The Court of Appeals recently held in State v. Summers that a defendant has no right to appeal when deferred prosecution probation is revoked. Continue reading
Tag Archives: appeals
It was an epic throw down between two powerhouse teams on Monday in the heart of London. I don’t mean basketball. I certainly don’t mean football. I mean the moot court competition between UNC’s School of Law students and Middle Temple’s barristers-in-training (see earlier post this fall about Middle Temple). No winner was declared, to the disappointment of my students who were rooting on their fellow Tar Heels. But, the teams racked up the legal and educational points. Continue reading →
Criminal procedure aficionados, close your red books and riddle me this:
A district court judge in a DWI case preliminarily grants a defendant’s motion to suppress. The State appeals to superior court. The superior court affirms the district court’s determination and remands the case for entry of an order suppressing the evidence and dismissing the charges. The district court enters the order. Does the State have the right to appeal?
Category: Motor Vehicles, Procedure | Tags: 15A-1432, 20-38.7, appeals, DWI procedure, motion to dismiss, motion to suppress, riddle, state v. parisi
I was surprised by one of the provisions included in the omnibus criminal law bill, S.L. 2015-247, that Jeff summarized yesterday. The act amended G.S. 15A-1347 to say that when a defendant whose probation is revoked in district or superior court appeals that revocation, “probation supervision will continue under the same conditions until the termination date of the supervision period or disposition of the appeal, whichever comes first.” The change was effective immediately when the governor signed it on September 23, and people are already asking what it means. Here are my thoughts. Continue reading →
Suppose that after judgment is entered a defendant wants to challenge a plea. Maybe he alleges that the plea wasn’t knowing and voluntary. Or maybe he claims that the judge imposed an illegal sentence. Can the defendant do this? I like to break this question into two parts: (1) Does the claim survive the plea? (2) If so, what procedural mechanism can be used to assert it? This post addresses both issues. Continue reading →
Category: Procedure | Tags: appeals, challenging a plea, guilty pleas, motions for appropriate relief, plea bargaining, plea negotiation, pleas
Last month, the Supreme Court of North Carolina decided State v. Stubbs, an important case regarding appellate review of orders granting motions for appropriate relief. Continue reading →
Category: Procedure, Uncategorized | Tags: appeals, certiorari, MAR, motions for appropriate relief, starkey, stubbs
S 182 is on the Governor’s desk. It is entitled in part “An Act to Eliminate Appeals for Infractions.” The bill also does some other things, but the focus of this post is on the potentially significant change in the way that infractions are processed.
Current law. Under current G.S. 15A-1115, “[a] person who denies responsibility and is found responsible for an infraction in the district court, within 10 days of the hearing, may appeal the decision to the criminal division of the superior court for a hearing de novo.” The trial de novo is a jury trial unless the defendant agrees to a bench trial, and a finding of responsibility may be appealed to the appellate division.
Changes under the bill. S 182 would amend G.S. 15A-1115 to remove virtually all references to appeals of infractions. Because “[a] defendant’s right to appeal a conviction is purely statutory,” State v. Santos, 210 N.C. App. 448 (2011), this appears to accomplish the intended goal of extinguishing the right to appeal infractions. (Infractions that are originally disposed of in superior court, such as infractions that are lesser included offenses of crimes within the superior court’s jurisdiction, may still be appealed to the appellate division.)
Significance of the changes. According to data published here by the Administrative Office of the Courts, there are approximately 600,000 infraction cases each year. The data don’t reveal how many are appealed to superior court, so I would be interested in readers’ perspectives on the practical significance of the change. I imagine that one of the purposes of the bill is to streamline procedures and save money, so the frequency of appeals is an important matter. The bill doesn’t have a fiscal note or any other analysis that I could find that addresses that issue.
Other states. Although there is no federal constitutional jury trial right for “petty offenses,” Baldwin v. New York, 399 U.S. 66 (1970), some state constitutions guarantee the right to a jury trial for infractions. See, e.g., Cunningham v. State, 835 N.E.2d 1075 (Ind. Ct. App. 2005); Riemers v. Elsinger, 781 N.W.2d 632 (N.D. 2010) (certain infractions). Other states provide jury trials as a matter of statute, as North Carolina historically has done, while others do not provide jury trials for infractions. See, e.g., Cal. Penal Code § 19.6 (“A person charged with an infraction shall not be entitled to a trial by jury.”); Alaska Stat. § 28.90.010 (“[N]or does a person cited with an infraction have a right to trial by jury.”).
Chief Justice Roberts recently noted that the Supreme Court is a “hot bench,” meaning a court that frequently interrupts lawyers’ presentations with questions. Indeed, he suggested that the Court, himself included, has gone too far in that direction, allowing lawyers too little opportunity to say what they deem most important. His remarks on the subject drew attention on SCOTUSblog and elsewhere. The frequency with which the Justices ask questions has attracted substantial notice in recent years, including when Justice Kagan interrupted emeritus Duke Law professor and former Solicitor General Walter Dellinger before he even got out “Mr. Chief Justice and may it please the Court.” (See the CNN report concerning the mild faux pas here.)
In his remarks, Chief Justice Roberts explained that the Justices don’t discuss cases with one another in advance of oral argument, so they may ask questions during the argument as a way of communicating their views to their colleagues. As National Law Journal reporter Marcia Coyle described it in an interview, “[o]ften, [the Justices are] talking to each other during oral arguments, and lawyers are the conduit for an idea or a suggestion.”
It hasn’t always been this way. The Justices didn’t interrupt arguments much at all in the Court’s early days. Even in the 1950s and 1960s, questions were relatively few and far between. Since then, the frequency of questions has increased, perhaps accelerating after Justice Scalia joined the Court in 1986. Former Solicitor General Paul Clement, who clerked for Justice Scalia, has asserted that Justice Scalia “changed the dynamic” with his active questioning. Others have suggested that the turning point was Justice Rehnquist’s promotion to Chief Justice (at the same time as Justice Scalia’s appointment) or that the combined effect of Justices Scalia, Ginsburg, and Breyer made the crucial difference.
Scholars have attempted to quantify the movement towards more questions. The most comprehensive study shows an advance in questioning since the mid-1980s, from about 80 questions per argument to well over 100, though the trend has been uneven. Timothy R. Johnson et al., Inquiring Minds Want to Know: Do Justices Tip Their Hands with Questions at Oral Argument in the U.S. Supreme Court?, 29 Wash. Univ. J. L. & Pol’y 241 (2009). The study also notes a trend towards longer questions – i.e., more words per question asked – a development that further sidelines the role of the attorneys in favor of intra-Court communication.
For practicing lawyers, the above may be mainly of intellectual interest. The key practical issue is how to handle a hot bench. The Chief Justice offered a few suggestions. First, he acknowledged that it is inherently difficult to handle a barrage of questions, often coming more than one at a time. He counseled against showing overt frustration with the interruptions and recommended addressing the most recent question first, returning to previous questions next. Finally, he noted that in some cases, standing silent for a moment in the face of a cavalcade of questions may shame those asking the questions into allowing the attorney time to answer. Readers with substantial appellate experience, what practice pointers do you have for handling a hot bench? And how do our appellate courts compare to the Supreme Court in this regard?
Category: Uncategorized | Tags: appeals, chief justice roberts, hot bench, oral argument, supreme court
Two cases this month from the Court of Appeals, one published and one not, offer different perspectives on the meaning of an appeal for a “trial de novo” in superior court. Neither of the cases speaks directly to what a trial de novo is, but they offer an opportunity to think about the difference between an ordinary appeal and an appeal for a trial de novo. It also is an opportunity to note that lawyers and courts seem to confuse the concept of trial de novo when it comes to appeals of contempt.
To remind you, misdemeanors are first tried before a judge in district court. If the defendant is acquitted, that’s the end of the case. If convicted, the defendant may appeal to superior court for a trial de novo, this time with a jury. The state saves considerable money and time in prosecuting misdemeanor cases because the district court trial is without a jury or court reporter and most defendants accept the verdict there, while the constitutional right to a jury is preserved by the option of carrying the case to superior court.
But what exactly is a trial de novo? It doesn’t take much Latin to understand that de novo means new, so the concept is a new trial. It’s still an appeal, though, so does that limit how new the new trial is to be?
The answer is no. The most commonly stated explanation of appeal to superior court for a trial de novo is that “it is as if the case had been brought there originally and there had been no previous trial.” State v. Sparrow, 276 N.C. 499, 507 (1970). Or, put another way, “The judgment appealed from is completely annulled and is not thereafter available for any purpose.” Id. The appeal to superior court, unlike an appeal to the Court of Appeals or Supreme Court, is not an appeal on the record. It is not an appeal based on error in the district court; it is an appeal of right. The appeal is available even if the defendant pled guilty in district court. “It is a new trial as a matter of absolute right from the beginning to the end. It totally disregards the plea, trial, verdict, and judgment of the District Court.” State v. Brooks, 287 N.C. 392, 405 (1975).
The United States Supreme Court has characterized the verdict in the lower court in a trial de novo system as “no more than an offer in settlement” of the state’s case. Colten v. Kentucky, 407 U.S. 104, 119 (1972). The defendant is free to either accept the offer or appeal and seek the decision of a jury in superior court. As the North Carolina Supreme Court has said:
The purpose of our de novo procedure is to provide all criminal defendants charged with misdemeanor violations the right to a ‘speedy trial’ in the District Court and to offer them an opportunity to learn about the State’s case without revealing their own. In the latter sense, this procedure can be viewed as a method of ‘free’ criminal discovery.
Brooks, 287 N.C. at 406.
Because the appeal is a trial de novo and the slate is wiped clean of the district court proceedings, the superior court may impose a harsher sentence than the defendant received below. Colten v. Kentucky, supra; State v. Sparrow, supra. The defendant may not be questioned about having pled guilty in district court. State v. Overby, 4 N.C. App. 280 (1969). Nor may the defendant be asked about failing to testify in district court. State v. Ferrell, 75 N.C. App. 156 (1985). On the other hand, the state is no longer bound by a plea bargain which allowed the defendant to plead to a lesser charge in district court; it may proceed on the original charge in superior court. State v. Fox, 34 N.C. App. 576 (1977).
Remember that the appeal for trial de novo to superior court is an appeal as a matter of right; it is not based on legal error in the district court. Consequently, procedural defects in the district court, even constitutional violations, are irrelevant to the new trial in superior court. Thus, for example, it does not matter whether the defendant was denied the right to introduce evidence in district court; the trial de novo provides that opportunity and preserves the defendant’s rights. State v. Williams, 41 N.C. App. 287 (1979).
Now, to this month’s two opinions from the Court of Appeals. The first, State v. Macon, is consistent with all we have just said about the meaning of a trial de novo. Macon — about which my colleague Shea Denning already has blogged for other reasons — actually was about a mistrial and whether at the new trial the judge was bound by a ruling of the judge in the first trial on jury instructions. The Court of Appeals said no, the rule about one trial judge not overruling another (discussed in excruciating detail in this bulletin), did not apply in this situation because “’the new trial is “[a] trial de novo, unaffected by rulings made therein during the [original] trial.”’” (quoting Burchette v. Lynch, 139 N.C. App. 756, 760 (2000)). That explanation of a trial de novo following a mistrial is exactly what one would expect from the case law about trial de novo on appeal to superior court.
The second Court of Appeals opinion, the unpublished one, however, is hazier on the trial de novo concept. In re Foster involved an Asheville lawyer who apparently missed all those classes on professionalism and civility and also apparently learned just enough about the First Amendment to think she could say anything she wanted anytime she wanted. She got this case started by repeatedly cursing a magistrate at the county jail, generously mixing in the f-word with other insults. The magistrate responded by summarily holding the lawyer in criminal contempt (and then overreacted by setting a $10,000 cash-only bond when the lawyer announced she was appealing the contempt).
Under the criminal contempt statutes an appeal from a magistrate is to superior court for a hearing de novo. That is, a new trial altogether. When the appeal went to superior court, however, the testimony covered the magistrate’s behavior as well as that of the lawyer, including whether the magistrate had warned the lawyer about being held in contempt and given her a chance to respond. Even when direct criminal contempt is being dealt with summarily, the judicial official has to pause, tell the defendant that contempt is on the table, and give the defendant a chance to respond why sanctions should not be imposed.
The superior court found the lawyer in contempt, but the Court of Appeals reversed. It did so because the magistrate failed to give the lawyer the opportunity to say why contempt sanctions should not be imposed. But missing from the briefs and from the opinion is discussion of why the magistrate’s handling of the contempt mattered if the lawyer got a hearing de novo in superior court. Remember, an appeal to superior court for a trial de novo is not an appeal on the record, it is not based on error by the magistrate. It is an altogether new proceeding, one purpose of which is to protect any rights denied at the original hearing. The defendant lawyer’s right to explain why contempt was not appropriate was preserved by the new hearing in superior court.
The unusual circumstances of Foster probably explain why the Court of Appeals viewed the appeal to superior court more like an appeal on the record than a de novo proceeding. Upon being held in contempt by the magistrate on Saturday evening the lawyer was taken straight to jail and could not post the $10,000 cash bond. She remained locked up until the bond was changed Monday morning by a judge. Thus, even though the subsequent contempt hearing in superior court was de novo, she already had served part of the five-day contempt sentence. Indeed, when the superior court found her in contempt the judge ordered that she be jailed for 48 hours but then gave credit for that amount of time already served.
Given those facts, it is not surprising that everyone involved in the appeal to the Court of Appeals focused on the propriety of the magistrate’s original decision on contempt rather than on the de novo aspect of the superior court proceeding. Still, the case creates some confusion about the meaning of an appeal for a trial de novo. And it reinforces my perception that lawyers handling appeals of contempt from magistrates and district court often want to argue about the procedure followed by the magistrate or district judge even though the superior court hearing is de novo. Apparently it is the immediacy of the contempt sanction, the fact that the offender may have already sat in jail for a while, that triggers the sense that one cannot really start over.
(As a footnote, a bill pending in the General Assembly would require review of the bail bond within 24 hours of the defendant being jailed for criminal contempt. The bill met the crossover deadline and remains eligible for final action this session.)
I’ve been asked a couple of times recently whether the state can obtain appellate review of a judge’s order granting a defendant’s motion for appropriate relief, or MAR. The questions have come up in the context of superior court proceedings, so that’s what this post will address. The answer might be different for district court cases, as Jessie Smith notes in this paper.
The crucial, and confusing, case in this area of law is State v. Starkey, 177 N.C. App. 264 (2006). In Starkey, the defendant was charged with possession of a miniscule amount of cocaine and with being a habitual felon. He was convicted, and the trial judge sentenced him to 70 to 93 months. The judge then sua sponte granted his own MAR, finding the sentence unconstitutionally harsh, and resentenced the defendant to 8 to 10 months. The state sought to review the judge’s order by (1) appeal and (2) petition for a writ of certiorari.
The court of appeals first analyzed the state’s right to appeal. The court treated the MAR as if it had been made under G.S. 15A-1414, which allows virtually any error to be the subject of a defendant’s MAR so long as the motion is filed within 10 days of the entry of judgment. Technically, this wasn’t correct, since the MAR at issue in Starkey was the court’s motion, not the defendant’s, but since this post is concerned with MARs filed by defendants, that doesn’t matter. The court noted that G.S. 15A-1422(b) governs appeals in proceedings concerning MARs filed under G.S. 15A-1414. That subsection provides that “[t]he grant or denial of relief sought pursuant to G.S. 15A-1414 is subject to appellate review only in an appeal regularly taken.”
The court stated that an appeal “regularly taken,” as applied to appeals by the state, means an appeal under G.S. 15A-1445. Fair enough, since that’s the section captioned “Appeal by the State.” Further, the court stated that “it is the underlying judgment and not the order granting [the MAR] from which the State must have the right to take an appeal.” I’m not so sure that’s right. As authority for that statement, the court cited State v. Howard, 70 N.C. App. 487 (1984). In Howard, a defendant filed an MAR and won a new trial, but was denied outright dismissal. He tried to appeal the trial court’s refusal to dismiss, but the court of appeals ruled that he couldn’t because (a) the order denying dismissal was interlocutory until after the new trial took place, and (b) G.S. 15A-1444, which governs a defendant’s right to appeal, expressly states that a defendant may appeal when “final judgment has been entered.” Note that there’s no similar “final judgment” language in G.S. 15A-1445. In fact, G.S. 15A-1445 explicitly allows at least some appeals that are interlocutory in nature: G.S. 15A-1445(a)(2) provides for appeals “[u]pon the granting of a motion for a new trial on the ground of newly discovered . . . evidence.” And the law generally allows interlocutory appeals by the state more freely than by the defense because double jeopardy often prevents appeals by the state after an acquittal. Because appeals by the state under G.S. 15A-1445 are so different from appeals by the defendant under G.S. 15A-1444, I’m not sure that Howard really support’s the court’s conclusion in Starkey that G.S. 15A-1445 doesn’t encompass appeals of orders granting MARs.
Whether it does or doesn’t, of course, Starkey is the law on this point. And interpreting an appeal “regularly taken” to mean an appeal of the underlying judgment, not of the order granting the MAR, the Starkey court found that the state had no right to an appeal regularly taken because the underlying judgment – the original one that imposed a sentence of 70 to 93 months – did not dismiss charges, grant a new trial, or impose an unlawful sentence, which are the only grounds for appeal by the state as provided in G.S. 15A-1445.
The court next analyzed the state’s right to seek review through a petition for a writ of certiorari. Such writs are governed by N.C. R. App. P. 21, which states that a writ may issue:
to permit review of the judgments and orders of trial tribunals when [1] the right to prosecute an appeal has been lost by failure to take timely action, or [2] when no right of appeal from an interlocutory order exists, or [3] for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.
The state conceded, and the court of appeals found, that none of those three conditions obtained. The court also declined to exercise its authority to suspend its own rules. Concluding that the state had neither a right to appeal nor a right to certiorari review, the court dismissed the state’s appeal. Judge Hunter’s concurrence emphasized that the trial judge’s order contradicted settled Eighth Amendment law, and suggested that the state supreme court could review the order under that court’s general supervisory authority. See generally State v. Norris, 360 N.C. 507 (2006). However, the supreme court declined to review the case. Starkey has since been applied in the factually identical case of State v. Griffin, 2011 WL 3890856 (N.C. Ct. App., Sept. 6, 2011) (unpublished) (following Starkey and dismissing the state’s appeal; rejecting the state’s argument that in Griffin it sought to appeal the second judgment rather than the order granting the MAR).
Although the state conceded in Starkey that none of the conditions of Rule 21 were present, it may be otherwise in cases where a judge grants an MAR and orders a new trial or a new sentencing hearing, as opposed to entering a final order such as a new judgment, as was apparently done in Starkey, or a dismissal. The argument would be that the order granting a new trial or a new sentencing hearing is an interlocutory order from which there is no right of appeal, and so meets the second condition for certiorari review.
So where does that leave us? Here’s my short summary.
For MARs filed pursuant to G.S. 15A-1414 (almost any grounds, within 10 days after entry of judgment):
- The state may appeal an order granting a new trial on the ground of newly discovered evidence, under G.S. 15A-1445(a)(2)
- The state may seek certiorari review of an order granting a new trial or a new sentencing hearing on any other ground, under N.C. R. App. P 21
- The state cannot obtain review of an order dismissing charges or imposing a new sentence, under Starkey, except perhaps somehow under the supreme court’s general supervisory power
For MARs filed pursuant to G.S. 15A-1415 (limited grounds, any time after entry of judgment except in capital cases):
Remember that Starkey analyzed G.S. 15A-1422(b), while appeals in MAR proceedings under G.S. 15A-1415 are governed by G.S. 15A-1422(c). That subsection provides that rulings on MARs may be reviewed:
(1) If the time for appeal from the conviction has not expired, by appeal.
(2) If an appeal is pending when the ruling is entered, in that appeal.
(3) If the time for appeal has expired and no appeal is pending, by writ of certiorari.
The absence of the “regularly taken” language in G.S. 15A-1422(c) might at first seem to open the door to a broader right of appeal. But in fact, MARs filed under G.S. 15A-1415 are usually filed after an unsuccessful appeal, or instead of one, so neither (1) nor (2) will typically apply. In the end, I think the rules are generally the same as they are for MARs filed under G.S. 15A-1414:
- The state may appeal an order granting a new trial on the ground of newly discovered evidence, under G.S. 15A-1445(a)(2)
- The state may seek certiorari review of an order granting a new trial or a new sentencing hearing on any other ground, under N.C. R. App. P 21
- The state cannot obtain review of an order dismissing charges or imposing a new sentence, under Starkey, except perhaps somehow under the supreme court’s general supervisory power
I’m sorry for the long post. As I noted at the beginning, this is a confusing area of the law. I hope that I’ve untangled it correctly.
