IN THE SUPREME COURT OF NORTH CAROLINA
No. 199PA15
Filed 18 March 2016
STATE OF NORTH CAROLINA
v.
BRENT TYLER MILLER
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 773 S.E.2d 574
(2015), dismissing the State’s appeal from an oral order entered on 2 June 2014 by
Judge Linwood O. Foust in Superior Court, Mecklenburg County. Heard in the
Supreme Court on 15 February 2016.
Roy Cooper, Attorney General, by Derrick C. Mertz, Special Deputy Attorney
General, for the State-appellant.
Tin Fulton Walker & Owen, PLLC, by Noell P. Tin and Aisha J. Dennis, for
defendant-appellee.
ERVIN, Justice.
This case requires us to determine whether the Court of Appeals properly
dismissed the State’s appeal from a determination made by the trial court that the
decision of the district court to allow defendant’s pretrial suppression motion, which
was predicated on the theory that a law enforcement officer had stopped defendant’s
vehicle in the absence of the required reasonable articulable suspicion, and to dismiss
a driving while impaired charge and driving after consuming alcohol while less than
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Opinion of the Court
twenty-one years of age charge on the grounds that the order from which the State
purported to appeal had not been properly entered. For the reasons set forth below,
we conclude that the trial court did, in fact, properly enter an order affirming the
district court’s decision.
At approximately 1:40 a.m. on 26 October 2012, Officer J.F. Jackson of the
Charlotte-Mecklenburg Police Department stopped the vehicle that defendant was
driving because defendant had taken evasive action while approaching a driving
while impaired checkpoint and cited defendant for driving while impaired and driving
after consuming alcohol while less than twenty-one years of age. On 3 June 2013,
defendant made an oral motion to suppress evidence obtained as a result of the stop
and to dismiss the charges that had been lodged against him on the grounds that the
stop of defendant’s vehicle was not supported by the required reasonable articulable
suspicion. After orally indicating that the motion would be allowed on 7 June 2013,
Judge Kimberly Best-Staton filed written findings and conclusions in support of a
preliminary indication that defendant’s motions should be allowed on 12 July 2013.
On 18 July 2013, the State filed a written notice of appeal from Judge Best-
Staton’s preliminary indication to the Superior Court, Mecklenburg County, that
included a request for a de novo hearing pursuant to N.C.G.S. § 20-38.7. On 25
October 2013, defendant filed a motion seeking the dismissal of the State’s appeal on
the grounds that the State had only “made a generalized objection” to Judge Best-
Staton’s findings of fact; that the State’s notice of appeal constituted “a blanket ‘catch
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Opinion of the Court
all’ exception” that was “not made in good faith”; that “there [was] no way the State
. . . [could] have an objection [to] every [f]inding[ ] of [f]act made by the District Court”;
and that “the State’s primary purpose” for noting an appeal was to argue that “ ‘the
District Court’s decision to grant . . . [d]efendant’s [m]otion to [s]uppress was contrary
to law.’ ”
The trial court heard defendant’s dismissal motion at the 12 November 2013
session of the Superior Court, Mecklenburg County. On 15 November 2013, the trial
court entered an order denying the State’s request for a de novo hearing because “the
State could not articulate in the written [n]otice of [a]ppeal [the] specific” findings of
fact or conclusions of law to which the State was objecting; determining that Judge
Best-Staton’s preliminary indication “was not [an] abuse of discretion” and that her
findings and conclusions “require[d] that [the superior court] affirm the decision of
the District Court”; and “affirm[ing] the suppression of both [criminal] charges” and
remanding this case “for entry of a suppression order by the District Court.”
On 16 January 2014, Judge Best-Staton entered a “final order” allowing
defendant’s “pre-trial motion to suppress for lack of reasonable suspicion” and
dismissing the charges that had been lodged against defendant. On the same date,
the State noted an appeal from Judge Best-Staton’s order to the Superior Court,
Mecklenburg County, pursuant to N.C.G.S. § 20-38.7 and N.C.G.S. § 15A-1432, in
which the State contended that Judge Best-Staton’s final order “was contrary to the
law” and that the State was “appeal[ing] the final ruling to Superior Court.” The
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Opinion of the Court
State’s appeal from Judge Best-Staton’s final order came on for hearing before the
court at the 2 June 2014 criminal session of the Superior Court, Mecklenburg County.
At that time, the State informed the court that, while the State was expecting that
the court would uphold Judge Best-Staton’s order, it had noted an appeal from that
order on the grounds that, in accordance with N.C.G.S. § 15A-1432(e), the State could
not seek review by the Court of Appeals unless the superior court affirmed Judge
Best-Staton’s final order. At the conclusion of the hearing, the court orally affirmed
Judge Best-Staton’s order, at which point the State orally noted an appeal to the
Court of Appeals from the superior court’s order upon making the required assertion
that the appeal was not being taken for the purpose of delay and filed a written notice
of appeal and certification, “in accord with the provisions of N.C.[G.S.] § 15A-1432(e),
that the instant appeal [was] not [being] taken for the purpose of delay.”
In challenging the superior court’s order before the Court of Appeals, the State
argued that the superior court had erred by denying the State’s request for a de novo
hearing as requested in its notice of appeal from Judge Best-Staton’s preliminary
indication. In response, defendant argued that the State was not entitled to de novo
review of Judge Best-Staton’s preliminary indication given its failure to comply with
the requirements of N.C.G.S. § 15A-1432(b) as construed in State v. Palmer, 197 N.C.
App. 201, 676 S.E.2d 559 (2009), disc. rev. denied, 363 N.C. 810, 692 S.E.2d 394
(2010), and that the State had waived its right to appellate review by requesting the
trial court to affirm Judge Best-Staton’s final order, assertions with which the State
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disagreed in its reply brief. In addition, defendant filed a motion seeking the
dismissal of the State’s appeal on the grounds that the State’s written notice of appeal
(1) failed to designate the trial court’s order upholding Judge Best-Staton’s
preliminary indication as an order which the State sought to challenge on appeal, and
(2) cited an incorrect statute as support for the contention that the State had a right
to seek appellate review of the challenged decisions. In response, the State noted
that the sufficiency of the State’s notice is governed by Rule 4 of the North Carolina
Rules of Appellate Procedure; that any error in the statutory reference contained in
the State’s written notice of appeal did not matter given the absence of any
specification requirement in the rule provisions governing oral notices of appeal and
given that the discussion on the record before the trial court made the identity of the
orders that the State sought to challenge on appeal clear; that nothing in Rule 4(b)
requires the State to correctly recite the statute which authorizes the State’s appeal;
and that defendant could not reasonably claim that he was confused or prejudiced by
the State’s written notice of appeal given that the State had clearly indicated the
identity of the orders that it sought to challenge on appeal during the hearing held
before the trial court immediately prior to the noting of its appeal. In addition, the
State argued that its oral notice of appeal sufficed to support a challenge to the trial
court’s decision to refuse to review the State’s appeal from Judge Best-Staton’s
preliminary indication on a de novo basis; that the State had “repeatedly” stated its
intention to challenge the trial court’s refusal to conduct a de novo review of its
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challenge to Judge Best-Staton’s preliminary indication pursuant to the only
available statutory provision, which required the State to wait and appeal from the
trial court’s 2 June 2014 “final order alone”; that the State’s notice of appeal should
be construed as a request for review of each of the orders that had been entered in
this case given that the State had repeatedly objected to the denial of its request for
de novo review of Judge Best-Staton’s preliminary indication; and that, even if the
State was required to make a reference to the order refusing to review the State’s
challenge to Judge Best-Staton’s preliminary indication on a de novo basis in its
written notice of appeal, the State had made its intention to challenge that decision
on appeal clear to the trial court and to defendant. Finally, in the event that the
Court of Appeals deemed the State’s notices of appeal to be insufficient to support
review of the trial court’s refusal to review Judge Best-Staton’s preliminary
indication on a de novo basis, the State requested the Court of Appeals to issue a writ
of certiorari authorizing review of that decision on the grounds that any deficiencies
in the notices of appeal “were inadvertent”; that defendant had always fully
understood the nature of the issues that the State sought to present for the Court of
Appeals’ consideration; and that the State’s legal arguments had substantive merit
and were ripe for appellate review.
On 19 May 2015, the Court of Appeals filed a unanimous, unpublished opinion
dismissing the State’s appeal and determining that it would “not [be] appropriate” for
the court “to treat the State’s purported notice of appeal as a petition to issue the writ
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of certiorari.” State v. Miller, No. COA14-1310, slip op. at 7 (N.C. App. May 19, 2015)
(unpublished) [Miller I]. The Court of Appeals did not base this decision on any
arguments advanced in defendant’s dismissal motion. Instead, the Court of Appeals
noted that the record on appeal did not “include a written copy of the [2 June 2014]
order appealed from” and held that, “[i]n the absence of a written order,” the court
lacked “jurisdiction to hear the State’s appeal,” Miller I, slip op. at 6-7, given that
“ ‘[e]ntry’ of an order occurs when it is reduced to writing, signed by the trial court,
and filed with the clerk of court,” id. at 6-7 (quoting State v. Gary, 132 N.C. App. 40,
42, 510 S.E.2d 387, 388 (citations omitted), cert. denied, 350 N.C. 312, 535 S.E.2d 35
(1999), and citing S. Furn. Hdwe., Inc. v. Branch Banking & Tr. Co., 136 N.C. App.
695, 702, 526 S.E.2d 197, 201 (2000) (stating that, “[w]hen an oral order is not reduced
to writing, it is non-existent” (citing Gary, 132 N.C. App. at 42, 510 S.E.2d at 388))).
On 21 May 2015, the State filed a motion requesting the Court of Appeals to
“withdraw and amend [its] opinion.” In support of this request, the State asserted
that “defendant neither raised nor argued th[e] basis for dismissal” adopted by the
Court of Appeals, so that the State had been deprived of the “opportunity to defend
against” that argument, and that the logic underlying the Court of Appeals’ decision
was inconsistent with numerous decisions from this Court, including State v. Oates,
366 N.C. 264, 732 S.E.2d 571 (2012), State v. Trent, 359 N.C. 583, 614 S.E.2d 498
(2005), and State v. Boone, 310 N.C. 284, 311 S.E.2d 552 (1984), abrogated by Oates,
366 N.C. at 267, 732 S.E.2d at 573-74. In response, defendant asserted that the Court
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of Appeals had made a correct decision in that the “plain language” of N.C.G.S. § 15A-
1432(e) allows the State to seek appellate review only after an order “has been
entered by the superior court”; that the Court of Appeals had repeatedly stated that
an order had not been entered until it had been reduced to writing, signed by the trial
court, and filed with the Clerk of Superior Court; that the opinion in Oates “confirmed,
rather than undermined,” the existence of this requirement; and that the Court of
Appeals’ decision does not conflict with Oates or any other decision of this Court. On
8 June 2015, the Court of Appeals entered an order denying the State’s motion.
On 24 September 2015, this Court allowed the State’s petition for discretionary
review. In their new briefs before this Court, the parties debate the issue of whether
the Court of Appeals had erred by dismissing the State’s appeal on the grounds that
the order from which the State had noted its appeal had not been entered by virtue
of the fact that it had not been reduced to writing and filed with the Clerk.
Approximately two weeks before the date upon which oral argument was scheduled
to be held in this case, the Court learned that the version of the Court of Appeals’
opinion on the basis of which the State had sought discretionary review, which was
identical to the version contained in the LexisNexis and Westlaw on-line reporting
services, differed from the version of the Court of Appeals’ decision contained in the
North Carolina appellate courts on-line database. On 4 February 2016, a
representative of the authoring judge sent an e-mail to the attorneys for the parties,
representatives from LexisNexis and Westlaw, and representatives of the offices of
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the Clerk of the Court of Appeals and this Court noting the fact that differing versions
of the Court of Appeals’ opinion in this case had been disseminated and stating that:
After this Court’s opinion was filed on 19 May 2015, the
State filed a Motion to Withdraw and Amend the Opinion
prior to the Issuance of the Mandate. This Court denied
the Motion to Withdraw the Opinion but corrected the
opinion to remove the references to State v. Gary and
Southern Furn. Hdwe, Inc. v. Branch Banking & Trust on
p.7. The correct opinion refers to State v. Oates and State
v. Hadden on p. 7. The corrected opinion . . . was uploaded
prior to the issuance of the mandate. At the time of the
correction, we were advised that re-uploading . . . would
[be] all we would need to do.
As we understand the record, neither party knew of the existence of the “corrected”
version of the Court of Appeals’ decision prior to receiving this communication. On
the same date, defendant filed a motion seeking to have the record on appeal
supplemented with a correct copy of the Court of Appeals’ decision and suggesting
that discretionary review had been improvidently allowed on the theory that the
State’s central argument had been that the Court of Appeals had erred by relying on
Gary and Southern Furniture and that the references to these two decisions had been
removed from the Court of Appeals’ opinion. In response, the State argued that “[t]he
opinion’s substance ― its holding and result ― is the exact same” and “remains
erroneous for the very same reasons”; that the corrected opinion conflicts with
numerous decisions of this Court, including Oates, and involves significant legal
principles; and that any reliance upon State v. Hadden would be misplaced because
Hadden was, in reality, a civil rather than a criminal case and because Hadden relied
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on Gary, 132 N.C. App. at 42, 510 S.E.2d at 388 for the premise that an order not
reduced to writing “is a nullity,” Hadden, 226 N.C. App. 330, 332-33, 741 S.E.2d 466,
468 (2013). In addition, the State pointed out that the Court had the correct version
of the Court of Appeals’ opinion at the time that it granted discretionary review in
this case. On 5 February 2016, this Court entered an order dismissing defendant’s
motion to supplement the record as moot and taking no action on defendant’s request
that this Court dismiss the State’s discretionary review petition as improvidently
allowed.
The differences between the two opinions that the Court of Appeals filed in this
case go beyond changes in the identity of the cases upon which the Court of Appeals
relied in determining that the State’s appeal should be dismissed. Instead, the
corrected opinion significantly changes the basis for the Court of Appeals’ decision to
dismiss the State’s appeal. Compare Miller I, slip op. at 6-7, with State v. Miller, No.
COA14-1310, slip op. at 7-8 (N.C. App. May 19, 2015, mandate issued June 8, 2015)
(unpublished) [Miller II]. Instead of noting that the record on appeal “[did] not
include a written copy of the order appealed from” and holding that “the absence of a
written order” necessitates a conclusion that the State’s appeal should be dismissed
on the theory that “ ‘[e]ntry’ of an order occurs when it is reduced to writing, signed
by the trial court, and filed with the clerk of court,” Miller I, slip op. at 6-7 (quoting
Gary, 132 N.C. App. at 42, 510 S.E.2d at 388), and citing S. Furn. Hdwe., 136 N.C.
App. at 702, 526 S.E.2d at 201), the corrected opinion states that, because “the record
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on appeal . . . does not indicate the superior court’s 2 June 2014 was entered,” the
State’s appeal should be dismissed for lack of an “entered” order given this Court’s
statement in Oates that, “[f]or the purposes of entering notice of appeal in a criminal
case under [Appellate] Rule 4(a)”:
[A] judgment or an order is rendered when the judge
decides the issue before him or her and advises the
necessary individuals of the decision; a judgment or an
order is entered under [Rule 4(a)] when the clerk of court
records or files the judge’s decision regarding the judgment
or order.
Oates, 366 N.C. at 266, 732 S.E.2d at 573 (quoted in Miller II, slip op. at 7 (underlining
added by Court of Appeals)). In addition, after citing Hadden, the corrected opinion
states:
N.C.[G.S.] § 15A-1432, the statute that provides the
State with a right to appeal from the superior court’s order
affirming the district court’s final order, specifically
requires the superior court to “enter an order affirming the
judgment of the district court” if the superior court
determines the order of the district court was correct.
Miller II, slip op. at 7 (quoting N.C.G.S. § 15A-1432(e) (2013)). As a result, rather
than relying on the absence of a written order, the Court of Appeals held in Miller II
that it lacked the authority to consider the State’s appeal given the absence of any
indication that the order from which the State sought to appeal had been entered in
accordance with the process spelled out in Oates.
Although Rule 16 of the North Carolina Rules of Appellate Procedure limits
discretionary review by this Court to the “issues stated in . . . the petition for
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discretionary review and the response thereto,” N.C. R. App. P. 16(a), and although
the exact issue specified in the State’s discretionary review petition was whether the
Court of Appeals had “err[ed] in determining that no order was entered because it
was not reduced to writing,” we do not believe that the fact that, unbeknownst to the
State, the Court of Appeals changed the basis upon which it decided to dismiss the
State’s appeal necessitates dismissal of the State’s petition as improvidently allowed.
When read more broadly, the issue posed in the State’s petition asked us to determine
whether the Court of Appeals had erred by concluding that no order from which an
appeal could properly be taken had ever been entered. As a result, we conclude that
we have the authority under Rule 16 to consider the issue raised by the corrected
Court of Appeals’ decision and will proceed to do so.
Our decision in Oates addressed the issue of whether the State had noted an
appeal from a trial court order in a timely manner as required by Rule 4(a). As we
stated in Oates,
Rule 4 authorizes two modes of appeal for criminal cases.
The Rule permits oral notice of appeal, but only if given at
the time of trial or . . . the pretrial hearing. Otherwise,
notice of appeal must be in writing and filed with the clerk
of court. Such written notice may be filed at any time
between the date of the rendition of the judgment or order
and the fourteenth day after entry of the judgment or
order.
366 N.C. at 268, 732 S.E.2d at 574 (citing N.C. R. App. P. 4(a)(1), (a)(2)). On the one
hand, “[r]endering a judgment or an order ‘means to “pronounce, state, declare, or
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announce” [the] judgment’ or order, and ‘is the judicial act of the court in pronouncing
the sentence of the law upon the facts in controversy.’ ” Id. at 266, 732 S.E.2d at 573
(second alteration in original) (citations omitted). “Entering a judgment or an order,”
on the other hand, “is ‘a ministerial act which consists in spreading it upon the
record.’ ” Id. at 266, 732 S.E.2d at 573 (citations omitted). “For the purposes of
entering notice of appeal in a criminal case under Rule 4(a), a judgment or an order
. . . is entered . . . when the clerk of court records or files the judge’s decision regarding
the judgment or order.” Id. at 266, 732 S.E.2d at 573. In reaching this conclusion,
this Court noted, among other things, that the Court of Appeals’ statement in Oates
predicated on Gary, 132 N.C. App. at 42, 510 S.E.2d at 388, that “ ‘[e]ntry of an order
[in the criminal context] occurs when it is reduced to writing’ is incorrect.” Oates, 366
N.C. at 267, 732 S.E.2d at 574 (alterations in original) (citation omitted). As a result,
the basis for the Court of Appeals’ initial decision in this case in Miller I, which was
that an order from which an appeal could be taken had not been entered unless it had
been reduced to writing and filed with the Clerk, rested upon a misapprehension of
the applicable law.
The Court of Appeals’ reliance upon Hadden for the proposition that “the
superior court’s order requiring [the] defendant to enroll in satellite-based monitoring
was never ‘entered’ and was a nullity where it bore no indication it was filed with the
clerk” as a basis for dismissing the State’s appeal in its corrected opinion, Miller II,
slip op. at 7 (citing Hadden, 226 N.C. App. at 332-33, 741 S.E.2d at 468), is misplaced
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as well. As an initial matter, it is well established that Hadden, which stemmed from
a satellite-based monitoring proceeding, involved the application of the rules
governing appeals in civil, rather than criminal, cases. See, e.g., State v. Clark, 211
N.C. App. 60, 70-71, 714 S.E.2d 754, 761-62 (2011), disc. rev. denied, ___ N.C. ___,
722 S.E.2d 595 (2012). Secondly, as the State noted in response to defendant’s motion
to supplement the record and dismiss the State’s petition as improvidently allowed,
Hadden cited to and relied upon Gary, which this Court rejected in Oates, for the
proposition that “ ‘[e]ntry’ of an order occurs when it is reduced to writing, signed by
the trial court, and filed with the clerk of court.’ ” Hadden, 226 N.C. App. at 332-33,
741 S.E.2d at 468. As a result, Hadden simply has no bearing on the proper
resolution of this case.
Here the parties agree that N.C.G.S. § 15A-1432(e) is the statutory provision
that authorizes the State’s appeal from the trial court’s 2 June 2014 order and that
this statute requires an order to be entered in order for the Court of Appeals to
acquire jurisdiction over the State’s appeal. N.C.G.S. § 15A-1432(e) (2015) (“If the
superior court finds that the order of the district court was correct, it must enter an
order affirming the judgment of the district court. The State may appeal the order of
the superior court to the appellate division upon certificate by the district attorney to
the judge who affirmed the judgment that the appeal is not taken for the purpose of
delay.”). The ultimate problem with the logic adopted by the Court of Appeals in
Miller II is that it conflicts with this Court’s statement in Oates that “a judgment or
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an order is entered under [Rule 4(a)] when the clerk of court records or files the
judge’s decision regarding the judgment or order.” 366 N.C. at 266, 732 S.E.2d at
573. As we have already noted, Oates held, among other things, that a trial court has
entered a judgment or order in a criminal case in the event that it announces its
ruling in open court and the courtroom clerk makes a notation of its ruling in the
minutes being kept for that session. The Court of Appeals appears to have simply
overlooked the possibility that the trial court’s 2 June 2014 order from which the
State noted its appeal in this case had been entered in this fashion, perhaps because
the record presented for its review did not reflect that such a procedure had been
followed in this case. However, this Court has determined, during its consideration
of this case, that, after the trial court announced its decision to affirm Judge Best-
Staton’s order, the courtroom clerk noted that “Court affirms appeal. State appeals
court ruling” in the minutes relating to the relevant session of the Superior Court,
Mecklenburg County.1 As a result, contrary to the result reached by the Court of
Appeals in Miller II, the order from which the State noted its appeal was, in fact,
entered in accordance with our decision in Oates. Thus, the Court of Appeals erred
by dismissing the State’s appeal from the trial court’s order on the theory that the
order in question had never been properly entered. As a result, the Court of Appeals’
1 As authorized by Rule 15(f)(1) of the North Carolina Rules of Appellate Procedure,
the Court has entered a separate order amending the record on appeal in this case to include
the relevant minutes entry.
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decision in Miller II is vacated and this case is remanded to the Court of Appeals for
consideration of the remaining issues in this case, including whether the State’s
appeal is subject to dismissal on any other basis not addressed in this opinion.
VACATED AND REMANDED.
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