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Case Summaries – N.C. Court of Appeals

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Continuing our new practice of posting North Carolina appellate court case summaries to the blog, this post provides summaries of the North Carolina Court of Appeals opinions published on August 6, 2019.

G.S. 15A-544.5 is the exclusive avenue of relief from a bond forfeiture that has not yet become a final judgment and thus the trial court erred by granting such relief in reliance on G.S. 15A-301

State v. Ortiz, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  In this bond forfeiture case, the trial court erred by granting the sureties relief from a bond forfeiture before the date of the forfeited bond’s final judgment.  The court first determined that the Board of Education’s appeal of the trial court’s grant of relief was timely as it was filed two days after the trial court’s entry of final judgment on the sureties’ motion to strike the forfeited bond, which, the court concluded, occurred upon the entry of the trial court’s written order granting relief rather than upon an earlier oral ruling.  Turning to the merits, the court held that because G.S. 15A-544.5 is the exclusive avenue of relief from a bond forfeiture where the forfeiture has not yet become a final judgment, the trial court erred by granting relief under G.S. 15A-301, a statute that grants judicial officials the authority to recall criminal process in certain circumstances.  By its terms, G.S. 15A-544.5 clearly and unambiguously instructs that it is the exclusive avenue of relief from a bond forfeiture that has not yet become a final judgment.  The trial court’s order specifically stated that none of the seven reasons for setting aside a forfeiture enumerated in G.S. 15A-544.5 existed in this case, and it was error to rely on G.S. 15A-301 as an alternative source of authority.

(1) A habitual larceny indictment was not facially invalid for failure to allege that the defendant was represented by or waived counsel in connection with prior larceny convictions; (2) Defendant did not establish that his trial counsel lacked authority to stipulate to the prior convictions used to elevate his charge to habitual larceny; (3) Defendant was not prejudiced by the trial court’s failure to formally arraign him on the special indictment alleging prior larceny convictions; (4) Use of an ACIS printout to prove one of the defendant’s prior convictions during the habitual felon phase of trial was competent evidence that did not violate the best evidence rule

State v. Edgerton, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  In this habitual larceny case where the defendant was sentenced as a habitual felon, the court held: (1) that the habitual larceny indictment was not facially invalid for failure to allege all essential elements of the offense; (2) the defendant did not establish that his trial counsel did not have authority to stipulate to the prior convictions used to elevate his charge to habitual larceny; (3) the defendant was not prejudiced by the trial court’s failure to formally arraign him on the indictment alleging the prior convictions; and (4) the use of an ACIS printout to prove one of the defendant’s prior convictions during the habitual felon phase of trial was competent evidence that did not violate the best evidence rule.

(1) The defendant argued that the habitual larceny indictment was facially invalid because it did not specifically allege that he was represented by counsel or had waived counsel in the proceedings underlying each of his prior larceny convictions.  G.S. 14-72(b)(6) provides that a conviction for a larceny offense may not be used as a prior conviction for purposes of elevating misdemeanor larceny to felony habitual larceny unless the defendant was represented by counsel or waived counsel.  Reviewing the structure of G.S. 14-72(b)(6), the North Carolina Supreme Court’s definition of the elements of the offense in a prior case, and the availability to defendants of information regarding their counsel when they obtained prior convictions, the court held that representation by or waiver of counsel in connection with prior larceny convictions is not an essential element of felony habitual larceny and thus need not be alleged in an indictment for that offense.  Because representation by or waiver of counsel is not an essential element of the offense, the court also rejected the defendant’s related sufficiency of the evidence argument.

(2) Noting that in other contexts it had expressly rejected attempts to analogize counsel’s stipulation of a prior conviction to counsel’s entry of a guilty plea or admission of a defendant’s guilt to a jury, the latter being decisions which must be made exclusively by the defendant, the court likewise rejected the defendant’s analogy in this case.  Citing a prior decision, the court explained that a defendant’s attorney may stipulate to an element of a charged crime and that an attorney is presumed to have the authority to act on behalf of his or her client during trial, including while stipulating to elements.  The record in this case did not show that the defendant’s attorney acted without his authority with regard to the stipulation.

(3) G.S. 15A-928 mandates that in cases where a previous conviction elevates a later offense to a higher grade a trial judge must arraign a defendant on the special indictment that alleges the prior convictions.  Because it is a statutory mandate, a trial judge’s failure to so arraign a defendant automatically is preserved for appellate review regardless of whether the defendant objects at trial.  Reviewing the record, including the fact of the stipulation to the convictions, the court concluded that the defendant was not prejudiced by the trial court’s error.

(4) Citing State v. Waycaster, ___ N.C. App. ___, 818 S.E.2d 189 (2018), the court explained that G.S. 14-7.4 permits an original or certified copy of the court record of a prior conviction to be admitted into evidence to prove the prior conviction but does not mandate that manner of proof.  The same case held that a certified copy of an ACIS printout is sufficient evidence of a prior conviction under the habitual felon statute.

(1) The defendant’s act of gesturing towards a law enforcement officer with his middle finger extended gave rise to reasonable suspicion to conduct an investigatory stop of the vehicle in which the defendant was traveling; (2) A defendant may not stipulate to the use in calculating his or her PRL of a prior offense that is classified as an infraction at the time of the current offense

State v. Ellis, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  (1) Over a dissent, the court held that a traffic stop was justified based on reasonable suspicion and that the further detention of the defendant during the stop was justified based on the defendant’s commission of a crime during the stop.  While assisting a stalled motorist, a trooper observed the defendant gesture towards him “in an up-and-down pumping motion with his middle finger extended,” which caused the trooper to pursue the defendant’s vehicle and pull it over.  The trooper asked the defendant for his identification but the defendant refused to comply.  With regard to the legality of the stop, the court concluded that the trooper had reasonable suspicion because “[the defendant’s] actions, both his waving and middle finger taken together, aimed at an unknown target could alert an objective officer to an impending breach of the peace.”  The court went on to determine that the trooper legally detained the defendant after making the stop based on the defendant’s commission of RDO by refusing to provide his identification.  A dissenting judge would have held that “extending one’s middle finger to a police officer from a moving vehicle . . . [is] protected speech under the First Amendment and therefore cannot give rise to a reasonable suspicion of disorderly conduct.”

(2) The trial court erred in calculating the defendant’s PRL where the defendant stipulated that a prior conviction for expired operators’ license was a Class 2 misdemeanor when, at the time of sentencing for his current offense, it was an infraction.  G.S. 15A-1340.21(b) provides that an offense may be included in determining a defendant’s PRL only “if it is either a felony or misdemeanor at the time the offense for which the offender is being sentenced is committed.”  Distinguishing State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that a defendant’s stipulation regarding the classification of a prior felony conviction was binding as a factual determination where two possible classifications existed for the offense at issue, the court explained that because “no misdemeanor category crime for possession of an expired operators’ license existed at the time Defendant was sentenced for his current offense” as a matter of law the defendant could not stipulate as he did.

The trial court erred by failing to conduct a competency hearing sua sponte where substantial evidence raised a bona fide doubt as to the defendant’s competency

State v. Hollars, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  In this indecent liberties and sex offense case, the court held, over a dissent, that the trial court erred by failing to hold a competency hearing sua sponte immediately prior to or during the defendant’s trial.  Where there is substantial evidence before the trial court that raises a bona fide doubt as to a defendant’s competency, the trial court has a constitutional duty to conduct a competency hearing.  Under the court’s precedent, evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant to a bona fide doubt inquiry.  The defendant’s numerable prior forensic evaluations indicated that he suffered from a range of diagnosed mental health disorders, and other medical evidence suggested that the defendant’s mental stability could drastically deteriorate over a brief period of time.  There was a five-month gap between the defendant’s competency hearing and his trial.  At trial, the defendant’s counsel raised the issue of the defendant’s competency with the trial court after becoming concerned due to his behavior, but the trial court did not thereafter engage in an extended colloquy with the defendant to explore this concern.  Under the totality of the circumstances, this evidence gave rise to a bona fide doubt regarding the defendant’s competency.  A dissenting judge would have held that there was no bona fide doubt as to the defendant’s competency, noting, among other things, that there was no evidence in the record of irrational behavior or change in demeanor by the defendant during trial and faulting the majority for resting its reasoning “almost entirely on [the defendant’s] prior competency evaluations.”

The trial court did not err by denying the defendant’s motion to withdraw his guilty plea where the defendant did not establish that withdrawal of his plea would prevent manifest injustice

State v. Konakh, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  In this case involving a motion to withdraw a plea and an MAR, the trial court did not err by denying the defendant’s motions.  On April 10, 2018 the defendant pleaded guilty to felony drug offenses, answering affirmatively that he understood the charges to which he was pleading and that he was in fact guilty of the charges.  On April 12, 2018 the defendant filed the motions at issue, alleging that he “felt dazed and confused” at the time of the plea because of lack of sleep and medications he was taking, did not understand that he was pleading to three felonies, did not understand what a consolidated judgment meant, did not have enough time to consider his plea and felt pressure to make a decision, and was not aware of the negative employment ramifications of his plea.  On April 16, the motions were heard in Superior Court, where the court made extensive findings of fact supporting its conclusion that the motions were without merit.  The defendant argued on appeal that the trial court erred because the circumstances demonstrated that withdrawal of his plea would prevent manifest injustice.  Specifically, the defendant argued that his plea should be withdrawn because he (1) is innocent, (2) pled guilty in haste, and (3) pled guilty in confusion based on erroneous beliefs about the nature of a consolidated judgment.  The court reviewed the record and, for reasons stated in the opinion, found each of these arguments meritless.

The district court had subject matter jurisdiction over a probation revocation hearing because of the defendant’s implied consent to the court’s exercise of jurisdiction

State v. Matthews, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  In this probation revocation case that was appealed by a petition for writ of certiorari, the court held that the defendant failed to demonstrate error with respect to the district court’s exercise of subject matter jurisdiction to revoke her probation.  On May 5, 2017, the defendant was placed on 12 months of supervised probation pursuant to a conditional discharge plea agreement related to a felony drug charge.  On March 4, 2018, the defendant’s probation officer filed a violation report asserting that she had only completed a small fraction of her court-ordered community service hours and had not yet paid in full her court costs and supervised probation fee.  At a May 4, 2018, hearing on the violation report, which resulted in the trial court finding a willful violation of probation and entering judgment on the felony drug charge, the defendant did not object to the district court’s jurisdiction and fully participated in the hearing.

The court first addressed its appellate jurisdiction, noting that the defendant’s various attempts to appeal the judgment did not comply with the Rules of Appellate Procedure but deciding to use its discretion to allow the defendant’s petition for writ of certiorari, in part because the issue of the district court’s subject matter jurisdiction to revoke her probation was one of first impression.  The court then turned to the merits, first explaining that under G.S. 7A-271(e) “the superior court generally exercises exclusive jurisdiction over probation revocation hearings even when the underlying felony conviction and probationary sentence were imposed through a guilty plea in district court.”  The court went on to explain that notwithstanding the statute’s general rule, it further provides as an exception that the district court has jurisdiction over probation revocation hearings when the State and the defendant, using the statute’s term, “consent” to the district court’s jurisdiction.  Noting that the term “consent” is not defined in the statute and has not been construed in this context by a North Carolina appellate court, the court rejected the defendant’s argument that it was necessary that her “express consent” appear in the record.  Instead, the court held that the term encompasses implied consent and that the defendant’s conduct in this case – fully participating in the hearing without objection and even going so far as to request additional relief from the court during the hearing – constitutes implied consent.

The term “business day” as used in G.S. 14-208.9A means any calendar day except Saturday, Sunday, or Legal holidays declared by G.S. 103-4

State v. Patterson, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  Over a dissent, the court held in this failure to register as a sex offender case that there was insufficient evidence that the defendant willfully failed to timely return an address verification form, deciding as a matter of first impression that the federal holiday Columbus Day is not a “business day” for purposes of G.S. 14-208.9A.  G.S. 14-208.9A requires registrants to return verification forms to the sheriff within “three business days after the receipt of the form.”  The defendant received the address verification form on Thursday, October 9, 2014.  The defendant brought the form to the sheriff’s office on Wednesday, October 15, 2014.  The intervening Monday, October 13, 2014 was Columbus Day.  The defendant was arrested for failing to timely return the form while he was at the sheriff’s office.

Noting that some statutory definitions of the term “business day” exclude Columbus Day while others include it, the court found the term as used in G.S. 14-208.9A ambiguous.  The court looked to the legislative history of the statute and the circumstances surrounding its adoption but was unable to discern a clear meaning of the term in that effort.  Operating under the rule of lenity, the court held that “the term ‘business day,’ as used in Chapter 27A, means any calendar day except Saturday, Sunday, or legal holidays declared in [G.S. 103-4].”  Because Columbus Day is among the legal holidays declared in G.S. 103-4, there was insufficient evidence that the defendant violated G.S. 14-208.9A.  A dissenting judge would have held that Columbus Day is a “business day,” in part because the sheriff’s office actually was open for business on that day and in part because G.S. 103-4 lists as “public holidays” various days “which no one would reasonably expect the Sheriff’s Office to be closed for regular business to the public.”  The dissenting judge identified several such days, including Robert E. Lee’s Birthday and Greek Independence Day.

The defendant was not entitled to an instruction on common law robbery as a lesser included offense of armed robbery where the trial court could have found a box cutter to be a dangerous weapon as a matter of law, though it did not do so

State v. Redmond, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  In this armed robbery case, the trial court did not err by failing to instruct the jury on the lesser included offense of common law robbery.  The court began its analysis by noting that “[o]nly one element distinguishes common law robbery and robbery with a dangerous weapon, and that element is the use of a dangerous weapon.”  The trial court did not instruct the jury that the box cutter the state’s evidence tended to show the defendant used during the robbery was a dangerous weapon as a matter of law and instead submitted that factual issue to the jury.  Relying on State v. Clevinger, ___ N.C. App. ___, 791 S.E.2d 248 (2016), the court held that the defendant was not entitled to an instruction on the lesser included offense because, though it did not do so, the trial court could have found the box cutter to be a dangerous weapon as a matter of law.

The court vacated the trial court’s imposition of lifetime SBM where the State did not produce evidence that lifetime SBM is effective to protect the public from sex offenders, as required by State v. Griffin

State v. Tucker, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  Over a dissent in this SBM case, the court relied on State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336 (2018) to vacate the trial court’s imposition of lifetime satellite-based monitoring of the defendant.  Under Griffin, “trial courts cannot impose satellite-based monitoring unless the State presents actual evidence—such as ‘empirical or statistical reports’—establishing that lifetime satellite-based monitoring prevents recidivism.”  Here, the State did not produce the sort of evidence required by Griffin.  The court noted that Griffin and several related cases were pending in the North Carolina Supreme Court.  A dissenting judge criticized Griffin and would have held that imposition of lifetime SBM in this case was reasonable under the circumstances and thus was reasonable under the Fourth Amendment.

A statement regarding mass violence must be made to another person or a group of people to constitute the “report” element of the offense of making a false report concerning mass violence on educational property

In Re D.W.L.B., ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019). In this juvenile delinquency case involving a charge of a false report concerning mass violence on educational property, the court held that the juvenile petition failed to sufficiently allege each element of the offense.  A janitor discovered the words “BOMB INCOMING” written in black magic marker in a school bathroom.  The court began its analysis by noting that it “typically hold[s] juvenile petitions to the same standards as adult criminal indictments.”  It first rejected the juvenile’s argument that the words “BOMB INCOMING” did not refer to “an act of mass violence” under G.S. 14-277.5(b).  The court continued, however, and concluded that the petition failed to allege that the juvenile had made “a report,” an essential element of the offense, by writing the graffiti. The court explained that “the essence of a Section 14-277.5 violation is not so much uttering or writing a statement, but rather making a report of the statement to someone else.”  The petition failed to allege that the juvenile directed his graffiti message to anyone in particular or that anyone in particular saw it.  Alternatively, the court said, “it would not be reasonable for a person seeing the graffiti on the bathroom wall to construe said graffiti as a report of a credible threat.”  On this issue, the court construed the relevant statutory language “to proscribe as a Class H felony . . . only credible reports, that is, those that a reasonable person would believe could represent a threat.”  The court went on to conclude that the petition did properly allege the crime of graffiti vandalism and that the evidence was sufficient to show that the juvenile was the person who wrote the graffiti.

Because the Affidavit submitted to DMV did not show that petitioner had willfully refused chemical analysis under G.S. 20-16.2, it was not a “properly executed affidavit” which conferred jurisdiction upon DMV to revoke petitioner’s license

Couick v. Jessup, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 6, 2019).  In this license revocation case arising from a DWI charge, the court concluded that the DMV did not have jurisdiction to revoke the petitioner’s drivers license because the affidavit submitted to the DMV showed that the arresting officer designated a blood test but that the petitioner refused a breath test.  Quoting extensively from Lee v. Gore, 365 N.C. 227 (2011) and emphasizing the DMV’s “limited authority” to suspend a driver’s license, the court explained that because the Affidavit and Revocation Report of Law Enforcement Officer form (DHHS 3907) filed in this case “states that [the officer] designated one type of test and the petitioner refused another type of test,” it did not evidence a willful refusal under G.S. 20-16.2 – a necessary condition precedent under these circumstances to the DMV’s exercise of jurisdiction to revoke the petitioner’s license.

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8 comments on “Case Summaries – N.C. Court of Appeals

  1. In the Ellis decisions, the dissent will end up prevailing. It is nonsense to imagine that flipping off a cop, long held by all competent courts as free speech, is somehow an indication of potential violence. Violence must be immanent, predictable and likely before it can be called a breach of the peace, which is the basis for all disorderly conduct statutes. The old excuses police use such as ” I thought you were trying to get my attention ” are obvious lies…it is the old case of ” contempt of cop ” being used as an excuse to violate the rights of the citizen. For an appeals court in this day and age to allow stops based on legal expressions of speech is disturbing. This case shows how when prosecutors become judges they never forget their inclination to side with police no matter what…even at the expense of justice. Sickening.

    • “This case shows how when prosecutors become judges they never forget their inclination to side with police no matter what…even at the expense of justice.” The converse, when defense attorneys become judges, could also be argued that they don’t forget their inclination to side with a defendant at the expense of justice.

      However, I agree, this case should and will be overturned. I’m a cop, I’ve been flipped off before. I never took it as an incitement to violence, or anything else, unless there was some form of verbal expression to go along with it which could have potentially been disorderly conduct. Even the act of someone flipping off a third party is not disorderly conduct, especially in a car. I’d argue it’s so common as to not count as “road rage” or anything other than an expression of frustration.

  2. Thank you for providing this insight into the NC Court of Appeals and it’s opinions. The only thing missing is the names of the Judges.

    • On appeal, Judges Chris Dillon and Wanda Bryant upheld Ellis’ conviction, while Judge John Arrowood dissented.

      I’d be shocked if the NC Supreme Court affirmed that decision. But then these judges are elected, political, and not subject to anything like merit selection or high judicial standards.

      I was pleasantly shocked when the NC Supreme Court reversed a wacky decision of the court of appeals in State v. Bishop. NC’s idiotic cyberbullying law was thereby ultimately declared unconstitutional.

  3. As an update to this post, Ellis was withdrawn by an Order entered on August 14, 2019:

    https://appellate.nccourts.org/orders.php?t=&court=2&id=364854&pdf=1&a=0&docket=1&dev=1

    • I take it that the Appeals Court decided to avoid the embarrassment of this being accepted by the Supreme’s and the inevitable rejection of their obvious attempt to make excuses for police abusing the Constitution. To conflate a gesture protected by the First Amendment with ” possible violence ” with absolutely no evidence or likely potential for violence, the type of fishing expedition denounced by all competent authority and that brings eye rolling and guffaws when read by fair minded parties.

    • I’m not saying I agree with the original ruling, but when you quickly withdraw your ruling, it really cheapens your reputation on the Court of Appeals.

  4. As an update to this post, In Re D.W.L.B. was withdrawn by an order entered on August 26, 2019:

    https://appellate.nccourts.org/orders.php?t=&court=2&id=364942&pdf=1&a=0&docket=1&dev=1

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