I Want a New Trial! Now What? A District Court Judge’s Authority to Act Following Entry of Notice of Appeal for Trial De Novo (Part II)

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Recall from yesterday’s post that we are considering the following scenario:

Jay Jones is charged with possession of drug paraphernalia and given an unsecured bond of $1,000. He is convicted following a bench trial in district court. Noting that Jones is a prior conviction level III and has previously violated probation, the judge imposes an active sentence of 120 days. Jones enters notice of appeal in open court because he wants a jury trial. What may the district court judge properly say at this point?

(1) Bailiff, he’s in your custody to begin serving his active sentence unless and until a different result is reached in superior court.

(2) Mr. Jones, it is your right to appeal. However, I am securing and doubling your bond pending your trial in superior court. Bailiff, he’s in your custody.

(3) Mr. Jones, you are free to leave after the DA notifies you of your court date for superior court. The current bond remains in effect and this court has no power to do anything further in this matter.

Yesterday’s post addressed statement (1). Now, let’s consider the others.

Statements (2) and (3). The issue here is whether the district court judge retains jurisdiction to modify conditions of pretrial release after the defendant has entered notice of appeal. The statutes are not clear on this point. G.S. 15A-534(e)(1) states that a district court judge may modify a pretrial release order at any time prior to the noting of an appeal. This provision suggests that as soon as the defendant utters the words “I appeal” or files notice with the clerk, the district court is divested of jurisdiction to modify conditions of pretrial release.

Other statutes refer to the judge’s authority to modify bond pending appeal. See G.S. 7A-290 (“[t]he original bail shall stand pending appeal, unless the judge orders bail denied, increased, or reduced”); G.S. 15A-1431(e) (“[a]ny order of pretrial release remains in effect pending appeal by the defendant unless the judge modifies the order”); G.S. 15A-1431(f1) (“the judge may order any appropriate condition of pretrial release, including confinement in a local confinement facility, pending the trial de novo in superior court”). The fundamental question is: which judge is “the judge” for purposes of these statutes?

According to the Prosecutor’s Manual, “The enactment of G.S. 15A-1431(f1) cleared up any inconsistency between G.S. 15A-1431(e) and G.S. 15A-534(e) by giving a district court judge the authority to modify the defendant’s conditions of pretrial release after the defendant has given notice of appeal for trial de novo, up to the ten days after the judge entered judgment in district court.” North Carolina Prosecutor’s Trial Manual at 337 (January 2007). The “ten days” in the quoted passage refers to G.S. 15A-1431(c) and G.S. 7A-290, which provide that in cases appealed for a trial de novo the clerk of court transfers the case to superior court ten days after the district court’s judgment if the appeal has not been withdrawn. Prosecutors may argue that during these ten days, the case is not a CRS—it is not in the superior court division; thus, the district court judge is the appropriate judge to modify conditions under G.S. 15A-539(a). Under this theory, a case is not “before the superior court” for purposes of G.S. 15A-534(e), until it has been calendared there. The position that the district court judge retains jurisdiction to modify conditions pending appeal is consistent with the way bond is handled in appeals from superior court to the appellate division. See G.S. 15A-536; G.S. 15A-1453. However, this argument may not carry much weight because appeals to the superior court and appeals to the appellate division “are distinct and are designed to protect different interests and achieve different ends.” State v. Smith, 359 N.C. 618, 621 (2005). When a case is being appealed to the appellate division, there is an incentive to leave jurisdiction with the trial court so that a local judge can hear the matter; this incentive is lacking when a case is being appealed from the district court to the superior court.

Defense attorneys with whom I work do not agree that the language of G.S. 15A-1431(f1) resolves a discrepancy in the statutes. The way they see it, the language of G.S. 15A-534(e)(1) unequivocally deprives the district court  of authority to act following notice of appeal. Rules of statutory construction require that G.S. 15A-1431 be read in conformity with the clearly enunciated rule of G.S. 15A-534(e)(1); statutes in pari materia must be interpreted in light of each other with the more specific statute informing the more general one. The language in G.S. 15A-534(e), which refers to “a superior court judge” as the person who may modify bond following entry of notice of appeal is more specific than “the judge” referenced in G.S. 7A-290, and G.S. 15A-1431(e),(f1). Thus, they argue, “the judge” of G.S. 7A-290, and G.S. 15A-1431(e),(f1) is in fact the superior court judge; the district court judge, who is never explicitly mentioned, has no jurisdiction to modify pretrial release conditions once notice of appeal has been entered. The enactment of G.S. 15A-1431(f1) in August of 2005, I have heard it argued, merely served to clarify what portions of the district court sentence were stayed by an appeal in the wake of the Court of Appeals’ opinion in State v. Smith, 165 N.C. App. 256 (2004), reversed, 359 N.C. 618 (2005) (holding that while prior G.S. 15A-1431(f) failed to state that probation was stayed pending appeal, logic required this reading because a defendant remains on pretrial release pending appeal and may not simultaneously be on pretrial release and on probation for the same offense).

In sum, it is not crystal clear that the district court judge has authority to modify pretrial release conditions following entry of notice of appeal in light of the language to the contrary in G.S. 15A-534(e). If G.S. 7A-290 and G.S. 1431 do give a district court judge such authority, it appears that the outside time limit for the judge to act would be ten days after judgment in light of the case transfer provisions in G.S 7A-290 and G.S. 15A-1431(c). Some defenders have adopted a practice of filing written notice of appeal with the clerk on the afternoon of the tenth day after judgment, so that there is no chance for the judge who heard the evidence to penalize the defendant for appealing by setting a high appeal bond.

As a final matter, returning to statement (2), increasing a defendant’s bond upon appeal for a trial de novo raises potential constitutional problems. Suppose the judge had more pointedly said, “Mr. Jones, you are not going to get out of the sentence I imposed by appealing. If you want to appeal, I will secure and double your bond.” Assuming that a district court judge is authorized to modify conditions of pretrial release after notice of appeal and before expiration of the ten-day period following judgment, it is unconstitutional for the judge to use that authority to penalize the defendant for appealing. See generally North Carolina v. Pearce, 395 U.S. 711 (1969) (due process prohibits judge from increasing sentence on retrial to discourage appeal); see also In re Renfer, 345 N.C. 632 (1997) (Judicial Standards Commission recommended removal of district court judge from office for, among other things, improperly raising defendant’s bond in response to appeal).

Thanks to Troy Page, Associate Legal Counsel for the NC Administrative Office of the Courts, for his input on these posts. The conclusions are my own.

5 comments on “I Want a New Trial! Now What? A District Court Judge’s Authority to Act Following Entry of Notice of Appeal for Trial De Novo (Part II)

  1. I do not believe that a district court judge can modify pretrial release once notice of appeal is given. Specifically, N.C.G.S. §15A-534(e)(1) states that: “[A] district court judge may modify a pretrial release order of the magistrate or clerk or any pretrial release order entered by him at any time prior to: (e) (1) In a misdemeanor case tried in the district court, the noting of an appeal;”

    N.C.G.S. §15A-534 (e) (2009) emphasis added.

    Thus, under the plain language of the statute, once notice of appeal is given, the district court no longer has jurisdiction to modify a pretrial release order. Sometimes the state will like to use §15A-1453(a) which states: “ [w]hile an appeal is pending in the appellate division, the court in which the defendant was convicted has continuing authority to act with regard to the defendant’s release pursuant to Article 26, Bail,” § 15A-1453(a), this statute however is only applicable to cases that fall under article 91 (cases appealed to the appellate division-the court of appeals and the supreme court, and does not apply to cases in the trial division -the district and the superior court- which are governed by article 90.) See State v. Preston Smith supreme court no. 407PA04 (2005)- sorry I don’t have the nc supreme court case number but the court of appeals cite is 165 N.C. App. 256, 598 S.E.2d 408 (2004).

    • These issues came up recently after a bench trial in which Judge Samuel A. Cathey found defendant guilty of cyberstalking and then continued prayer for judgment on the payment of the costs and abiding by a 50C order.

      You can read more of the sordid details at the blawg and here:
      http://groups.google.com/group/alt.appalachian/browse_thread/thread/518aab70044429da?hl=en#

      • I want to make this very clear. Judge Sam Cathey issued first a PJC. After we gave notice of appeal he then entered judgment: 30 days suspended for 1 year, unsupervised probation, and several more conditions including the payment of over $500 in court costs.

        I next attended Superior court in Buncombe County Courthouse 4 times awaiting this scarecrow of a case to be called for trial. On the last appearance I grew impatient and desperate with being treated like a common criminal when I knew I was guilty of NOTHING. Besides, I knew I was not a criminal and I had no criminal record of any kind. I WAS BEING PROSECUTED FOR SEDITION AND I KNEW IT. I penned a letter in longhand to the DA, Ron Moore (now justly unmasked as a scoundrel and defeated at the polls) and demanded he dismiss the case and told him I was going to seek to have him indicted for violation of my civil rights (deprivation of rights under color of law in violation of 18 US Code, Section 242).

        A few days later he dismissed the case with prejudice.

        Sometime later, July of 2012, I learned that Cathey’s written judgment in our crooked clerk’s office had been altered, or more precisely FORGED, to sentence me to 30 days active time. Now if I had decided to ask the Superior Court judge to let me remand to the District Court for compliance, I would have received the shock of my life: I WOULD HAVE BEEN JAILED FOR THIRTY DAYS!

        I had been slightly tempted to seek remand because I didn’t have any idea how long this outrage would drag out and at 67 my health was impaired because of painful and crippling lumbar disc disease, scoliosis, asthma, cataracts, ear infections, and hypertension.

        But I knew from assiduous study of caselaw and Constitutional law that I had not committed cyberstalking, that our cyberstalking law was unconstitutional on its face, and that its application against me for innocuous content-based, non-threatening writings I had published to the whole world on the internet — in an internet forum — one to many rather than one to one and for a didactic purpose, was unconstitutional.

        Nothing whatsoever has been done to the corrupt judge, Samuel Cathey. And when I went to our crooked clerk, Steven Cogburn, to complain, he exploded in my face and acted like he was going to punch me. It was a sight, the war dance he did, while screaming and salivating and blowing saliva on me, just outside the barred windows in the clerk’s office. Two uniformed deputies came quickly and told me I was going to have to leave. Cogburn had breached the peace and acted like a crazy man, but I was to blame for it. I calmly asked them to go with me over to the criminal side of the clerk’s office which they did. Cogburn followed. We pulled the file and I showed them the corrupt judgment which you could see was altered and parts of it covered with liquid white-out and typed over.

        Cogburn then produced a woman whom I had never seen before and presented her as the courtroom clerk who had kept the minutes on the day of the bench trial before Judge Cathey. She produced a paperwriting which we all read. It was also corrupt because it stated in handwriting that I had been sentenced to 30 days active time in jail. I asked for a copy of these corrupt minutes but Cogburn quickly escorted this ugly little liar of a woman away and refused to let me have a copy of the “minutes.” Sometime later I found — in the clerk’s office — a typewritten copy of the official minutes for that day which accurately stated that the sentence was 30 days suspended for one year.

        Now do you see why I call North Carolina a banana republic? And this is not the only experience I have had with public corruption. This was not even 10% of the chicanery, decadence, judicial depravity, incompetence, and corruption I have personally witnessed in the Buncombe County Courthouse. And it goes all the way to Raleigh too, and to both of the appellate courts.

  2. I’m thinking of filling a motion to dismiss. My client was given a split sentence. After giving argument asking the Judge to allow her to turn herself in the following morning, the judge denied the request and closed court around 415 pm. After discussion with my client I entered a notice of appeal. The clerk then informed me that as the judge was getting off the bench he told the clerk and only the clerk that should my client decide to appeal that he was setting a 2500 secure bond. Neither myself or the ada were aware that he had done that. I feel this was a blatant violation of due process and the appropriate remedy is dismissal. Thoughts?

    • Your judge had no authority to alter the bond of the defendant after notice of appeal was given. By aggravating the bond, the judge punished your client for giving notice of appeal for trial de novo.

      In my opinion as an old soldier of the bar, your judge has committed a severe ethical violation. Not that it makes much difference but the Judicial Standards Commission is as worthless as the paps on a boar hog and judges are now disciplined, if at all, in secret.

      In short, I believe that your judge is, like Susan Renfer, corrupt. And because of massive judicial corruption in North Carolina, it has become a banana republic.

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