IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-414-3
Filed: 21 August 2018
Rowan County, No. 13CRS50063
STATE OF NORTH CAROLINA
v.
DONNA HELMS LEDBETTER
Appeal by Donna Helms Ledbetter (“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, and reconsidered by opinion issued 6
December 2016. State v. Ledbetter, __ N.C. App. __, 794 S.E.2d 551 (2016). Upon
remand from the Supreme Court of North Carolina by opinion issued 8 June 2018.
State v. Ledbetter, __ N.C. __, 814 S.E.2d 39 (2018).
Attorney General Joshua H. Stein, by Assistant Attorneys General Christopher
W. Brooks and Ashleigh P. Dunston, for the State.
Meghan A. Jones for defendant-appellant.
TYSON, Judge.
I. Background
The facts underlying this case are set forth in our previous opinion, State v.
Ledbetter, 243 N.C. App. 746, 779 S.E.2d 164 (2015). The procedural history is
contained in State v. Ledbetter, __ N.C. __, 814 S.E.2d 39 (2018). Pursuant to the
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Opinion of the Court
Supreme Court’s instructions, we “exercise [our] discretion to determine whether [we]
should grant or deny [D]efendant’s petition for writ of certiorari.” Id. at __, 814 S.E.2d
at 43 (2018).
II. Writ of Certiorari
“A writ of certiorari is an extraordinary remedial writ[.]” State v. Roux, 263
N.C. 149, 153, 139 S.E.2d 189, 192 (1964) (citation omitted). “Certiorari is a
discretionary writ, to be issued only for good and sufficient cause shown.” State v.
Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation omitted), cert. denied,
362 U.S. 917, 4 L. Ed. 2d 738 (1960).
“The decision concerning whether to issue a writ of certiorari is discretionary,
and thus, the Court of Appeals may choose to grant such a writ to review . . . issues
that are meritorious but not [for issues] for which a defendant has failed to show good
or sufficient cause.” State v. Ross, 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016)
(emphasis supplied and citation omitted).
In deciding whether to grant Defendant’s petition, Defendant’s arguments
must demonstrate “good and sufficient cause” to support this Court’s exercise of its
discretion to grant her petition and issue the writ of certiorari. Id.
Defendant asserts the trial court prejudicially erred in denying her motion to
dismiss, because the State violated N.C. Gen. Stat. § 20-38.4, N.C. Gen. Stat. § 15A-
534, and State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988), when the magistrate:
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Opinion of the Court
(1) failed to provide Defendant a written copy of Form AOC-CR-271, advising of her
right to have witnesses observe her demeanor in jail; and, (2) failed to enter sufficient
findings of fact to show Defendant was a danger to herself and others to justify
imposing a secured bond pursuant to N.C. Gen. Stat. § 15A-534.
“Dismissal of charges for violations of statutory rights is a drastic remedy
which should be granted sparingly. Before a motion to dismiss should be granted [. .
.] it must appear that the statutory violation caused irreparable prejudice to the
preparation of defendant’s case.” State v. Labinski, 188 N.C. App. 120, 124, 654 S.E.2d
740, 742-43 (emphasis original) (citation and internal quotation marks omitted),
review denied, 362 N.C. 367, 661 S.E.2d 889 (2008).
With regard to Defendant’s first argument, the State concedes the magistrate
did not comply with N.C. Gen. Stat. § 20-38.4 to inform Defendant “in writing of the
established procedure to have others appear at the jail to observe [her] condition” and
failing to require her “to list all persons [she] wishes to contact and telephone
numbers on a form that sets forth the procedure for contacting the persons listed.”
N.C. Gen. Stat. § 20-38.4 (2017).
The State argues Defendant cannot demonstrate “irreparable prejudice to the
preparation of defendant’s case” because the magistrate orally informed Defendant
of her right to have witnesses present to observe her condition. Labinski, 188 N.C.
App. at 124, 654 S.E.2d at 742-43. In its order denying Defendant’s motion to dismiss,
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Opinion of the Court
the trial court found:
45. Magistrate Wyrick testified he did tell the defendant of
her right to have individuals come to the detention center
to observe her condition.
....
47. Once placed in the Rowan County Detention Center,
the defendant was allowed to make phone calls to her
mother (several calls), to her brother (1 call), to Kenneth
Paxton and a girlfriend Alisha.
These findings of fact are supported by competent evidence in the record
through the testimony of Magistrate Wyrick and Defendant’s own testimony that she
was able to, and did, in fact, make several phone calls from jail to friends and family.
Defendant cannot demonstrate the statutory violation caused her to suffer any
“irreparable prejudice to the preparation of defendant’s case.” Id.
With regard to Defendant’s second argument, she argues the magistrate
violated N.C. Gen. Stat. § 15A-534, which requires a magistrate to record, “in
writing,” findings for imposing a secured bond upon a defendant, and to consider the
factors listed under N.C. Gen. Stat. § 15A-534(c). N.C. Gen. Stat. 15A-534(a)-(c)
(2017). Defendant contends the magistrate’s failure to comply with these statutory
obligations led to a deprivation of her right to gather evidence and witnesses on her
behalf during a crucial time period following arrest.
Magistrate Wyrick testified he took into consideration Defendant’s condition
in deciding whether to impose a secured bond and he initially entered his reasons on
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Opinion of the Court
his computer for imposing a secured bond into the “FINDINGS” section of Form AOC-
CR-270. However, Magistrate Wyrick testified he accidently deleted his reasons
listed on Form AOC-CR-270 and they were replaced with the text and finding of
“BLOOD TEST.” Based upon the magistrate’s testimony, the trial court found:
38. Magistrate Wyrick noted by writing “Blood Test” on
[AOC-CR-270] that he found by clear[,] cogent[,] and
convincing evidence that the defendant’s physical or
mental faculties were impaired and that she was a danger
to herself, others or property if released.
39. Magistrate Wyrick ordered that the defendant be held
until her physical and mental faculties were no longer
impaired to the extent she presented a danger to herself,
others or property or released to a sober responsible adult.
(SE# 5) [Emphasis supplied]
40. Magistrate Wyrick on the charges of No Operator’s
License, Simple Possession of Schedule II Controlled
Substance and Simple Possession of Schedule IV
Controlled Substance set a $1,000 secured bond for the
defendant. (SE# 6)
41. Magistrate Wyrick testified that he considered the
factors set forth in 15A-534(c) in setting the defendant’s
bond, but he could not recall any specific facts upon which
he relied in setting the secured bond.
42. In addition, Magistrate Wyrick ordered the defendant
be held until 7 am on 01/02/13 unless released to a sober
adult. (SE# 6) [Emphasis supplied]
Based upon these findings of fact, which are supported by competent evidence,
Defendant has failed to show she was denied access to witnesses, her right to have
witnesses observe her condition, or her right to collect evidence. Defendant has not
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Opinion of the Court
demonstrated “irreparable prejudice to the preparation of [her] case” by the
magistrate’s statutory violations and failures to provide her with a copy of Form AOC-
CR-271 or to make additional factual findings to justify imposing a secured bond
under N.C. Gen. Stat. § 15A-534.
Defendant was informed of her right to have witnesses observe her, had the
means and was provided the opportunity to contact potential witnesses. Additionally,
the magistrate’s detention order required Defendant to remain in custody for a
twelve-hour period or until released into the custody of “a sober, responsible adult.”
Defendant was released into the custody of a sober acquaintance after spending only
two hours and fifty-three minutes in jail, from 9:31 p.m. 1 January 2013 until 12:24
a.m. 2 January 2013.
Defendant also argues she was per se prejudiced by the magistrate’s statutory
violations, pursuant to State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971). In Hill, the
defendant was involved in a motor vehicle accident. Id. at 549, 178 S.E.2d at 463.
After coming upon the scene of the accident, a police officer arrested the defendant
for drunken driving after observing factors tending to indicate the defendant was
appreciably impaired. Id. After his arrest, the defendant was taken to jail and
administered a breathalyzer test. Id., 178 S.E.2d at 464. Following the breathalyzer
test, the evidence tended to show:
(1) that defendant was not ‘permitted’ to telephone his
attorney until after the breathalyzer testing and
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Opinion of the Court
photographic procedures were completed and the warrant
was served; (2) that he called Mr. Graham, his attorney and
brother-in-law, who came to the jail; (3) that Mr. Graham's
request to see his client and relative was peremptorily and
categorically denied; and (4) that from the time defendant
was arrested about 11:00 p.m. until he was released about
7:00 a.m. the following morning only law enforcement
officers had seen or had access to him.
Id. at 553, 178 S.E.2d at 466. The evidence also tended to show the defendant was
only permitted one phone call. Id. at 550, 178 S.E.2d at 464. The Supreme Court of
North Carolina held the denial of the defendant’s statutory and constitutional right
of access to his counsel was per se prejudicial and stated:
Before we could say that defendant was not prejudiced by
the refusal of the jailer to permit his attorney to see him
we would have to assume both the infallibility and
credibility of the State’s witnesses as well as the certitude
of their tests. Even if the assumption be true in this case,
it will not always be so. However, the rule we now
formulate will be uniformly applicable hereafter. It may
well be that here ‘the criminal is to go free because the
constable blundered.’ Notwithstanding, when an officer’s
blunder deprives a defendant of his only opportunity to
obtain evidence which might prove his innocence, the State
will not be heard to say that such evidence did not exist.
Id. at 555, 178 S.E.2d at 467 (emphasis supplied).
In contrast to the facts in Hill, no evidence in the record suggests the State
took affirmative steps to deprive Defendant of any access to potential witnesses or an
attorney, such as by preventing them from talking to Defendant or entering the jail
to observe her. See id.
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Opinion of the Court
Unlike the defendant in Hill, Defendant was told of her right to have observers
present, was not limited to one phone call following her arrest, was allowed and did
make numerous calls to multiple individuals and was released to a sober adult within
less than three hours. Additionally, the Supreme Court later acknowledged in Knoll
that the per se prejudice rule stated in Hill is no longer applicable. Knoll, 322 N.C. at
545, 369 S.E.2d at 564 (“Because of the change in North Carolina’s driving while
intoxicated laws, denial of access is no longer inherently prejudicial to a defendant’s
ability to gather evidence in support of his innocence in every driving while impaired
case.” (citation omitted)).
Defendant’s arguments fail to demonstrate “irreparable prejudice to the
preparation of defendant’s case.” See Labinski, 188 N.C. App. at 124, 654 S.E.2d at
742-43. Defendant does not raise any “good and sufficient cause” to support this
Court’s exercise of our discretion to grant her petition and issue the extraordinary
writ of certiorari. See Grundler, 251 N.C. at 189, 111 S.E.2d at 9; Roux, 263 N.C. at
153, 139 S.E.2d at 192; Ross, 369 N.C. at 400, 794 S.E.2d at 293.
Defendant pled guilty to DWI in a plea bargain in exchange for the State’s
dismissal of two charges for possession of controlled substances for oxymorphone and
Xanax, found upon her without a prescription when she was arrested for DWI. A
defendant can plead guilty and reserve the right to challenge a motion to suppress
pursuant to N.C. Gen. Stat. §§ 15A-979(b) (2017) and 15A-1444(e) (2017). Here,
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Opinion of the Court
Defendant has never argued any evidence the State gathered in her case was
obtained in violation of her constitutional or statutory rights and should be
suppressed. Defendant attempts to appeal from an order denying her motion to
dismiss entered prior to her guilty plea. This issue is not listed as one of the grounds
for appeal of right set forth in N.C. Gen. Stat. § 15A-1444. Defendant has no statutory
right to plead guilty, while preserving a right to appeal the denial of her motion to
dismiss. See N.C. Gen. Stat. § 15A-1444.
As this Court has previously stated,
We are reluctant to issue a writ of certiorari permitting
direct review of issues that otherwise would not be
reviewable on direct appeal because of a guilty plea.
Permitting review by certiorari in these circumstances
‘could damage the integrity of the plea bargaining process’
by undermining the finality that the State secures when a
defendant pleads guilty.
State v. Benton, __ N.C. App. __, 801 S.E.2d 396 (2017). Allowing certiorari under
these facts could also jeopardize the adequate state procedure exemption to federal
post-conviction relief. See, e.g., Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003).
Defendant received the benefit of her plea bargain when the State agreed to
dismiss the two charges for possession of controlled substances. Defendant pled
guilty to DWI prior to the State Bureau of Investigation conducting a chemical
analysis of her properly taken blood sample. Defendant stipulated “there’s a factual
basis for purposes of the DWI charge[,]” pursuant to her guilty plea. Defendant has
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not demonstrated any “good and sufficient cause” to justify exercising our discretion
to grant her petition and issue a writ of certiorari to allow her to challenge purported
statutory violations surrounding a conviction to which she voluntarily pled guilty.
In addition to our analysis above, Defendant’s petition also fails to assert any
of the grounds for allowing her petition and issuing a writ of certiorari contained in
Appellate Rule 21 for us to exercise our discretion to grant Defendant’s petition under
that Rule. See Ledbetter, __ N.C. at __, 814 S.E.2d at 43; N.C. R. App. P. 21(a)(1).
Defendant failed to demonstrate any grounds for this Court to invoke Appellate Rule
2. See id; see also N.C. R. App. P. 2.
III. Conclusion
Defendant has failed to demonstrate any “irreparable prejudice to the
preparation of defendant’s case,” “good and sufficient cause” or any other grounds for
purported statutory violations to support granting her petition for a writ of certiorari
under the statute or our appellate rules. In the exercise of our discretion, Defendant’s
petition for writ of certiorari is denied. Defendant’s purported appeal is dismissed.
It is so ordered.
PETITION DENIED AND APPEAL DISMISSED.
Judge DIETZ concurs.
Judge ARROWOOD concurs in the result.
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