State v. Bailey

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-792

No. COA22-196

Filed 6 December 2022

Person County, No. 20 CRS 316

STATE OF NORTH CAROLINA

v.

KENNETH LEE BAILEY, Defendant.

Appeal by Defendant from order entered 27 September 2021 by Judge Cynthia

K. Sturges in Person County Superior Court. Heard in the Court of Appeals 6

September 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General Jessica
Helms, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Sterling
Rozear, for Defendant-Appellant.

DILLON, Judge.

¶1 Defendant Kenneth Lee Bailey appeals from the trial court’s post-conviction

order revoking his probation based on a new criminal offense and urges this Court to

conduct a review of the record similar to our review of criminal judgments pursuant

to Anders v. California, 386 U.S. 738, 744, 18 L.Ed.2d 493, 498 (1967).
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Opinion of the Court

¶2 We note that Defendant did not properly notice his appeal pursuant to Rule 4

of our Rules of Appellate Procedure. He has, however, petitioned our Court to issue

a writ of certiorari to aid in our jurisdiction.

¶3 We, hereby, grant Defendant’s petition for a writ of certiorari to give us

jurisdiction to review the order revoking Defendant’s probation.

¶4 Contemporaneously with the petition for writ of certiorari, Defendant’s counsel

filed a brief seeking Anders-type review because counsel had examined the record and

applicable law and was “unable to identify an issue with sufficient merit to support a

meaningful argument for relief on appeal.”1

¶5 Defendant does not have a constitutional right to counsel at a probation

revocation hearing. State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967)

(“We do not find in the United States Constitution or the North Carolina Constitution

any constitutional right to counsel for a defendant in a proceeding to revoke

probation.”) Though there may be a statutory right to counsel, Anders is not invoked.

See Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (“[W]e reject respondent’s

argument that the Anders procedures should be applied to a state-created right to

counsel[.]”)

1Though not to be construed to suggest that Defendant had an Anders-type right to
submit separate arguments for our consideration, we note that Defendant has not done so.
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Opinion of the Court

¶6 Accordingly, we can only consider arguments not raised by Defendant’s counsel

by invoking Rule 2 of our Rules of Appellate Procedure in the exercise of our

discretion, as any argument not advanced in an appellant’s brief is abandoned under

Rule 28. However, based on the reasoning of our Supreme Court’s opinion in State v.

Ricks, 378 N.C. 737, 862 S.E.2d 835 (2021), we must conclude that it would be an

abuse of our discretion to invoke Rule 2. Id. at 743, 862 S.E.2d at 840 (concluding

that “[b]y allowing defendant’s petition for writ of certiorari and invoking Rule 2 to

review defendant’s challenge to the [trial court’s] order, the Court of Appeals abused

its discretion”).2

¶7 We note that in Ricks, our Court had invoked Rule 2 to suspend Rule 10 to

consider an argument raised in the defendant’s brief, but which had not been

preserved during the trial court proceeding. Here, Defendant is essentially asking us

to suspend Rule 28 to consider arguments not raised in his brief which might have

otherwise been preserved in the trial court for our review. However, we do not see

any reason why our Supreme Court’s reasoning in Ricks would not apply to

2 Ricks does contain language which suggests that our Court lacks authority even to
issue the writ of certiorari “when the petition shows [no] merit.” 378 N.C. at 738, 862 S.E.2d
at 837. However, this statement by our Supreme Court is dicta, and we do not construe the
statement as limiting our jurisdiction to issue writs of certiorari. Rather, the holding in Ricks
limits our discretion to invoke Rule 2 where we have obtained jurisdiction by issue a writ of
certiorari. See State v. Ore, 2022-NCCOA-380, §§ 48-51 (J. Dillon concurring).
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Opinion of the Court

Defendant’s appeal, where Defendant has otherwise “failed to show that a refusal to

invoke Rule 2 would result in manifest injustice.” Id. at 742, 862 S.E.2d at 839.3

¶8 Notwithstanding, we have reviewed the indictments to ensure that the trial

court had jurisdiction to try Defendant in the first instance and are satisfied the

indictments were sufficient. See State v. Rankin, 371 N.C. 885, 821 S.E.2d 787 (2018).

Otherwise, since Defendant has made no argument in his brief for our Court to

consider, we do not consider any other argument and affirm the order of the trial

court revoking Defendant’s probation.

AFFIRMED.

Judge MURPHY concurs.

Judge INMAN concurs in result only by separate opinion.

3 We note that prior to our Supreme Court’s decision in Ricks, our Court on occasion
did invoke Rule 2 to suspend Rule 28 and Rule 10 to consider a criminal appeal before us on
certiorari. See, e.g., State v. McGinnis, 2002 N.C. App. LEXIS 2325 (2002) (unpublished)
(suspending Rule 28); State v. Essary, 274 N.C. App. 510, 850 S.E.2d 621 (2020) (unpublished)
(suspending Rule 10).
 No. COA22-196 – State v. Bailey

INMAN, Judge, concurring in result only.

¶9 I concur in the majority’s decision to grant Defendant’s petition for certiorari.

But unlike the majority, I would hold that this Court has both the jurisdiction and

authority to consider the issues raised in Defendant’s Anders brief on appeal from an

order revoking his probation without invoking Rule 2 of our Rules of Appellate

Procedure. But conducting Anders-type review in this case, I can discern no

prejudicial error. For this reason, I concur only in the result reached by the majority.

¶ 10 This Court has not previously held, explicitly, that appeals from probation

revocations may be subject to Anders-type review. However, this Court has conducted

Anders-type reviews in appeals from probation revocations or violation

determinations in at least 21 cases, including once in a published decision, over the

past nearly three decades.4 And this Court recently announced its authority to

4 See, e.g., State v. Mayfield, 115 N.C. App. 725, 726-27, 446 S.E.2d 150, 151-52
(1994); State v. Brooks, 2022-NCCOA-145, ¶ 1 (unpublished); State v. Wilder, 271 N.C. App.
805, 842 S.E.2d 346 (2020) (unpublished); State v. Branning, 258 N.C. App. 205, 809 S.E.2d
927 (2018) (unpublished); State v. Grice, 254 N.C. App. 611, 801 S.E.2d 398 (2017)
(unpublished); State v. Woods, 248 N.C. App. 304, 790 S.E.2d 753 (2016) (unpublished);
State v. Williams, 249 N.C. App. 683, 791 S.E.2d 878 (2016) (unpublished); State v. Austin,
238 N.C. App. 199, 768 S.E.2d 63 (2014) (unpublished); State v. Johnson, 220 N.C. App.
160, 723 S.E.2d 582 (2012) (unpublished); State v. Odom, 212 N.C. App. 693, 718 S.E.2d 737
(2011) (unpublished); State v. Johnson, 210 N.C. App. 491, 711 S.E.2d 207 (2011)
(unpublished); State v. Blount, 204 N.C. App. 596, 696 S.E.2d 925 (2010) (unpublished);
State v. Burgess, 198 N.C. App. 703, 681 S.E.2d 864 (2009) (unpublished); State v. McNair,
197 N.C. App. 760, 680 S.E.2d 902 (2009) (unpublished); State v. Wilcox, 197 N.C. App. 233,
676 S.E.2d 669 (2009) (unpublished); State v. Wiggins, 187 N.C. App. 307, 652 S.E.2d 752
(2007) (unpublished); State v. Talley, 177 N.C. App. 813, 630 S.E.2d 258 (2006)
(unpublished); State v. Parrish, 167 N.C. App. 807, 606 S.E.2d 459 (2005) (unpublished);
State v. Hampton, 162 N.C. App. 181, 590 S.E.2d 332 (2004) (unpublished); State v.
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INMAN, J., concurring in result only

conduct Anders review for appeals in another post-conviction setting—DNA testing

pursuant to N.C. Gen. Stat. § 15A-270.1 (2021)—in State v. Velasquez-Cardenas, 259

N.C. App. 211, 815 S.E.2d 9 (2018).

¶ 11 Although the defendant in Velasquez-Cardenas was not entitled to Anders-like

review as of right because the North Carolina Constitution does not provide for a

right to counsel in post-conviction DNA proceedings, we recognized statutory law

confers that right in such cases. 259 N.C. App. at 215-16, 815 S.E.2d at 12-13

(“[B]ecause the General Assembly has created a general right of appeal from the

denial of motions made pursuant to the Act, this Court clearly has jurisdiction to

consider the request for Anders-type review made by Defendant’s appellate counsel.”

(emphasis in original) (citing State v. Thomsen, 369 N.C. 22, 25, 789 S.E.2d 639, 641-

42 (2016)). We noted that “[i]n all prior opinions of this Court involving Anders briefs

filed pursuant to a[ ] [Section] 15A-270.1 appeal, the State has implicitly accepted the

validity of the Anders procedure, and simply argued that the defendants’ appellate

counsel were correct in their determinations that no meritorious issues were

Lipscomb, 156 N.C. App. 698, 578 S.E.2d 1 (2003) (unpublished); State v. Burrus, 149 N.C.
App. 233, 562 S.E.2d 303 (2002) (unpublished); State v. Owens, 149 N.C. App. 233, 562
S.E.2d 303 (2002) (unpublished). But see State v. Tillman, 278 N.C. App. 149, 2021-
NCCOA-290, ¶ 10 (unpublished) (declining to conduct Anders review because defendants do
not have a constitutional right to counsel at probation revocation hearings); State v. Brown,
261 N.C. App. 538, 817 S.E.2d 922 (2018) (unpublished) (questioning the availability of
Anders review but nonetheless conducting discretionary, independent review in a probation
revocation appeal).
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INMAN, J., concurring in result only

identifiable from the trial records.” Id. at 214, 815 S.E.2d at 11 (citing 13 unpublished

opinions conducting Anders review in an appeal pursuant to Section 15A-270.1). We

further explained there was

no valid reason to deny Anders-type protections to
defendants in criminal proceedings from which there is a
statutory right of appeal, and [could] discern no compelling
reason why this Court, or the State, would find it desirable
to place appointed counsel in the position of choosing
between the duty to zealously assert the client’s position
under the rules of the adversary position, and the
prohibition on advancing frivolous claims.

Id. at 223, 815 S.E.2d at 17 (cleaned up) (emphasis added). We ultimately held, “this

Court has both jurisdiction and the authority to decide whether Anders-type review

should be prohibited, allowed, or required in appeals from [Section] 15A-270.1.

Exercising this discretionary authority, we hold that Anders procedures apply to

appeals pursuant to [Section] 15A-270.1.” Id. at 225, 815 S.E.2d at 18 (emphasis in

original).

¶ 12 This Court’s reasoning and holding in Velasquez-Cardenas applies to the

availability of Anders-like review of the appeal from a probation revocation order in

this case. Thus, I respectfully disagree with the majority opinion’s holding that this

Court is prohibited from conducting an Anders-type review separate from that

constitutionally mandated by Anders and its progeny. See id. at 214-16, 815 S.E.2d

at 12-13 (“The United States Supreme Court is charged with determining what
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INMAN, J., concurring in result only

constitutes the minimum rights and protections guaranteed by the United States

Constitution. States are of course free to permit, or require, procedures that afford

protections beyond what is constitutionally mandated.”).

I. FACTUAL & PROCEDURAL BACKGROUND

¶ 13 I supplement the majority opinion with the following facts disclosed from the

record below:

¶ 14 On 3 December 2019, after pleading guilty to possession of a firearm by a felon,

Defendant was sentenced by the trial court to 17 to 30 months in prison, suspended

for 24 months of supervised probation.

¶ 15 In 2021, Defendant was alleged to have violated the terms of his probation by,

among other things, committing a new criminal offense. During a hearing on 27

September 2021, Defendant admitted to three violations of the terms of his probation,

including committing the criminal offense of possessing a weapon in violation of his

offender status. The trial court revoked Defendant’s probation and activated his

suspended sentence.

¶ 16 Two days later, Defendant filed a handwritten notice of appeal, and the trial

court filed appellate entries. Defendant was then appointed appellate counsel, who

on 9 May 2022 filed a petition for writ of certiorari with this Court as well as a brief

seeking Anders-type review.
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II. ANALYSIS

A. Appellate Jurisdiction

¶ 17 Defendant’s handwritten letter filed two days following his probation hearing

notices an appeal of “the courts [sic] verdict.” The letter fails to comply with Rule 4 of

the North Carolina Rules of Appellate Procedure because it does not provide proof of

service upon the State or identify the judgment appealed or to which court the appeal

is taken. See N.C. R. App. P. 4(a)-(c) (2022). Recognizing that Defendant failed to give

proper notice of appeal from the probation revocation order, Defendant’s appellate

counsel filed a petition for writ of certiorari with this Court seeking Anders review.

¶ 18 This Court may issue a writ of certiorari “when the right to prosecute an appeal

has been lost by failure to take timely action.” N.C. R. App. P. 21(a)(1) (2022). Because

Defendant’s handwritten note evinces his intent to appeal the trial court’s revocation

of his probation, in our discretion, I agree with the majority’s decision to grant

Defendant’s petition to review the order revoking Defendant’s probation.

¶ 19 But I disagree with the majority’s determination that we may “only consider

arguments not raised by Defendant’s counsel by invoking Rule 2 in the exercise of our

discretion, as any argument not advanced in an appellant’s brief is abandoned under

Rule 28.” Rule 2 of our Rules of Appellate Procedure provides:

To prevent manifest injustice to a party, or to expedite
decision in the public interest, either court of the appellate
division may, except as otherwise expressly provided by
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these rules, suspend or vary the requirements or provisions
of any of these rules in a case pending before it upon
application of a party or upon its own initiative, and may
order proceedings in accordance with its directions.

N.C. R. App. P. 2 (2022). Rule 28(a) provides: “The scope of review on appeal is limited

to issues so presented in the several briefs. Issues not presented and discussed in a

party’s brief are deemed abandoned.” N.C. R. App. P. 28 (2022).

¶ 20 The majority holds that any issues not specifically raised in Defendant’s brief

requesting Anders-type review have been abandoned. Our Court considered this very

question in the context of Anders review on appeal from another post-conviction

proceeding––a motion for appropriate relief seeking DNA testing––in Velasquez-

Cardenas. The State contended that this Court should not conduct an Anders review

of the record. We concluded, independent of Rule 2, “Defendant’s brief requesting

Anders review and the State’s brief contending that we cannot apply Anders review

to this appeal place this issue squarely before us and meet the requirements of Rule

28.” Velasquez-Cardenas, 259 N.C. App. at 224, 815 S.E.2d at 18 (emphasis added).

We ultimately held that Anders review was appropriate in that context. Id. at 225,

815 S.E.2d at 18. A concurring judge wrote a separate opinion expressing concern

that the majority had considered arguments beyond this Court’s jurisdiction because

they were not articulated in compliance with Appellate Rule 28. Id. at 226, 815 S.E.2d

at 19 (Dillon, J., concurring).
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¶ 21 Insofar as an appeal from a probation violation hearing is in the same

procedural posture as an appeal from an order denying post-conviction DNA testing,

we are bound by this Court’s majority decision in Velasquez-Cardenas. See 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[.]” (citation omitted)). While hearings on

probation violations are not identical to hearings on post-conviction motions for DNA

testing, they are both post-conviction criminal proceedings.

¶ 22 As in Velasquez-Cardenas, Defendant’s brief seeking Anders review has

adequately raised this issue to satisfy Rule 28. Thus, we need not suspend any

appellate rules pursuant to Rule 2 to consider whether Anders procedures apply to

appeals from probation revocations. See, e.g., State v. Robinson, 279 N.C. App. 643,

2021-NCCOA-533, ¶ 9 (allowing a petition for writ of certiorari based on the

defendant’s failure to timely notice an appeal to conduct an Anders review without

invoking Rule 2).

¶ 23 I also cannot agree with the majority’s holding that our Supreme Court’s recent

decision in State v. Ricks, 378 N.C. 737, 2021-NCSC-116, compels us to conclude that

it would be an abuse of discretion to invoke Rule 2 in this case. Ricks holds that we

“may only invoke Rule 2 when injustice appears manifest to the court or when the

case presents significant issues of importance to the public interest.” Id. ¶ 1. Like one
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INMAN, J., concurring in result only

member of the majority in this case,

I do not read Ricks as holding that our Court lacks
jurisdiction to issue a writ to review a legal issue that
otherwise was not preserved at the trial court (and
therefore would require us to invoke Rule 2 to reach). Such
a reading would suggest a limitation of our jurisdiction to
issue such writs, which our Supreme Court does not have
the constitutional authority to do.

State v. Ore, 283 N.C. App. 524, 2022-NCCOA-380, ¶ 49 (Dillon, J., concurring).

¶ 24 Though I conclude that this Court has jurisdiction to review Defendant’s

appeal without invoking Rule 2, in the alternative, I would conclude that this appeal

properly falls within the narrow scope of the rule. Invoking Rule 2 would not be an

abuse of discretion, as the majority asserts, because review at this time would

“‘expedite decision in the public interest,’ . . . and settle a question of law that would

be certain to otherwise recur,” particularly in light of Defendant’s “clear reliance on

the precedent of this Court in conducting Anders review, without reservation,” on

appeals pursuant to N.C. Gen. Stat. § 15A-1347(a) (2021). Velasquez-Cardenas, 259

N.C. App. at 224-25, 815 S.E.2d at 18. As in Velasquez-Cardenas, countless

defendants have relied upon Anders review of an activation of their prison sentences

upon a revocation of probation, and many future defendants will rely on the

mechanism to vindicate their civil liberties. It would expedite decision in the public

interest to address whether this Court has the authority to conduct Anders review of

probation revocation appeals. See N.C. R. App. P. 2.
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¶ 25 Assuming arguendo that determining whether we have the authority to

conduct Anders review on appeal from probation revocations somehow does not

present a “significant issue[] of importance in the public interest,” the Supreme

Court’s reasoning in Ricks about the other prong of Rule 2, to prevent manifest

injustice, does not apply here. This case is distinguishable from Ricks, which

concerned an unpreserved challenge to an order for satellite-based monitoring

(“SBM”)––a “civil, regulatory scheme.” Ricks, ¶¶ 1, 6; State v. Hilton, 378 N.C. 692,

2021-NCSC-115, ¶ 24 (citing State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13

(2010)). In this case, Defendant appeals from a criminal judgment, a distinction this

Court has held is dispositive. Velasquez- Cardenas, 259 N.C. App. at 219, 815 S.E.2d

at 15 (“This Court in Lineberger determined it was bound by Harrison because SBM

proceedings are civil in nature. Neither Harrison nor any other opinion involving

Anders review in civil matters constitutes binding precedent in the criminal matter

presently before us.” (emphasis in original)).

B. Anders-type Review in Probation Revocation Appeals

¶ 26 Having established our jurisdiction over this matter and because the briefs

have raised the issue, see N.C. R. App. P. 28(a), I would take this opportunity to clarify

whether this Court may, in its discretion, conduct an Anders-type review in an appeal

from a probation revocation. See Velasquez-Cardenas, 259 N.C. App. at 226, 815

S.E.2d at 19 (Dillon, J., concurring) (“I agree with the majority’s statement to the
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extent that it suggests that we have jurisdiction (i.e., the authority) to conduct an

Anders-like review in the context of an appeal brought pursuant to N.C. Gen. Stat. §

15A-270.1. However, to the extent that the majority’s statement suggests that we are

required to conduct an Anders-like review, I respectfully disagree.” (emphasis

added)). For this reason, I disagree with the majority’s cursory conclusion that

“Anders is not invoked” in this setting.

¶ 27 In its appellate brief, as in the context of appeals from post-conviction DNA

testing in which this Court conducted Anders review, the State does not contest

Defendant’s application of Anders-type review for probation revocation appeals. And

like defendants pursuing post-conviction DNA testing, Defendant here cannot rely on

a constitutional right to counsel in probation revocation proceedings. Cf. State v.

Scott, 187 N.C. App. 775, 777, 653 S.E.2d 908, 909 (2007) (“A defendant at a probation

revocation hearing has a statutory right to counsel akin to the right enjoyed in a

criminal trial.” (emphasis added) (citations omitted)). But, just as it has done in the

context of post-conviction DNA litigation, our General Assembly has created a

statutory right to counsel at probation revocation hearings. N.C. Gen. Stat. § 7A-

451(a)(4) (2021); Velasquez-Cardenas, 259 N.C. App. at 215, 815 S.E.2d at 12-13 (“The

right to counsel on appeal from an order denying post-conviction DNA testing is not

of constitutional origin. It is purely a creature of statute, specifically [Section] 15A-

270.1[.]”). Finally, as is true for appeals from post-conviction DNA testing, defendants
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also have a statutory right to appeal where the trial court revokes their probation

and activates a suspended sentence. N.C. Gen. Stat. § 15A-1347(a) (2021); Velasquez-

Cardenas, 259 N.C. App. at 223, 815 S.E.2d at 17.

¶ 28 Following our historical practice of conducting Anders-type review in this

context and our decision in Velasquez-Cardenas, I would conclude “this Court has

both jurisdiction and the authority to decide whether Anders-type review should be

prohibited, allowed, or required in appeals from [probation revocation]. Exercising

this discretionary authority, [I would] hold that Anders procedures apply to appeals

pursuant to [Section 15A-1347(a)].” 259 N.C. App. at 225, 815 S.E.2d at 18 (emphasis

in original). Having concluded Defendant’s counsel could proceed pursuant to Anders

procedures in this matter, I would then address the merits of Defendant’s arguments.

See id.

C. Anders-type Review in this Case

¶ 29 Contemporaneously with the petition for writ of certiorari, Defendant’s counsel

also filed a brief seeking Anders-type review because counsel had examined the record

and applicable law and was “unable to identify an issue with sufficient merit to

support a meaningful argument for relief on appeal.” Defendant has not submitted

separate arguments for our consideration.

¶ 30 This Court has summarized Anders procedures as follows:

In order to comply with Anders, appellate counsel [is]
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required to file a brief referring any arguable assignments
of error, as well as provide [the] defendant with copies of
the brief, record, transcript, and the State’s brief. Kinch,
314 N.C. at 102, 331 S.E.2d at 666-67 . . . . Pursuant
to Anders, this Court must conduct “a full examination of
all the proceedings[,]” including a “review [of] the legal
points appearing in the record, transcript, and briefs, not
for the purpose of determining their merits (if any) but to
determine whether they are wholly frivolous.” Kinch, 314
N.C. at 102-103, 331 S.E.2d at 667 (citation omitted).

Robinson, ¶¶ 10-11. See also Velasquez-Cardenas, 259 N.C. App. at 225, 815 S.E.2d

at 18.

¶ 31 Defendant’s appellate counsel has complied with the requirements of Anders

and Kinch. Counsel’s brief, consistent with his obligation under Anders to refer this

Court to “anything in the record that might arguably support the appeal,” Anders v.

California, 386 U.S. 738, 744, 18 L.Ed.2d 493, 498 (1967), directs us to consider: (1)

whether the indictment was legally sufficient to confer jurisdiction on the trial court;

(2) whether the revocation of probation was proper; and (3) whether Defendant’s

sentence was authorized by statute.

¶ 32 Defendant’s indictments were legally sufficient and conferred jurisdiction on

the trial court because they gave Defendant notice of the criminal charges against

him with sufficient detail. See State v. Harris, 219 N.C. App. 590, 592-93, 724 S.E.2d

633, 636 (2012) (“[A]n indictment must contain: ‘A plain and concise factual

statement in each count which . . . asserts facts supporting every element of a criminal
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offense and the defendant’s commission thereof with sufficient precision clearly to

apprise the defendant or defendants of the conduct which is the subject of the

accusation.’” (quoting N.C. Gen. Stat. § 15A-924(a)(5) (2011))).

¶ 33 The trial court appropriately revoked Defendant’s probation as authorized by

N.C. Gen. Stat. § 15A-1344(a) (2021) after he admitted to the alleged probation

violation of committing a new criminal offense. See, e.g., State v. Melton, 258 N.C.

App. 134, 136-37, 811 S.E.2d 678, 680-81 (“A trial court may only revoke a defendant’s

probation in circumstances when the defendant: (1) commits a new criminal offense,

in violation of N.C. Gen. Stat. § 15A-1343(b)(1) . . . .”).

¶ 34 Finally, Defendant’s sentence falls squarely within the presumptive range

authorized by statute for a Class G Felony at a Prior Record Level III––a minimum

of 17 months and a maximum of 30 months imprisonment. See N.C. Gen. Stat. § 15A-

1340.17(c)-(d) (2021).

¶ 35 Having fully examined the record for issues of arguable merit and given that

it is well within a trial court’s discretion to revoke a defendant’s probation for the

commission of a new offense, Melton, 258 N.C. App. at 136-37, 811 S.E.2d at 680-81,

I am unable to find any possible prejudicial error and would hold that this appeal is

wholly frivolous.

¶ 36 Thus, while I reach the same result as the majority and can provide no relief

to Defendant, I write separately to distinguish between this Court’s authority to
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exercise its discretion and total want of jurisdiction. See, e.g., State v. Killette, 381

N.C. 686, 2022-NCSC-80, ¶ 16 (vacating and remanding this Court’s decision denying

a defendant’s petition for writ of certiorari for lack of jurisdiction a second time, after

earlier remand from the Supreme Court, because “the Court of Appeals has

jurisdiction and authority to issue the writ of certiorari here, although it is not

compelled to do so, in the exercise of its discretion”).

III. CONCLUSION

¶ 37 I would hold this Court has jurisdiction to reach the issues raised in the briefs

and that Anders procedures apply to appeals from probation revocations. After

conducting an Anders-type review of the record in this case, however, I can discern

no prejudicial error. For this reason, I concur only in the result reached by the

majority.