe, 538 U.S. 84 (2003)); see also Justin B., 405
S.C. at 405–09, 747 S.E.2d at 781–83 (applying the factors from Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168–69 (1963), and finding that GPS monitoring
of sex offenders is a civil remedy).
5
See S.C. Code Ann. § 23-3-400 (2003).
S.E.2d at 510–11; see also S.C. Code Ann. § 23-3-540(H) (outlining the judicial
review process and relevant lengths of time for review). Accordingly, we found
that Dykes and others convicted of CSCM-First or -Third could petition the courts
ten years after the initial imposition of the monitoring, and every five years
thereafter. Dykes, 403 S.C. at 510, 744 S.E.2d at 511.
To address Appellant's remaining arguments, we next look to In re Justin B.,
in which Justin B.'s adoptive mother witnessed him sexually molest his adoptive
sister and notified the police. 405 S.C. at 394, 747 S.E.2d at 775.6 Justin B.
subsequently pled guilty to CSCM-First, and the family court ordered him to
comply with the lifetime GPS monitoring requirement set forth in Jessie's Law. Id.
at 394, 747 S.E.2d at 775–76. Justin B. appealed, arguing that GPS monitoring
constituted cruel and unusual punishment in violation of the Eighth Amendment.
Id. at 394–95, 747 S.E.2d at 776.
We unanimously disagreed. After examining the legislative intent behind
Jessie's Law and applying the Mendoza-Martinez factors,7 we held that "electronic
monitoring is not a punishment," but a civil requirement. Id. at 394, 404–08, 747
S.E.2d at 775, 781–83 (emphasis added). We also reaffirmed that all sex offenders
subject to GPS monitoring in accordance with Jessie's Law may periodically
petition for judicial review of the necessity of continued monitoring. Id. at 408,
747 S.E.2d at 783.
In light of our previous holdings in Dykes and Justin B., we find that we
have fully addressed and rejected each of Appellant's constitutional challenges to
Jessie's Law.8 Further, we decline to overrule either Dykes or Justin B., especially
6
Like Justin B., the adoptive sister was also a minor at the time of the molestation.
See Justin B., 405 S.C. at 394, 747 S.E.2d at 775 (stating that the minor was
indicted for CSCM-First); see also S.C. Code Ann. §16-3-655(A)(1) ("A person is
guilty of [CSCM-First] if . . . the actor engages in sexual battery with a victim who
is less than eleven years of age . . . .").
7
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963) (listing seven
factors that aid in distinguishing between civil and penal remedies).
8
We acknowledge that Dykes and Justin B. did not explicitly reject Appellant's
Double Jeopardy challenge; however, the prohibition on double jeopardy protects
against, inter alia, "multiple punishments for the same offense." North Carolina v.
Pearce, 395 U.S. 711, 717 (1969) (emphasis added), overruled on other grounds
given that Appellant does not raise any new questions of law; indeed, Appellant's
case so closely parallels Dykes as to be factually and legally indistinguishable.
Thus, we find that Appellant has not carried his burden to show that Jessie's Law is
unconstitutional beyond a reasonable doubt. Justin B., 405 S.C. at 395, 747 S.E.2d
at 776 (citing Luckabaugh, 351 S.C. at 135, 568 S.E.2d at 344).
Accordingly, we affirm the circuit court's imposition of GPS monitoring on
Appellant for his probation violations. We likewise note that, although Appellant
must comply with the GPS monitoring, he is entitled to avail himself of the judicial
review process required by Dykes and Justin B. See S.C. Code Ann. § 23-3-
540(H) (providing for judicial review at periodic intervals).
CONCLUSION
For the foregoing reasons, the judgment of the circuit court is
AFFIRMED.
PLEICONES and KITTREDGE, JJ., concur. HEARN, J., dissenting in a
separate opinion in which BEATTY, J., concurs.
by Alabama v. Smith, 490 U.S. 794 (1989). As Dykes and Justin B. both hold that
the GPS monitoring requirement is a civil penalty and not a punishment,
Appellant's argument that Jessie's Law "increas[es] and expand[s] his punishment
as a violation of double jeopardy" is without merit. See Justin B., 405 S.C. at 394,
747 S.E.2d at 775; Dykes, 403 S.C. at 506, 744 S.E.2d at 509.
JUSTICE HEARN: Respectfully, I dissent. For the reasons discussed in
my dissent in State v. Dykes, 403 S.C. 499, 744 S.E.2d 505 (2013), I believe the
initial imposition of satellite monitoring without an individualized determination of
Nation's likelihood of reoffending violates his right to substantive due process. I
would therefore find Section 23-3-540(C) of the South Carolina Code (Supp. 2013)
unconstitutional, and would reverse and remand for a hearing to determine whether
satellite monitoring should be imposed.
BEATTY, J., concurs.