A short opinion issued recently by the Court of Appeals, State v. J.C., ___ N.C. App. ___ (Sept. 19, 2017), concerns two open questions about appellate review of a trial judge’s expunction decision. How can a party obtain appellate review? And, how can the person who petitions for an expunction make sure that the records of the appellate proceeding remain confidential? The Court’s opinion does not expressly address those issues, but the case provides guidance on both. Continue reading
Tag Archives: certiorari
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
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.
The court of appeals issued three opinions on Tuesday involving satellite-based monitoring (SBM) of sex offenders. In all three, offenders challenged trial court determinations that they had to enroll in SBM. As a threshold matter in each case the court of appeals considered whether the offender’s oral notice of appeal of the SBM determination was sufficient to bring the matter within the jurisdiction of the appellate division. In all three cases it wasn’t, but what the court did from there wasn’t the same in every case.
Before getting into the details I should say a word about appeals of SBM determinations more generally. The statutes governing SBM determinations (G.S. 14-208.40 through –208.45, especially G.S. 14-208.40A and -208.40B) do not clearly set out a right to appeal a trial court order to enroll in SBM. It wasn’t until State v. Singleton (N.C. Ct. App., 5 Jan 2010)—decided over a year and a half after the court of appeals issued its first SBM decision in State v. Williams, 190 N.C. App. 173 (2008)—that the court explicitly addressed the jurisdictional basis for SBM appeals. In Singleton, the court concluded that SBM determinations are a final judgment in a civil (not criminal) action, appealable under G.S. 7A-27(b) (“From any final judgment of a superior court . . . appeal lies of right to the Court of Appeals.”).
Then, earlier this year in State v. Brooks (N.C. Ct. App., May 18, 2010), the court concluded that under the Rules of Appellate Procedure, offenders appealing SBM orders must, as in any other civil matter, give written notice of appeal as required by Rule 3(a): “by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties.” Oral notice—sufficient in criminal actions under Rule 4(a)(1)—was deemed insufficient to confer jurisdiction on the appellate court in a civil matter such as this. The court nonetheless decided in Brooks to treat the offender’s brief as a petition for writ of certiorari and heard the appeal.
That brings us to Tuesday. In each case the offender gave oral notice of appeal at the conclusion of the SBM determination hearing. In State v. Oxendine, the court noted the insufficiency of the oral notice but decided on its own motion, “in the interest of justice,” to treat defendant’s brief as a petition for certiorari and to address the merits of his appeal. Likewise in State v. Clayton, the court noted the lack of written notice of appeal, but then granted the defendant’s request to treat his brief as a cert petition. Doing so, the court noted that State v. Bare (the first case in which the court declared SBM to be civil in nature and not punishment, decided June 16, 2009, and discussed here), Singleton, and Brooks were all decided after Clayton noticed his appeal (on March 5, 2009), and so he didn’t have any indication at that time that oral notice under Rule 4(a)(1) was improper.
In State v. Inman, though, the court dismissed the defendant’s appeal based on the lack of written notice of appeal and declined to treat the appeal as a petition for writ of cert because the brief didn’t “contain the requisite documentation to meet the requirements set forth by our Appellate Rules for consideration of a writ of certiorari.” Judge Stroud dissented, noting that the court had “previously considered purported appeals as petitions for certiorari in other cases.” (Just like Mr. Clayton, Inman gave his oral notice of appeal in March of 2009—well before Bare, Singleton, and Brooks were decided.) The dissent is a Pyrrhic victory for the defendant, though, as Judge Stroud went on to say that she would have affirmed the trial court’s order requiring lifetime SBM. The defendant abandoned his argument that that the trial court had insufficient evidence to show that he committed an aggravated offense, instead choosing to focus on constitutional arguments. And so the issue of whether Inman’s indecent liberties conviction could ever be an aggravated offense requiring lifetime SBM—which it clearly cannot be under the elements-based test set out in State v. Davison (discussed here)—was not before the court.
Going forward, defense lawyers handling SBM determinations should be sure to note their appeals in writing as required by Rule 3(a) of the Rules of Appellate Procedure.
[As an aside, the court’s summary of the facts in Inman indicated that the defendant received five consecutive 60-month probationary sentences. “[I]n other words,” the court summarized, “defendant received a total of 300 months of supervised probation.” Looking at the record (p. 36-47), it’s not clear to me that’s what the trial court ordered, but suffice it to say: periods of probation cannot be stacked. G.S. 15A-1346(a).]
Category: Procedure, Sentencing, Uncategorized | Tags: certiorari, notice of appeal, satellite based monitoring, sex offenders
