You Get What You Get and You Don’t Throw a Fit

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My daughter is awfully fond of this expression (when applied to one of her brothers, of course). Turns out it also is apropos for this week’s court of appeals decision in State v. Shaw.

Facts. The defendant in Shaw pled guilty to misdemeanor DWI in superior court. The trial court found one grossly aggravating factor, a prior conviction within seven years before the current offense, and imposed a Level Two punishment. Shaw was unhappy with this finding as the State had never provided her with notice of its intent to prove an aggravating factor as required by G.S. 20-179(a1). Thus, Shaw appealed her conviction to the court of appeals.

Holding. The court of appeals dismissed Shaw’s appeal on the basis that she had no statutory right to appeal. G.S. 15A-1444, which affords a defendant convicted of a crime in superior court the right to appeal in certain circumstances, did not apply to the defendant’s appeal from a judgment entered upon her plea of guilty to a misdemeanor impaired driving, an offense sentenced under G.S. 20-179 rather than the Structured Sentencing Act.

Analysis. G.S. 15A-1444(e) provides that a defendant who pleads guilty or no contest to a criminal charge in superior court generally is not entitled to appellate review as a matter of right. There are exceptions.

  1. A defendant who has filed a motion to withdraw his or her plea of guilty or no contest and whose motion has been denied may appeal to the court of appeals as a matter of right.
  2. A defendant who has pled guilty or no contest to a felony and who is sentenced outside of the presumptive range is entitled to appeal the issue of whether the sentence is supported by the evidence.
  3. A defendant who has pled guilty or no contest to a felony or misdemeanor may appeal the issue of whether the sentence imposed:
  • results from an incorrect finding of the defendant’s prior record level or prior conviction level under the Structured Sentencing Act;
  • contains a type of sentence not authorized by the Structured Sentencing Act for the defendant’s class of offense and prior record or conviction level; or
  • contains a term of imprisonment that is for a duration not authorized by the Structured Sentencing Act for the defendant’s class of offense and prior record or conviction level.

The court of appeals in Shaw concluded that none of these exceptions applied to the defendant. She had not unsuccessfully moved to withdraw her plea. She pled guilty to a felony misdemeanor, not a misdemeanor felony. And she was sentenced under G.S. 20-179 rather than the Structured Sentencing Act.

G.S. 15A-1444(e) provides that a defendant who is not entitled to appellate review as a matter of right may petition the appellate division for review by writ of certiorari.  Shaw requested on appeal that the court review the case under its certiorari jurisdiction.  The court concluded that it did not have the authority to do so under these circumstances, citing the limitations in Rule 21 of the Rules of Appellate Procedure.

Thus, unless Shaw can convince the state supreme court to grant certiorari review, or the trial court to grant relief pursuant to a motion for appropriate relief, it appears that she is stuck with the sentence imposed.

2 comments on “You Get What You Get and You Don’t Throw a Fit

  1. If a sentence is unlawful, due process of law requires that a motion to set aside the sentence be allowed and a re-sentencing hearing be held. That’s not the same as an appeal of the conviction; it’s essentially an appeal of the sentence. Under 20-179(a1)(1) the State must give written notice of its intent to use that grossly aggravating factor at minimum 10 days prior to trial. If the State doesn’t do that, then the State isn’t allowed to present the grossly aggravating factor. Under 20-179(c) the judge is constrained by the evidence presented at trial or at the sentencing hearing in making his or her decision. He isn’t allowed to investigate on his own to find that grossly aggravating factor. So for purposes of Shaw’s sentencing, Shaw did not have a grossly aggravating factor and the sentence was unlawful.

    A grossly aggravating factor is akin to (if not actually) an element of the crime. Level 1 DWI is a different crime than Level 5 DWI. Under the logic of the Shaw decision, a person who pleads guilty to simple assault could be sentenced to habitual misdemeanor assault ( a felony) and would be denied his right to appeal the sentence. A person who pleads guilty to class 3 misdemeanor possession of marijuana would be subject to the judge bumping it up to class 1 possession of marijuana upon finding the amount of marijuana was sufficient to support the conviction.

  2. Is the result different if Shaw filed an MAR seeking relief from the improper judgment, and the MAR was denied, and then the appeal of the denial of the MAR was filed?

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