State v. Rogers

256 N.C.App. 328

808 S.E.2d 156

STATE of North Carolina

v.Israel John ROGERS

No. COA17-271

Court of Appeals of North Carolina.

Filed: November 7, 2017

Attorney General Joshua H. Stein, Assistant Attorney General Joseph L. Hyde, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant.

BRYANT, Judge.

Where no procedural mechanism exists under Rule 21 to issue the discretionary writ of certiorari to review the trial court's judgment entered upon defendant's guilty plea, we exercise our discretion to invoke Rule 2 to suspend the rules and address the merits of defendant's appeal. Assuming arguendo the trial court erred in advising defendant that he had a right to appeal the court's denial of his pro se motion to dismiss, we hold defendant has failed to establish prejudicial error.

On 2 January 2015 around 4:30 a.m., Blair Mincey observed defendant Israel John Rogers and another person breaking into her Honda Accord and called the Wilmington Police Department. An officer responded and observed defendant breaking into another vehicle, a GMC Yukon. Defendant fled. After a short chase, defendant was apprehended and placed under arrest.

Defendant was indicted for two counts of breaking or entering a motor vehicle, one count of resisting a public officer, and for having attained habitual felon status. Subsequently, defendant "was sent up to Butner for an evaluation to see if he was competent to stand trial[.]" On 10 August 2016, the forensic psychiatrist who examined defendant reported that he believed defendant to be capable of proceeding.

Defendant's cases came on for trial during the 19 September 2016 session of New Hanover County Superior Court, the Honorable Jay D. Hockenbury, Judge presiding. Defendant asked his attorney to file a motion to dismiss for lack of subject matter jurisdiction, but his attorney refused as she "felt the motions were frivolous and without merit[.]"¹ At defendant's request, his attorney filed a motion to withdraw.

When defendant's case was called, the court addressed defendant directly, informing defendant that he would be permitted to file his motion to dismiss for lack of jurisdiction and put it in the record. The court also advised defendant that his attorney, as an officer of the court, believed his "motions [were] frivolous and it would be a waste of the Court's time for her to spend time to make a formal motion to dismiss based on subject matter, or that the Court has no jurisdiction over [defendant], and therefore, she is not going to file those motions." The trial court advised defendant he could give his attorney any documents that he wanted filed, and then denied defense counsel's motion to withdraw.

The trial court received four handwritten documents from defendant. Defendant was allowed to "make any arguments that he want[ed] to make for the record," and defendant did so. The trial court declared the documents provided no basis for dismissing the charges and denied defendant's pro se motion to dismiss. The State then offered a plea to defendant, which provided that he would plead guilty to all the charges, the offenses would be consolidated for judgment, and a sentence of twenty-three to forty months would be imposed.

After a break, defendant personally addressed the court again, stating he had additional motions to make based on previously filed documents. Defendant said he wanted to make an additional motion concerning the "legitimacy of the claims brung [sic] against [him] before [he] could take the plea." The trial court responded by stating that

I made my ruling denying your motion to dismiss on those two grounds [ (lack of subject matter jurisdiction and lack of in personam jurisdiction) ]. So it's all in the record, and when this case is over with you have the right to appeal my ruling , and this is part of the—part of the file that I'm sure will be looked at by someone as part of the appellate process.

(Emphasis added). Thereafter, defendant chose to accept the State's plea offer, and the trial court proceeded to conduct a plea colloquy with defendant—who entered an Alford plea—and to hear a factual basis for the plea from the State. The plea colloquy included the following: "THE COURT: Do you understand following a plea of guilty there are limitations on your right to appeal? DEFENDANT: Yes, Sir." Then, the trial court advised defendant of the maximum possible punishment—176 months plus 60 days.

The trial court accepted defendant's Alford plea and ordered it recorded, finding that it was "the informed choice of the defendant, and the plea [was] made freely, voluntarily, and understandingly." The trial court sentenced defendant in accordance with the terms of his plea. Thereafter, defendant purported to file written notice of appeal on 28 September 2016. Subsequently, defendant filed a petition for writ of certiorari to this Court on 15 May 2017, and the State filed a motion to dismiss the appeal on 23 May 2017.

Jurisdiction

As an initial matter, we must determine whether this appeal is properly before this Court.

1. Appeal as of Right

The State has filed a motion to dismiss on the basis that, per state statute, a defendant who pleads guilty generally does not have a right to appeal. N.C. Gen. Stat. § 15A-1444(e) (2015) ; see State v. Pimental , 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002) (noting that a criminal defendant's right to appeal is purely a creation of state statute). We agree.

Except as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court , but he may petition the appellate division for review by writ of certiorari.

N.C.G.S. § 15A-1444(e) (emphasis added). Further, a defendant who pleads guilty does not have a right to appeal whether the trial court erred in determining his guilty plea was knowing and voluntary, State v. Bolinger , 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987) ; State v. Santos , 210 N.C. App. 448, 450, 708 S.E.2d 208, 210 (2011), nor does he have a right to appeal whether the trial court erred in denying his motion to dismiss, State v. Shepley , 237 N.C. App. 174, 177, 764 S.E.2d 658, 660 (2014). Defendant concedes that he is not entitled to an appeal as of right , acknowledging that "[a]ppellate review is contingent upon this Court granting [his] petition for writ of certiorari as to one, or both, of these issues." Thus, defendant's appeal is subject to dismissal. See State v. Demaio , 216 N.C. App. 558, 561, 716 S.E.2d 863, 865 (2011) ("A ‘defendant is not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea.’ " (emphasis added) (quoting Bolinger , 320 N.C. at 601, 359 S.E.2d at 462 )).

2. Petition for Writ of Certiorari

Defendant, however, has filed a petition for writ of certiorari. Pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure, this Court may, in its discretion, issue a writ of certiorari if one of the following circumstances applies: "when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court ruling on a motion for appropriate relief." N.C. R. App. P. 21(a)(1) (2017). "A petition for the writ 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) (quoting State v. Grundler , 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) ) (denying the defendant's petition for writ of certiorari where the defendant failed to bring forth a meritorious argument or reveal error in the trial court's denial of his motion to suppress and in the acceptance of his guilty pleas).

"[O]ur Supreme Court has held that when a trial court improperly accepts a guilty plea, the defendant ‘may obtain appellate review of this issue only upon grant of a writ of certiorari.’ " Demaio , 216 N.C. App. at 562, 716 S.E.2d at 866 (citation omitted) (quoting Bolinger , 320 N.C. at 601, 359 S.E.2d at 462 ). The State, in response to defendant's petition, argues that the writ should not issue in this case; the State asserts that, even assuming the trial court erred in advising defendant he could appeal the denial of his motion to dismiss, defendant has failed to show how his decision to plead guilty was based on this advice, or that it otherwise invalidated his plea where defendant averred that he entered the plea of his own free will, fully understanding what he was doing. The State nevertheless acknowledges that Rule 21 does not restrict this Court's jurisdiction to review a trial court's judgment or order by certiorari. See State v. Stubbs , 368 N.C. 40, 44, 770 S.E.2d 74, 76 (2015) ("[W]hile Rule 21 might appear at first glance to limit the jurisdiction of the Court of Appeals, the Rules cannot take away jurisdiction given to that court by the General Assembly in accordance with the North Carolina Constitution.").

Indeed, although recent Supreme Court decisions demonstrate that this Court has jurisdiction to grant certiorari on grounds not explicitly set forth in Rule 21, see, e.g. , State v. Thomsen , 369 N.C. 22, 26–27, 789 S.E.2d 639, 642–43 (2016) ; Stubbs , 368 N.C. at 43–44, 770 S.E.2d at 76, this Court's jurisprudence is far from clear in terms of whether this Court has the authority to grant certiorari to consider the validity of guilty pleas. See State v. Biddix , 244 N.C. App. 482, 485–89, 780 S.E.2d 863, 866–67 (2015) (discussing Appellate Rule 21 ).

In State v. Ledbetter (Ledbetter III ), ––– N.C. App. ––––, 794 S.E.2d 551 (per curiam), stay granted , 369 N.C. 484, 794 S.E.2d 527 (2016), ...