An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-83
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Davidson County
No. 13 CRS 728
HEATHER WINGATE MARTINEZ
Appeal by Defendant from Judgment entered 4 June 2013 by
Judge Mark E. Klass in Davidson County Superior Court. Heard in
the Court of Appeals 23 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Teresa M. Postell, for the State.
Mary McCullers Reece for Defendant.
STEPHENS, Judge.
Background
On 1 February 2012, Defendant pled guilty to misdemeanor
larceny in Guilford County Superior Court. The trial court
sentenced Defendant to 120 days imprisonment, but suspended the
sentence and placed Defendant on supervised probation for 18
months. The judgment also provided that Defendant’s probation
could be transferred to Davidson County.
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On 12 March 2013, Defendant’s probation officer filed a
violation report alleging four violations, including an
allegation that Defendant violated the condition that she
“[c]ommit no criminal offense in any jurisdiction.” The trial
court conducted a probation violation hearing on 4 June 2013.
Defendant admitted the violations, and the trial court revoked
Defendant’s probation “for the willful violation of the
condition[] that []she not commit any criminal offense . . . .”
The trial court also modified Defendant’s original sentence to
90 days and activated that sentence, giving Defendant credit for
2 days served. On 12 June 2013, Defendant filed a handwritten
notice of appeal without the assistance of counsel.
Discussion
As a preliminary matter, we note that Defendant’s pro se
notice of appeal violates Rule 4 of the North Carolina Rules of
Appellate Procedure. In pertinent part, Rule 4 provides that any
party entitled to appeal must do so by either (1) “giving oral
notice of appeal at trial” or (2) “filing notice of appeal with
the clerk of superior court and serving copies thereof upon all
adverse parties within fourteen days after entry of the judgment
. . . .” N.C.R. App. P. 4(a). In addition, Rule 4 requires that
a party designate “the court to which appeal is taken” in its
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notice of appeal. N.C.R. App. P. 4(b). Defendant’s notice of
appeal indicates that it was timely filed on 12 June 2013, but
there is no evidence such notice was served on the State. In
addition, Defendant’s notice of appeal fails to designate the
court to which appeal is taken.
Nonetheless, this Court has held that a party’s failure to
include evidence of service with a notice of appeal is waived
when the opposing party participates without objection, as the
State has done here. State v. Ragland, __ N.C. App. __, __, 739
S.E.2d 616, 620, disc. review denied, __ N.C. __, 747 S.E.2d 548
(2013). Furthermore, “an appellant’s failure to designate this
Court in its notice of appeal is not fatal to the appeal where
the appellant’s intent to appeal can be fairly inferred and the
appellee[ is] not [misled] by the appellant’s mistake.” Id.
(citation, internal quotation marks, and certain brackets
omitted). Plaintiff’s statement in the handwritten notice that
she “would like to appeal [her] sentence of 90 days” is
sufficient to fairly infer her intent to appeal, and the State’s
participation indicates that it was not misled. Accordingly,
“[D]efendant’s failure to serve the notice of appeal and [her]
mistake in failing to name this Court in [her] notice of appeal
do not warrant dismissal.” See id.
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On appeal, counsel appointed to represent Defendant has
been unable to identify any issue with sufficient merit to
support a meaningful argument for relief and asks this Court to
conduct its own review of the record for possible prejudicial
error. Counsel has shown to the satisfaction of this Court that
she has complied with the requirements of Anders v. California,
386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314
N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of her
right to file written arguments with this Court and providing
her with the documents necessary for her to do so.
Defendant has not filed any written arguments on her own
behalf and a reasonable time within which she could have done so
has passed. In accordance with Anders, we have fully examined
the record to determine whether any issues of arguable merit
appear to exist. We have been unable to find any possible
prejudicial error and, therefore, conclude that this appeal is
wholly frivolous.
NO ERROR.
Judges HUNTER, ROBERT C., and ERVIN concur.
Report per Rule 30(e).