State v. Paktiawal

866 S.E.2d 532 (Table)

STATE of North Carolina

v.Hussina Jacquelin PAKTIAWAL, Defendant.

No. COA20-925

Court of Appeals of North Carolina.

Filed December 21, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Matthew E. Buckner, for State-Appellee

Sandra Payne Hagood, for Defendant-Appellant

CARPENTER, Judge.

¶ 1 Hussina Jacquelin Paktiawal ("Defendant") appeals from judgment entered upon a jury's verdict finding her guilty of driving while impaired. Defendant requests this Court to exercise its discretion in granting her petition for writ of certiorari ("PWC") and to perform an Anders review of the record. After careful review, we deny Defendant's PWC and dismiss the appeal.

I. Factual and Procedural Background

¶ 2 The evidence presented at trial tends to show the following: on the night of 17 December 2016, Defendant was stopped by Deputy Matthew Johnson ("Deputy Johnson") of the Wake County Sheriff's Office. At the intersection of Oberlin Road and Glenwood Avenue, Deputy Johnson was traveling northbound in a lane opposite Defendant, who was traveling southbound, when Deputy Johnson witnessed Defendant stop at the stoplight. Deputy Johnson testified Defendant's vehicle drew his attention because its "front tires were completely over the [white] stop bar," in violation of North Carolina law. Shortly thereafter, Deputy Johnson made a U-turn onto Glenwood Avenue to further observe Defendant. He then saw Defendant's vehicle "strike the center median, driving on top of the median and then correcting back into the lane of travel." Defendant's two traffic violations—stopping over the stop bar and striking the median curb—caused him to pursue Defendant.

¶ 3 Deputy Johnson testified that as he followed Defendant, he observed Defendant's car "cross over the center yellow line with both passenger tires," which she straddled for a "short distance" before correcting her vehicle. At this point, he decided to conduct a traffic stop on Defendant's vehicle. After Deputy Johnson activated his blue lights, Defendant again drove her vehicle over the center line before properly stopping about fifty yards down the road.

¶ 4 Deputy Johnson further testified that while advising Defendant of the reason he stopped her, he noticed strong odors of burnt marijuana and alcohol coming from the vehicle. Based on the odors, Defendant's bloodshot eyes, and slow slurred speech, Deputy Johnson asked Defendant how much she had to drink, to which she responded, "none." Deputy Johnson initiated standardized field sobriety testing on Defendant. In conducting the Horizontal Gaze Nystagmus ("HGN") test, Deputy Johnson observed four of six clues that are relevant in the standardized administration of the HGN. Following Deputy Johnson's testimony regarding HGN testing, the trial court admitted him as an expert in HGN testing. After administering the HGN test on Defendant, he asked her "if she was under the influence of any medications like Xanax" and "inquired about the odor of burned marijuana." Defendant admitted to taking a total of one milligram of Xanax over the course of the day—.5 milligrams at 11:00 a.m. and .5 milligrams at 2:00 p.m.—and smoking marijuana earlier that night. Defendant took the stand at trial and confirmed she split the normal dosage of her prescribed Xanax during the day, taking half the dose in the morning and the other half in the afternoon, but denied telling Officer Johnson that she had smoked marijuana that day. Deputy Johnson testified regarding the other field sobriety tests administered on Defendant, including a walk-and-turn test and a one-leg-stand test as well as a portable breath test. The portable breath test for alcohol returned a negative result for the presence of alcohol. After performing the tests, considering the totality of the circumstances, Deputy Johnson was of the "opinion that [D]efendant had consumed a sufficient quantity of an impairing substance so as to appreciably impair her mental and/or physical faculties." He placed Defendant under arrest and issued a citation to Defendant for driving while impaired. After Defendant was taken into custody, Deputy Johnson obtained a search warrant to conduct a chemical analysis of her blood after she refused to consent to the test.

¶ 5 Irvin Lee Allcox, a forensic chemist with the City-County Bureau of Identification, testified for the State and was admitted by the trial court as an expert in forensic chemistry and forensic toxicology. Mr. Allcox received Defendant's blood sample for analysis. His analysis identified the presence of amphetamine, cannabinoids, cocaine, and Xanax in Defendant's blood sample.

¶ 6 At the 5 December 2018 session of Wake County District Court, Defendant was convicted and sentenced to ten days of imprisonment in the Misdemeanant Confinement Program, which was suspended for twelve months of unsupervised probation. Defendant appealed her conviction to the Wake County Superior Court.

¶ 7 Defendant filed a pretrial motion to suppress evidence attained after the stop alleging Deputy Johnson lacked reasonable suspicion to stop her, lacked probable cause to arrest her, and had not Mirandized her before she made the incriminating statements. The superior court denied Defendant's motion to suppress because: (1) stopping past the stop bar was a traffic infraction, giving Deputy Johnson reasonable suspicion to stop her; (2) the totality of circumstances gave Deputy Johnson probable cause to arrest her; and (3) none of Defendant's constitutional rights had been violated as probable cause was apparent without evidence of her admissions.

¶ 8 A jury trial began on 24 February 2020 in the Wake County Superior Court before the Honorable Andrew H. Hanford, judge presiding. At the close of the State's case, defense counsel moved to dismiss the matter. The trial court denied the motion. At the close of all evidence, defense counsel renewed its motion to dismiss, which was also denied. On 28 February 2020, the jury found Defendant guilty of driving while impaired. The trial court imposed a Level 5 punishment and sentenced Defendant to ten days’ imprisonment in the Misdemeanant Confinement Program, suspended for twelve months of unsupervised probation. Defendant filed a PWC on 10 March 2021.

II. Jurisdiction

¶ 9 Defendant filed a PWC believing she likely waived her right of appeal by failing to give oral notice of appeal at trial and by failing to file a written notice with the clerk within fourteen days as required by Rule 4(a) of the North Carolina Rules of Appellate Procedure.

¶ 10 Defendant first contends this Court should grant the PWC because her "attempt to give notice demonstrates" her intent to appeal. Under the judgment's order of commitment section, the trial court checked the box indicating "[t]he defendant gives notice of appeal from the judgment of the Superior Court to the appellate division." Additionally, the record includes a copy of Administrative Office of the Courts (AOC) Form No. CR-350 – Appellate Entries, which was signed by the trial court judge on 28 February 2020.

¶ 11 Our Court has previously held that a failure to comply with Rule 4 "precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co. , 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) ; see State v. Hughes , 210 N.C. App. 482, 485, 707 S.E.2d 777, 778–79 (2011) (holding a defendant did not preserve his right to appeal pursuant to Rule 4 although the record contained appellate entries). Thus, we conclude Defendant failed to properly give notice of appeal from the trial court's judgment under Rule 4. See N.C. R. App. P. 4.

¶ 12 Alternatively, Defendant requests this Court issue this writ in its discretion pursuant to Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure. Rule 21 allows our Court to issue a writ of certiorari "in appropriate circumstances ... when the right to prosecute an appeal has been lost by failure to take timely action ...." N.C. R. App. P. 21(a)(1). For this Court to issue the writ, the petition "must show merit or that error was probably committed below." State v. Rouson , 226 N.C. App. 562, 563–64, 741 S.E.2d 470, 471 (2013) (citations omitted). As a discretionary writ, certiorari is only to be issued for "good and sufficient cause shown." Id. at 564, 741 S.E.2d at 471. Compare cf. State v. Rouson , 226 N.C. App. 562, 741 S.E.2d 470 (2013) (denying a PWC for lack of merit where the trial court's conclusions of law were fully supported by its findings of fact), with cf. State v. Posner , 2021-NCCOA-147 (granting a meritorious PWC due to the trial court's incorrect application of the law).

¶ 13 Lastly, Defendant asserts we should grant the PWC to "protect [Defendant's] right to review in accordance with Anders v. California , 386 U.S. 738[, 87 S. Ct. 1396, 18 L. Ed. 2d 493] (1967) and State v. Kinch , 314 N.C. 99, 331 S.E.2d 665 (1985)", as well as her statutory right to review under N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a), which would otherwise be lost. For the reasons set forth below, we conclude Defendant has failed to "show merit or that error has probably been committed." See Rouson , 226 N.C. App. at 563–64, 741 S.E.2d at 471.

III. Anders Brief

¶ 14 Counsel appointed to represent Defendant "is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal" and requests this Court conduct a full examination of the record on appeal for possible prejudicial error pursuant to Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and State v. Kinch , 314 N.C. 99, 331 S.E.2d 665 (1985).

¶ 15 Under Anders ,

a defendant may appeal even if defendant's counsel has determined the case to be "wholly frivolous." In such a situation[,] counsel must submit a brief to the court "referring to anything in the record that might arguably support the appeal." Counsel must furnish the defendant with a copy

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