No Mn Me Supreme Court of the niteb gotatto JENNIFER RAYANNE DYKES, SOUTH CAROLINA,

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1 No Mn Me Supreme Court of the niteb gotatto JENNIFER RAYANNE DYKES, v. Petitioner, SOUTH CAROLINA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SOUTH CAROLINA SUPREME COURT BRIEF IN OPPOSITION Matthew C. Buchanan Counsel of Record South Carolina Department of Probation, Parole, and Pardon Services 2221 Devine Street, Suite 600 P.O. Box Columbia, South Carolina Tel: (803) Fax: (803) Counsel for the Respondent

2 QUESTIONS PRESENTED 1. Whether the Sex Offender Accountability and Protection of Minors Act of 2006 S.C. Code of Laws (C), placing a Global Positional Satellite (GPS) monitor for a minimum of ten years is in violation of the ex post facto clause of the United States Constitution? 2. Whether the findings of the South Carolina Supreme Court that the Sex Offender Accountability and Protection of Minor Act was not intended to be punishment by the General Assembly.

3 PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT There are no corporations involved in this proceeding. ii

4 TABLE OF CONTENTS Questions Presented Rule 29.6 Statement Table of Authorities ii iv Formal Description of Opinions Below 1 Jurisdiction 1 Constitutional and Statutory Provisions Involved 1 Statement of Facts 2 Reasons For Denying Petition The Courts intervention in this case would be untimely 4 The different outcomes of the lower courts are attributable to different facts and not a legal disagreement 6 The decision of the South Carolina Supreme Court was the correct determination 8 Conclusion 12 iii

5 TABLE OF AUTHORITIES CASES Commonwealth v. Cory, 911 N,E.2d 187 (Mass. 2009) 6,7 Kansas v. Hendricks, 521 U.S. 346 (1997).3,10 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed. 2d 644 (1963). 6 Lewis v. Continental Bank Corp,, 494 U.S. 472, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) 5 Miller v. Florida, 482 U.S. 423, 107 S.Ct (1987). 9 North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed. 2d 413 (1971) 5 Riley v. New Jersey State Parole Board, 32 A.3d 190 (N.J. Super. A.D. 2011), cert. granted, 39 A.3d 200 (N.J. 2012) 8 Smith v. Doe, 538 U.S. 84 (2003) 3,6,9,10 State v. Dykes, 403 S.C. 499, 744 S.E.2d 505 (2013) 1,5,7,8,9,10 State v. Walls, 348 S.C. 26, 558 S.E.2d 524 (2002) 7 Witchard v. State, 68 So.3d 407 (Fla. Dist. Ct. App. 41h Dist. 2011) 7 STATUTES S.C. Code Ann (2007) 9 S.C. Code Ann (H)(2012) 10 iv

6 the ilottpreme court of tlje gotateo JENNIFER RAYANNE DYKES, v. Petitioner, SOUTH CAROLINA Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SOUTH CAROLINA SUPREME COURT BRIEF [N OPPOSITION The Respondent the State of South Carolina files this brief in opposition to the petition for a writ of certiorari filed by the petitioner Ms. Jennifer Rayanne Dykes. FORMAL DESCRIPTION OF OPINIONS BELOW The South Carolina Supreme Court originally decided this case on May 9, The Court granted the Respondent's petition for re-hearing. They substituted their original opinion for Slate v. Dykes, 403 S.C. 499, 744 S,E,2d 505 (2013). Upon this decision the Appellant issued a petition for rehearing, which was denied. Order of the denial for rehearing is unpublished. The trial court's order revoking the petitioner's probation and ordering GPS monitoring is also unpublished. JURISDICTION The Respondent agrees with the jurisdiction established by the Petitioner. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Respondent agrees with the South Carolina statutory scheme presented by the Petitioner within her petition for writ of certiorari. 1

7 STATEMENT OF FACTS On January 29, 2007, the. Petitioner was convicted of the offense of lewd act upon a minor. This was due to a sexual relationship with a fourteen year old minor while at the age of twentysix. She was given a sentence of fifteen years suspended upon the service of three years incarceration followed by three years of probation. The Sex Offender Accountability and Protection of Minors Act was enacted in This Act was a response to the abduction, rape and murder of Jessica Lunsford, a nine old girl who was abducted from her home in Homosassa, Florida, by a convicted sex offender, She was held captive over a weekend where she was sexually assaulted and then murdered. The Sex Offender Accountability and Protection of Minors Act was enacted by the South Carolina General Assembly with an effective date of July 1, Pursuant to this act, any person convicted of the offenses of criminal sexual conduct in the first degree with a minor (CSC 1st w/minor), or committing or attempting a lewd act on a child under sixteen, (Lewd Act), with an offense date on or after July 1, 2006, was required to be monitored with an active electronic Global Position Satellite (GPS) device for the duration of time that individual was required to register as a sex offender. Because her conviction took place prior to the establishment of the act, the Petitioner was not placed on GPS monitoring at the time of her release from incarceration. She was made aware, however, that during her period on probation, if it was determined by the Court that she wilfully violated her terms of conditions there would be a mandatory placement of a GPS monitoring device. She would be required to wear this device as long as she remains on the sex offender registry. 2

8 On April 22, 2010, the Petitioner was brought before the trial court for a revocation of probation.' The Petitioner admitted to each allegation; however, she offered evidence through the testimony of Dr. Gregg Dwyer that she posed a low risk of re-offending. The trial court determined that the Petitioner wilfully violated probation. The court revoked two years of her suspended sentence and terminated probation. The court also ordered that upon her release from incarceration she was to be placed on the GPS monitoring program pursuant to the Sex Offender Accountability and Protections of Minors Act. The Petitioner immediately filed a notice of appeal before the South Carolina Supreme Court. Upon the conclusion of two hearings before the South Carolina Supreme Court, the court determined the statute's initial mandatory imposition of satellite monitoring is constitutional; however, the lifetime requirement without judicial review was unconstitutional. Pursuant to the court's ruling, offenders under GPS monitoring may petition the trial court after ten years for a determination that they no longer pose a risk of reoffending and have the device removed, Upon the denial of Petitioner's rehearing by the South Carolina Supreme Court, the Petitioner presents this petition for writ of certiorari. Within this petition the Petitioner claims the Federal and State Court are split as to whether GPS tracking of a sex offender violates ex post facto; that the state court's decision conflicts with this Court's decisions in Kansas v. Hendricks, 521 U.S. 346 (1997), and Smith v. Doe, 538 U.S. 84 (2003); that the lower court misconstrued this Court's Due Process jurisprudence; and the lower court failed to correctly decide an important question that should be settled by this Court. Five citations and arrest warrants were issued due to the Petitioner relationship with a convicted felon, drinking to the point of intoxication, being terminated from sex offender counseling, and failing to maintain an approved residence. 3

9 The Respondent requests this petition be denied because this Court's intervention is untimely; the perceived conflicts between the lower courts are because of factual differences and not due to a split in jurisprudence because identical facts would have resulted in identical results in the cases the Petitioner deems are in conflict; and the decision of the lower court is a valid interpretation of this Court's jurisprudence. REASONS FOR DENYING THE PETITION The Courts intervention in this case would be untimely. The Respondent submits that because of a case recently argued before the South Carolina Supreme Court that has identical facts and arguments to Petitioner's case, a review by this Court would be untimely. The lower court could decide this pending matter in favor of the Appellant, which would thereby afford the Petitioner the remedy she seeks from this Honorable Court. In The State v. Nation, the appellant made the argument that the imposition of the GPS requirement is a violation of ex post facto, due process, right to privacy, and equal protection. This is an identical argument the Petitioner makes to this Court. The facts in Nation are strikingly similar to those in Petitioner's own case. On September 14, 2012, Mr. Anthony Nation appeared before the Honorable Frank R. Addy, Jr. South Carolina Circuit Court Judge, answering to a violation of probation for the offense of lewd act with a minor. Upon conclusion of this hearing Judge Addy determined that Mr. Nation did wilfully violate probation, and due to this violation he was subject to placement within the GPS monitoring program. After the trial court's ruling, Mr. Nation filed a notice of appeal before the South Carolina Supreme Court.2 2 Mr. Nation filed an Amicus Curiae brief in the present case. 4

10 On February 5, 2014, each party appeared before the South Carolina Supreme Court. Before the Supreme Court Mr. Nation argued that the placement in the GPS program was, 1) a violation of ex post facto; 2) violates double jeopardy; 3) violated the constitutional prohibition against cruel and unusual punishment; 4) violated procedural due process; 5) violated substantive due process; 6) violated the right to privacy; and, violated equal protection. This case is currently pending before the South Carolina Supreme Court with a decision due soon. The State v. Dykes decision was made by a three to two margin. The Nation case can easily become favorable to the Petitioner if just one South Carolina Supreme Court Justice changes his or her position in favor to the Petitioner. If this occurs there no longer exists an injury; so this case becomes moot. To invoke the jurisdiction of a federal court, a litigant must have suffered or be threatened with an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision. Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). Federal courts may not "decide questions that cannot affect the rights of litigants in the case before them," or give "opinions advising what the law would be upon a hypothetical state of facts." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, L.Ed. 2d 413 (1971). It does not matter that this case has been brought before this Court before the question of mootness has been resolved. If it happens prior to the granting of the petition, the case become moot and should not be brought before this Honorable Court. The case or controversy requirement subsists through all stages of federal judicial proceedings trial and appellate. Lewis, 494 U.S. at 477. The Petitioner also argues that the South Carolina Supreme Court never addressed whether due process protects a person from the attachment of GPS tracking. This argument is also being raised in Nation. This determination could be made by the South Carolina Supreme Court decision 5

11 in Nation. If it is made in the Petitioner's favor, this case would then have no bearing on the Petitioner. We request this Court wait until a decision in Nation is made prior to granting certiorari. Even in cases arising in the state court, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction. Rice, 404 U.S. at 246. The different outcomes of the lower court cases are attributable to different facts, and not a legal disagreement. Within her petition, the Petitioner argues that the lower courts are using a different analysis to determine whether the acts are civil or criminal. Respondent disagrees. Each case mentioned by the Petitioner made its determination using the same general formula found in Smith v. Doe, 538 U.S. 84, 123 S.Ct (2002). Whether the legislature means for a statute to be civil, courts are to look for two things: legislative intent and whether the statutory scheme is so punitive either in purpose or effect as to negate the state's intention to deem it civil. Smith, 538 U.S. at 92. If the legislative intent was to impose punishment, that ends the inquiry as the statute would be unquestionably criminal. If not, the court must further examine the regulatory scheme employing the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Petitioner's assertion of a deep divide between the lower courts falls short. The lower cases that ruled that the imposition of GPS monitoring is a violation of ex post facto present a different set of facts than what exists in the present case. Hence, the different facts are the reasons for the different rulings, and not a different application of the law. In Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009), the Appellant was required to be placed on GPS monitoring for the entire length of probation, a period of twenty-five years. This 6

12 monitoring included geographic exclusion zones which does not apply to the Petitioner, who is free to travel at her leisure. There exists no statement of civil intent in Massachusetts' preamble, title or text; and, it is imposed only in the criminal context when an offender is sentenced to probation. The court in Cory made the determination that this is a criminal statute so this is considered a punishment; therefore, a violation of ex post facto. In contrast, it is clear the South Carolina Supreme Court in the Petitioner's case determined that the purpose of GPS monitoring is not punishment. They ruled that the General Assembly did not intend to punish sex offenders, but instead, intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes. Dykes, 403 S.C. at 507, quoting, State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002). If the South Carolina Supreme Court had found the GPS monitoring program was criminal, there would have been an identical result as in the Cory decision. However, in light of the clear legislative intent by the South Carolina legislature, the court correctly determined it to be civil. In Witchard v. State, 68 So.3d 407 (FIa. Dist. Ct. App. 4th Dist. 2011), the court found the statute criminal due to it only applying to cases committed after September 1, The matter that the statute might be civil in nature was never an issue due to the fact the statute never mentioned any civil intent. The law as written was limited to individuals who have committed their offense after the establishment of the statute. In contrast, South Carolina law specifically states that the purpose of the Sex Offender Accountability and Protection of Minors Act is not punishment but to monitor child sex offenders. This makes it civil in nature. GPS monitoring is also allowed for an individual who is on supervision after the effective date of the act, but only upon a violation of said supervision. The statute in Witchard does not allow for this, which further proves Florida's statute was created specifically for punishment. Identical facts within Petitioner's 7

13 case would have forced the South Carolina courts to deem the statute a punishment; therefore, a violation of ex post facto. In Riley v. New Jersey State Parole Board, 32 A.3d 190 (N.J. Super. A.D. 2011), cert. granted 39 A.3d 200 (N.J. 2012), the Appellant was released from incarceration with no period of supervision, Though he was not on any type of supervision, he was subjected to UPS monitoring pursuant to the newly-enacted law. The court ruled that the retroactive application of this sex offender monitoring statute violated ex post facto. If the Petitioner was in the identical position as the Appellant in Riley, she would not be subject to UPS monitoring, or it would have been deemed a violation of ex post facto. The apparent divide presented by the Petitioner regarding the conflicting decisions made by other courts is due to a factual difference not due to differing legal interpretations. Were the facts identical to the case regarding the Petitioner, the Respondent is confident they would have garnered an identical result. Furthermore, none of these cases presented by Petitioner ruled that the GPS monitoring program is a violation of due process. The argument of the Petitioner regarding the different decisions made by the lower courts should not cause this Court to grant this petition. The different outcomes of the lower courts are simply attributable to different facts, rather than a question of law being interpreted differently. The decision of the South Carolina Supreme Court was the correct determination. In Stale v. Dykes, 403 S.C. 499, 744 S.E.2d 505 (2013) the South Carolina Supreme Court was asked to make a determination on the constitutionality of the Sex Offender Accountability and Protection of Minors Act. It was Petitioner's position that the Act was a violation of due process and ex post facto. In Dykes, the lower Court decided to review whether the Petitioner has a fundamental right to be "let alone." Dykes, 403 S.C. at 506. The court ruled that the statute did not 8

14 violate a fundamental right due to the fact GPS is a predominantly civil statute. The court did rule that the requirement of satellite monitoring did amount to a liberty interest; therefore, having served her sentence, the Petitioner's mandatory enrollment in the satellite monitoring program invokes minimal due process protection. Id., at 507. As for ex post facto, in order for a law to be prohibited by the ex post facto clause, two elements must be present: (1) the law must be retrospective so as to apply to events occurring before its enactment; and, (2) the law must disadvantage the offender affected by it. Miller v. Florida, 482 U.S. 423, 107 S.Ct (1987). The analysis that determines if a statute is in violation of ex post facto is first predicated on whether or not it is civil or criminal. Initially, whether a statutory scheme is civil or criminal is a question of statutory construction. A court first considers the statute's text and its structure to determine the legislative objective. Smith, 538 U.S. at 92. South Carolina Supreme Court ruled it was clear by the intent of the legislature that GPS monitoring is a civil matter and not punishment. First, the title of the act is "Sex Offender Accountability and Protection of Minors Act." This act is found in the same section as the "Sex Offender Registry." Within this section it states: The intent of this article is to promote the state's fundamental right to provide for the public health, welfare, and safety of its citizens [by]... provid[ing] law enforcement with the tools needed in investigating criminal offenses. Statistics show that sex offenders often pose a high risk of reoffending. Additionally, law enforcement's efforts to protect communities, conduct investigations, and apprehend offenders who commit sex offenses are impaired by the lack of information about these convicted offenders who live within the law enforcement agency's jurisdiction. Dykes, 403 S.C. at 507, quoting, S.C. Code Ann (2007). It is obvious by the reading of the statute the South Carolina General Assembly did not intend for this to be a punishment. This monitoring was made for the protection of children and 9

15 the assistance of law enforcement to investigate crimes against children. It also exists to ensure a prior sex offender is not prosecuted for a crime he did not commit. The South Carolina Supreme Court found in Dykes that, although the statute was not meant for criminal punishment, the lifetime GPS monitoring without judicial review was in fact arbitrary and not rationally related to the legislature's purpose of protecting the public from those with a high risk of re-offending. Id., at 508. To remedy this, the court determined that all sex offenders against minors are to be allowed judicial review regarding a likelihood of re-offending in order to be possibly removed from UPS monitoring. This review was already in the statute for all sex offenses against minors except those convicted of committing CSC 1st and Lewd Act pursuant to section (H).3 Id. So in Dykes the court struck the unconstitutional imposition of lifetime satellite monitoring by affording the same opportunity for judicial review as all others convicted of child sex crimes. Id. In addition, the South Carolina Supreme Court did not decide Petitioner's case in conflict with this Court's holdings. Though Petitioner tries to equate the GPS monitoring with the involuntary civil commitment found in Kansas v. Hendricks, 521, U.S. 346, these two regulatory schemes are wildly different. Instead, the GPS monitoring, being a public safety measure, falls squarely within this Court's holding in Smith v. Doe, 538 U.S. 84. In fact, Doe's holding that "[t]he Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences" comports squarely with the Dvkes ruling. Id. at Ten years from the date the person begins to be electronically monitored, the person may petition the chief administrative judge of the general sessions court for the county in which the person was ordered to be electronically monitored for an order to be released from the electronic monitoring requirements of this section. S.C. Code Ann (H). 10

16 An observation of all the opinions offered by the Petitioner shows no discrepancy between this case and other holdings across the country. As with other cases relating to the GPS monitoring of sex offenders, the South Carolina Supreme Court first observed whether the legislature intended this to be a criminal punishment or civil regulation. By ruling the statute was civil in nature, it was therefore not a violation of ex post facto. While the Court determined that a permanent attachment of GPS without any possible relief is unconstitutional, that has been remedied by the addition of judicial review. Under the same set of facts, this would have been probably the identical result of the other jurisdictions. Due to the proper determination being made by the South Carolina Supreme Court, there should be no review by this esteemed Court. We request that the petition for certiorari be denied. 11

17 CONCLUSION The petition for a writ of certiorari should he denied. March 17, 2014 Respectfully ub ted, By: Matthew C. Buchanan Counsel of Record South Carolina Department of Probation, Parole and Pardon Services P.O. Box Columbia, South Carolina (803) mbuchanan@ppp.state.se.us 12

18 State of South Carolina Department of Probation, Parole and Pardon Services NIKKI R. HALEY Governor KELA E. THOMAS Director 2221 DEVINE STREET. SUITE 600 POST OFFICE BOX COLUMBIA, SOUTH CAROLINA Telephone: (S03) Facsimile: (1103) March 17, 2014 The Honorable Scott S. Harris, Clerk Supreme Court of the United States Washington, D.C RE: Jennifer Rayanne Dykes v. South Carolina No Dear Mr. Harris: Please find enclosed for filing the original and ten copies of the Brief in Opposition in the above referenced case. Matthew C. Buchanan General Counsel MCB/dn Cc: Christopher D. Scalzo, Office of the Public Defender 13th Judicial Circuit Wanda H. Carter, South Carolina Commission on Indigent Defense

19 No n tbe supreme Court of tbeluiteb estates JENNIFER RAYANNE DYKES, v. Petitioner, SOUTH CAROLINA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SOUTH CAROLINA SUPREME COURT CERTIFICATE OF SERVICE I, Dawn K. Nichols, Executive Administrative Assistant, hereby certify that this 17th day of March, 2014, I served the following documents: 1. Brief in Opposition; and 2. Certificate of Service; by first class mail, postage prepaid as follows: Wanda Carter, Chief Appellate Defender South Carolina Commission on Indigent Defense Division of Appellate Defense PO Box Columbia, SC Christopher D. Scaizo 13th Circuit Public Defender Greenville County Courthouse 305 E. North Street, Suite 123 Greenville, South Carolina Dawn K. Nichols, Executive Administrative Assistant S. C. Department of Probation, Parole and Pardon Services P. 0. Box Columbia, South Carolina (803)