IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-414-2
Filed: 6 December 2016
Rowan County, No. 13 CRS 50063
STATE OF NORTH CAROLINA
v.
DONNA HELMS LEDBETTER
Appeal by defendant from judgment entered 27 October 2014 by Judge Jeffrey
P. Hunt in Rowan County Superior Court. Originally heard in the Court of Appeals
8 October 2015, with opinion issued 3 November 2015. The defendant’s petition for
discretionary review pursuant to N.C. Gen. Stat. § 7A-31 was allowed by the Supreme
Court of North Carolina on 22 September 2016, for the limited purpose of remanding
to this Court for reconsideration.
Attorney General Roy Cooper, by Assistant Attorney Generals Christopher W.
Brooks and Ashleigh P. Dunston, for the State.
Meghan A. Jones, for defendant-appellant.
PER CURIAM.
This case is before the Court on remand by Order of the North Carolina
Supreme Court dated 22 September 2016, to be reconsidered in light of that Court’s
recent decisions in State v. Thomsen, __ N.C. __, 789 S.E.2d 639 (2016) and State v.
Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2016).
STATE V. LEDBETTER
Opinion of the Court
I. Procedural Background
The facts underlying this case are set forth in detail in our previous opinion,
State v. Ledbetter, __ N.C. App. __, 779 S.E.2d 164 (2015), and are briefly presented
here. Donna Helms Ledbetter (“Defendant”) was charged with driving while
impaired. Defendant filed a motion to dismiss the charges on 23 December 2013, and
argued the State had violated N.C. Gen. Stat. § 20-38.4 (setting forth procedures for
magistrates to follow when the arrestee appears to be impaired during the initial
appearance) and State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988) (holding a DWI
charge is subject to dismissal for magistrate’s failure to “inform [the accused] of the
charges against him, of his right to communicate with counsel and friends, and of the
general circumstances under which he may secure his release.”)
Following the court’s denial of her motion, Defendant entered a plea of guilty.
The plea arrangement stated “[Defendant] expressly retains the right to appeal the
Court’s denial of her motion to dismiss/suppress her Driving while Impaired charge
in this case and her plea of guilty is conditioned based on her right to appeal that
decision[.]” Defendant purportedly appealed to this Court from the judgment entered
upon her guilty plea, and argued the trial court erred by denying her “motion to
dismiss.” The State moved to dismiss Defendant’s appeal, and to deny her petition
for writ of certiorari.
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STATE V. LEDBETTER
Opinion of the Court
This Court held Defendant did not have a statutory right to appeal the motion
to dismiss under either §§ 15A-1444(a)-(d) or 15A-979(b). Ledbetter, __ N.C. App. at
__, 779 S.E.2d at 170-71. Defendant had petitioned this Court to issue a writ of
certiorari to review the denial of her motion to dismiss. This Court held Rules 1 and
21 of the North Carolina Rules of Appellate Procedure governs our appellate
procedures and do not set forth the grounds Defendant asserted to issue the requested
writ. In the exercise of our discretion, we further declined to invoke Rule 2 to suspend
the Rules of Appellate Procedure to exercise our admitted jurisdiction to issue the
writ under N.C. Gen. Stat. § 1444(e). We dismissed Defendant’s purported appeal.
Id.
II. Thomsen and Stubbs
After our initial opinion was issued in this case, the Supreme Court issued its
opinion in Thomsen. In that case, the defendant pled guilty to rape of a child and
sexual offense with a child, both felonies which carry mandatory minimum sentences
of 300 months. Thomsen, __ N.C. at __, 789 S.E.2d at 641. After it consolidated the
convictions and sentenced the defendant to a prison term of 300 to 420 months, the
trial court immediately sua sponte granted its own motion for appropriate relief
(“MAR”) and vacated the judgment and sentence. The trial court determined the
mandatory sentence violated the Eighth Amendment, and imposed a lower sentence
pursuant to the Structured Sentencing Act. Id.
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STATE V. LEDBETTER
Opinion of the Court
The State petitioned this Court to issue the writ of certiorari to review the trial
court’s order granting its own MAR. This Court allowed the State’s petition,
addressed the State’s argument and held, over a dissent, the mandatory minimum
sentence did not violate the Eighth Amendment, and remanded the case for
resentencing. Id. The Supreme Court addressed the issue raised by the dissenting
opinion, whether this Court had subject matter jurisdiction to review, by certiorari,
the trial court’s grant of its own MAR. Id.
In Thomsen, the Supreme Court relied upon its decision in State v. Stubbs, 368
N.C. 40, 770 S.E.2d 74 (2016). Stubbs was decided and issued while Ledbetter was
initially pending before our Court, and is addressed and cited within our previous
opinion. See Ledbetter, __ N.C. App. at __, 779 S.E.2d at 168.
In Stubbs, the Court considered whether the Courts in the appellate division
have jurisdiction to review, by certiorari, the trial court’s grant of a MAR in favor of
the defendant. The trial court’s ruling on a MAR is statutorily subject to review by
certiorari. N.C. Gen. Stat. § 15A-1422(c) (2015). The Court noted the statute “does
not distinguish between an MAR when the State prevails below and an MAR under
which the defendant prevails.” Stubbs, 368 N.C. at 43, 770 S.E.2d at 76. The Court
stated:
Accordingly, given that our state constitution authorizes
the General Assembly to define the jurisdiction of the
Court of Appeals, and given that the General Assembly has
given that court broad powers “to supervise and control the
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STATE V. LEDBETTER
Opinion of the Court
proceedings of any of the trial courts of the General Court
of Justice,” id. § 7A-32(c), and given that the General
Assembly has placed no limiting language in subsection
15A-1422(c) regarding which party may appeal a ruling on
an MAR, we hold that the Court of Appeals has jurisdiction
to hear an appeal by the State of an MAR when the
defendant has won relief from the trial court.
Id. at 43, 770 S.E.2d at 76 (emphasis supplied).
The Court noted the Rules of Appellate Procedure are pertinent to its analysis.
Id. At that time, the language of Rule 21 only permitted appellate review of the
issuance of the writ of certiorari to review an “‘order of the trial court denying a
motion for appropriate relief.’” Id. (quoting N.C. R. App. P. 21(a)(1)) (emphasis
supplied). The defendant in Stubbs argued that under the language of the Rule, the
State may not seek review by certiorari of an order of a trial court granting a motion
for appropriate relief. Id.
The Supreme Court disagreed, and held:
As stated plainly in Rule 1 of the Rules of Appellate
Procedure, “[t]hese rules shall not be construed to extend
or limit the jurisdiction of the courts of the appellate
division as that is established by law.” [N.C. R. App. P. 1]
Therefore, while Rule 21 might appear at first glance to
limit the jurisdiction of the Court of Appeals, the Rules
cannot take away jurisdiction given to that court by the
General Assembly in accordance with the North Carolina
Constitution.
Id. at 43-44, 770 S.E.2d at 76.
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STATE V. LEDBETTER
Opinion of the Court
Where § 15A-1422(c) contains “no limiting language . . . regarding which party
may appeal a ruling on an MAR,” the Court held this Court has jurisdiction to hear
an appeal by the State of an MAR when defendant has won relief from the trial court.
Id. at 43, 770 S.E.2d at 76. On the same day the Stubbs opinion was filed, and prior
to the issuance of its mandate, the Supreme Court specifically amended Rule 21 to
set forth a procedure under the appellate rules to permit review of all rulings on
motions for appropriate relief in accordance with the language of N.C. Gen. Stat. §
15A-1422(c)(3). N.C. R. App. P. 21(a) (2016).
As in Stubbs, the Court in Thomsen noted “[t]he General Assembly has
exercised [its] constitutional authority in N.C.G.S. § 7A-32(c) by giving the Court of
Appeals ‘jurisdiction . . . to issue the prerogative writs, including . . . certiorari, . . . to
supervise and control the proceedings of any of the trial courts of the General Court
of Justice.’” Thomsen, __ N.C. at __, 789 S.E.2d at 641 (quoting N.C. Gen. Stat. § 7A-
32(c) (2015)). The Court explained N.C. Gen. Stat. § 7A-32(c) “empowers the Court
of Appeals to review trial court rulings on motions for appropriate relief by writ of
certiorari unless some other statute restricts the jurisdiction,” and “only the General
Assembly can take away the jurisdiction that it has conferred.” Id. at __, 789 S.E.2d
at 641-42.
“Subsection 7A-32(c) thus creates a default rule that the Court of Appeals has
jurisdiction to review a lower court judgment by writ of certiorari. The default rule
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STATE V. LEDBETTER
Opinion of the Court
will control unless a more specific statute restricts jurisdiction in the particular class
of cases at issue.” Id. at __, 789 S.E.2d at 642 (emphasis supplied).
III. Authority Under the Rules of Appellate Procedure
Both Thomsen and Stubbs address the appellate courts’ jurisdiction to issue
the writ of certiorari upon the State’s petition, where statutorily authorized, after the
trial court granted both defendants’ MAR. N.C. Gen. Stat. § 15A-1444(e) provides
that a criminal defendant who pleads guilty to a criminal offense “may petition the
appellate division for review by writ of certiorari.” N.C. Gen. Stat. § 15A-1444(e)
(2015). Our initial opinion in this case neither denies, nor purports to limit, this
Court’s jurisdiction to issue the writ under N.C. Gen. Stat. § 15A-1444(e), or any other
statute.
The issue in the present case does not pertain to the existence of appellate
jurisdiction under the statutes. Rather, the issue pertains to the “govern[ing]
procedure” and processes available to properly exercise our jurisdiction and guide our
discretion of whether to issue a writ of certiorari, following a defendant’s guilty plea.
N.C. Rule App. P. Rule 1(b) (2016). Defendant’s petition, purportedly under N.C.
Gen. Stat. § 15A-1444(e), does not invoke any of the three grounds set forth in
Appellate Rule 21 to guide this Court’s discretion to issue the writ under this Rule to
review her guilty plea.
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STATE V. LEDBETTER
Opinion of the Court
We are without a procedural basis to do so, without invoking Rule 2 to suspend
the Rules. See Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300
(1999) (Appellate Rule 2 “relates to the residual power of our appellate courts to
consider, in exceptional circumstances, significant issues of importance in the public
interest, or to prevent injustice which appears manifest to the Court and only in such
instances.”).
Appellate Rule 1 states the Rules of Appellate Procedure “govern procedure in
all appeals from the courts of the trial division to the courts of the appellate division
. . . and in applications to the courts of the appellate division for writs and other relief
which the courts or judges thereof are empowered to give.” N.C. R. App. P. 1(b)
(emphasis supplied). Appellate Rules 1, 2 and 21 provide this Court with a procedure
and mechanism to guide our discretion to grant or deny a petition to issue the writ of
certiorari under the jurisdiction the appellate courts are “empowered” to exercise
under our Constitution and statutes. N.C. R. App. P. 1(b), Stubbs, __ N.C. __, 789
S.E.2d at 641-42.
Under the current language of Appellate Rule 21, no procedural mechanism
exists under that Rule to issue the discretionary writ of certiorari to review the trial
court’s judgment entered upon Defendant’s guilty plea under N.C. Gen. Stat. § 15A-
1444(e), without further exercising our discretion to invoke Rule 2 to suspend the
Rules. See State v. Biddix, __ N.C. App. __, 780 S.E.2d 863 (2015) (declining to
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STATE V. LEDBETTER
Opinion of the Court
exercise Rule 2 to suspend the appellate rules, denying petition for writ of certiorari,
and dismissing defendant’s purported appeal from guilty plea where the issue is not
listed for review to issue a writ of certiorari pursuant to Appellate Rule 21); In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of
Appeals has decided the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent, unless it has been overturned by a higher
court.”).
This Court’s jurisdiction to hear and consider issues raised by a party is often
broader, but not necessarily synonymous, with the procedural framework under our
appellate rules. The appellate rules are replete with circumstances in which this
Court possesses jurisdiction, but the rules procedurally do not allow appellate review
without invoking Rule 2. For example, although this Court maintains jurisdiction
over an appeal, this Court is also bound by Rules 10 and 28 of the Rules of Appellate
Procedure, which generally limits review to a only those issues properly preserved
and briefed. N.C. R. App. P. 10(a)(1) (2016); N.C. R. App. P. 28(b) (2016).
IV. Conclusion
After further consideration and review of both Thomsen and Stubbs, and under
the jurisdictional authority provided by N.C. Gen. Stat. § 15A-1444(e), Defendant’s
petition for writ of certiorari to review her motion to dismiss, prior to entry of her
guilty plea, does not assert any of the procedural grounds set forth in Rule 21 to issue
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STATE V. LEDBETTER
Opinion of the Court
the writ. Although the statute provides jurisdiction, this Court is without a
procedural process under either Rule 1 or 21 to issue the discretionary writ under
these facts, other than by invoking Rule 2.
In the further exercise of our discretion under the facts before us, we decline
to invoke Rule 2 to suspend the requirements of the appellate rules to issue the writ
of certiorari. Appellate Rule 2 sets forth the discretionary basis and restates “the
residual power of our appellate courts to consider, in exceptional circumstances,
significant issues of importance in the public interest, or to prevent injustice which
appears manifest to the Court and only in such instances.” Steingress, 350 N.C. at 66,
511 S.E.2d at 299-300. Defendant’s petition before us does not meet that threshold.
Upon remand and after reconsideration and further discretionary review,
Defendant’s petition is denied, and her appeal is dismissed. The prior mandate issued
by this court remains undisturbed. It is so ordered.
PETITION DENIED AND APPEAL DISMISSED.
Panel Consisting of: McCullough, Dietz, Tyson, JJ.
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