Update: The court of appeals has withdrawn this opinion.
I’ve had quite a few questions about the court of appeals’ recent decision in State v. Braswell, a case that imposes new procedural requirements on the state in certain misdemeanor appeals. This post will summarize and assess Braswell and will briefly address the prospects for further review.
The defendant in Braswell was driving while impaired, hit another vehicle, and sped off. He was eventually apprehended and charged with DWI and leaving the scene of an accident. He pled guilty to the DWI in district court, in exchange for dismissal of the hit and run charge. He appealed to superior court, the hit and run charge was reinstated, and he was convicted of both offenses. The defendant then sought review in the court of appeals.
The portion of the court of appeals’ ruling that has generated controversy is the holding that the hit and run charge was not properly before the superior court: “The State, Defendant and the trial court proceeded as if the State had indicted Defendant on the charge of leaving the scene of the accident, however, there is no such indication in the record. Our reading of [State v. Fox, 34 N.C. App. 576 (1977)] requires the State to, if it wishes to proceed on this charge, indict Defendant on the charge that was formally dismissed pursuant to the plea agreement.” Based on the foregoing, the court of appeals vacated the hit and run conviction. Interestingly, the jurisdictional issue was not raised in the defendant’s brief, nor was it addressed in the state’s brief. I don’t know whether it was addressed at oral argument.
In order to assess the court’s reasoning, it’s important to understand what happened in Fox. In that case, the defendant was charged with two counts of felony breaking or entering and two counts of felony larceny. In district court, the defendant pled guilty to two counts of misdemeanor breaking or entering in exchange for the dismissal of the larceny charges. He gave notice of appeal to superior court, but the superior court judge ruled that he had waived his right to appeal by virtue of his guilty plea in district court. The defendant appealed that ruling, and the court of appeals ruled (1) that even a defendant who pleads guilty in district court may appeal for trial de novo in superior court, and (2) that “[w]here a defendant elects not to stand by his portion of a plea agreement, the State is not bound by its agreement to forego the greater charge.” Expanding further on (2), the court stated, “[i]f the State elects to do so, the district attorney may send bills of indictment to the Grand Jury charging defendant with felonious breakings and enterings and felonious larcenies, as were charged in the two original arrest warrants. If one or more true bills are returned, the State may try defendant upon the felony charges or any included lesser offenses.” It was the reference to indictments in the last quoted passage from Fox that caused the court in Braswell to conclude that the hit and run charge was not properly before the superior court.
The Braswell court did not mention either of the statutes that address appeals to superior court following district court guilty pleas. Both statutes were enacted in 1980, apparently in response to the decision in Fox. See S.L. 1979, 2nd Sess., Ch. 1328. G.S. 15A-1431(b) provides that “[u]pon the docketing in the superior court of an appeal from a judgment imposed pursuant to a plea arrangement between the State and the defendant, the jurisdiction of the superior court over any misdemeanor dismissed, reduced, or modified pursuant to that plea arrangement shall be the same as was had by the district court prior to the plea arrangement.” And G.S. 7A-271(b) states that “[t]he jurisdiction of the superior court over misdemeanors appealed from the district court to the superior court for trial de novo is the same as the district court had in the first instance, and when that conviction resulted from a plea arrangement between the defendant and the State pursuant to which misdemeanor charges were dismissed, reduced, or modified, to try those charges in the form and to the extent that they subsisted in the district court immediately prior to entry of the defendant and the State of the plea arrangement.”
Putting all of this together, Braswell appears to have been decided in error. The indictment language in Fox makes sense because the charges that the state wanted to revive were felonies. It doesn’t make sense to require an indictment for a misdemeanor offense like the hit and run charge in Braswell, and in fact it isn’t clear that it is even permissible for the state to indict a misdemeanor with no transactional connection to a felony. Certainly there does not appear to be a jurisdictional need for an indictment in light of G.S. 15A-1431(b) and G.S. 7A-271(b), which expressly confer jurisdiction on the superior court. As far as I am aware, the practice in most districts has been that when a defendant appeals to superior court after a district court plea, the prosecutor notifies the clerk that the state wishes to reinstate any misdemeanor charges that were dismissed as part of the plea bargain, and the clerk places the revived misdemeanors on the superior court’s docket as part of the appeal. That procedure appears to be adequate. If any readers view Braswell differently and think that the court’s reasoning may have been correct, please say so. In the meantime, the state has moved for a temporary stay in Braswell. The motion indicates that the state intends to ask the court of appeals to reconsider its ruling. Stay tuned.