Wednesday, October 27, 2021

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Court of Appeals overturns order requiring convicted rapist to enroll in lifetime monitoring

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The North Carolina Court of Appeals has overturned an order requiring a convicted rapist from Graham to enroll in lifetime satellite-based monitoring (SBM) once he’s released from state prison in 2025.

Juan Antonio Perez, 34, Hispanic, formerly of 1021 Townbranch Road, Apartment 2-A, Graham, successfully argued on appeal that the order requiring lifetime monitoring violated his Fourth Amendment right to be free from unreasonable searches and seizures. Perez also successfully appealed two separate orders, requiring him to pay $7,642.50 and $2,062.50 in court costs, which he contended were duplicative.

Juan Antonio Perez

Perez pleaded guilty in Alamance County superior court in November 2018 to felony second-degree forcible rape and six related charges. He also pleaded guilty to the following charges: felony second-degree forcible sex offense: felony second-degree kidnapping; felony assault by strangulation; felony obstruction of justice; felony witness intimidation; and misdemeanor assault on a female. (The charges were later consolidated into a single case that went to trial in Alamance County superior court in early November 2018).

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His convictions stem from a May 2016 incident involving a woman whom he had been dating and living with for about nine months, according to the case background, which identifies the victim by the initials “D.M.” to protect her privacy.

In the course of an argument on May 28, 2016, Perez restrained D.M. to stop her from leaving the apartment, eventually strangling her until the she lost consciousness. Perez then moved the victim into the bedroom and removed all of the electronics that could be used to access the internet, and returned hourly to make sure she hadn’t moved. Struggling to breathe and feeling a ‘crackling’ in her neck,” D.M. asked Perez to take her to the emergency room, which he consented to, while warning her, that “if she showed any indication that it was him, he would kill her in front of everyone at the hospital.” Perez told a nurse at the hospital that D.M. had tripped on the steps at his apartment, causing her to fall and land directly on her neck, the case background states.

D.M. was treated and released from the hospital, and given a prescription for pain medication. She returned to the apartment she shared with Perez and went to sleep, waking later only to take an additional dosage of medication that Perez administered. Several hours later, Perez awakened D.M. and raped her repeatedly for more than five hours, according to the case background. She was finally able to call the police once Perez left for work, on May 31, 2016.

At the conclusion of his trial in Alamance County superior court on November 8, 2018, Perez was sentenced to 16 years and five months in prison and ordered to pay $7,642.50 and $2,062.50 in court costs, the case background states.

During his sentencing hearing on November 13, 2018, Perez was ordered to register as a sex offender for the rest of his life. The visiting superior court judge who presided over the second hearing in November 2018 also scheduled a hearing for March 4, 2019 to consider an order for satellite-based monitoring (SBM).

A probation and parole officer, who is identified as Brady Cox and is described as working with sex offenders in Alamance County, testified at the SBM hearing in March 2019 about the effectiveness of the ankle bracelet, called an “ET-1.” The ET-1 uses GPS satellite signals to track an individual’s location at all times and will alert an officer if an offender enters a restricted zone (such as school, nursery, or daycare facility). Cox also testified in March 2019 that an assessment tool indicated Perez poses an average risk for recidivism.

Perez gave verbal notice of his intent to file an appeal during his sentencing hearing in November 2018 but didn’t challenge the court costs assessed to him; nor did he later file a written notice of appeal, according to the case background. In January 2020, Perez filed a petition, asking the Appeals Court to review the order requiring him to enroll in lifetime monitoring that had been entered in Alamance County superior court in November 2018. He also asked the Appeals Court to review the order requiring him to pay two sets of court costs.

Two judges for the Appeals Court – then-chief judge Linda McGee, who retired last month, and judge Allegra Collins – concluded that one of the state’s rules of appellate procedure grants them the discretion to allow such a petition for review (a “writ of certiorari”) of the lifetime SBM order, though the defendant failed to follow the proper procedures for filing an appeal. (Appeals Court judge John M. Tyson issued a dissenting opinion, contending that Perez had neither properly preserved his appeal nor shown that some reversible error had occurred during his SBM hearing or at the hearing when the judgments for court costs were entered against him.)

In the majority opinion issued two weeks ago for the Appeals Court, McGee and Collins noted that, though Perez has a “diminished expectation of privacy in some respects” following his eventual release from prison, his expectation of privacy “is not automatically and forever significantly diminished under the Fourth Amendment for all purposes.”

McGee and Collins also overturned the order requiring Perez to pay two sets of court costs, which the judges noted, “arose from the same underlying event and were adjudicated together at the same trial, making them part of a single criminal case,” as defined by a state law that governs fees and court costs in criminal cases.

In his dissenting opinion, Tyson noted that extensive “legislative findings” and “policy decision” were used to develop a state law, enacted in 2007, that requires certain defendants who are convicted of sexually violent and/or aggravated offenses to be required to enroll in SBM. “This legislative policy and statute has been tested and survived constitutional scrutiny,” Tyson wrote. He also noted that that Perez had pleaded guilty and that a judge had entered findings to support lifetime satellite monitoring – “without any objection by [Perez], while in open court and in the presence of the defendant and his counsel.” Neither Perez nor his attorney objected or raised any constitutional challenge, Tyson emphasized, to any arguments or findings made at the hearing in March 2019 to support lifetime monitoring.

Tyson also countered that both of Perez’s arguments on appeal – against lifetime monitoring and two sets of criminal court fees – were “wholly without merit.”

Perez is currently incarcerated at Marion Correctional Institution, a medium-security prison in McDowell County, and is projected to be released on June 23, 2025, according to the state Department of Corrections (DOC). He had no criminal record prior to his convictions in November 2018, based on information from the the DOC.

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