IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-95
Filed: 6 October 2020
Guilford County, No. 15 CRS 91650
STATE OF NORTH CAROLINA
v.
TIMOTHY BAUNGARTNER
Appeal by Defendant from Judgment entered 17 May 2019 by Judge John O.
Craig, III in Guilford County Superior Court. Heard in the Court of Appeals 26
August 2020.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Laura
H. McHenry, for the State.
Drew Nelson for the defendant.
HAMPSON, Judge.
Timothy Baungartner (Defendant)—acting pro se at the time—filed two
separate written Notices of Appeal from a Judgment entered 17 May 2019 upon
Defendant’s conviction for Habitual Impaired Driving. In addition, Defendant’s
appointed appellate counsel has filed a Petition for Writ of Certiorari requesting this
Court issue the Writ of Certiorari to permit appellate review of both the 17 May 2019
Judgment and a separate civil order awarding Defendant’s trial counsel attorneys’
STATE V. BAUNGARTNER
Opinion of the Court
fees related to the defense of Defendant’s case. Relevant to this appeal, the Record
before us reflects the following:
Factual and Procedural Background
On 17 December 2018, Defendant was indicted for Driving While Impaired and
Habitual Impaired Driving. Defendant’s case came on for a jury trial on 15 and 16
May 2019 in Guilford County Superior Court. At the close of the State’s evidence,
Defendant’s trial counsel moved to dismiss the charges asserting the evidence was
insufficient to support the State’s charges against Defendant. The Motion to Dismiss
was summarily denied. Defendant then presented evidence in his defense.
Defendant’s trial counsel did not renew the Motion to Dismiss at the close of all the
evidence.
The trial court instructed the jury on the charge of Driving While Impaired
and submitted that charge to the jury. While the jury was deliberating, the trial court
inquired of Defendant’s trial counsel whether Defendant would stipulate to the
existence of prior Driving While Impaired convictions for purposes of establishing the
offense of Habitual Impaired Driving. Defendant’s trial counsel replied: “I haven’t
had a chance to ask him, but I’ll do it right now.” The jury then returned its verdict
finding Defendant guilty of Driving While Impaired.
The trial court released the jury and proceeded to the sentencing phase of the
trial. During sentencing, the State presented a Prior Record Level Worksheet
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Opinion of the Court
showing Defendant had a Prior Record Level of IV. Included on this worksheet was
a listing of fifteen prior convictions, which included three prior convictions for Driving
While Impaired. Both Defendant and his trial counsel signed off on this worksheet
stipulating to the worksheet calculation, including the listing of prior convictions.
The trial court in rendering judgment announced: “Upon my consideration of the . . .
record of [Defendant] and his stipulation that he qualifies for habitual felon status
with three prior DWIs, the court will arrest judgment on the underlying DWI and
will sentence [Defendant] at the bottom of the presumptive range.” Additionally, the
trial court announced it would reduce the attorneys’ fees for Defendant’s appointed
trial counsel to a civil judgment. The trial court did not inquire of Defendant whether
he wished to be heard on the award of attorneys’ fees. Defendant’s trial counsel did
not give oral notice of appeal from the criminal judgment in open court.
On 17 May 2019, the trial court entered its written Judgment against
Defendant for Habitual Impaired Driving and sentenced Defendant to 20-33 months
incarceration. The same day, the trial court entered a civil judgment against
Defendant for attorneys’ fees in the amount of $2,094.00. On 24 May 2019,
Defendant, acting pro se, filed two handwritten Notices of Appeal seeking to appeal
his case.
Issues
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Opinion of the Court
This case requires us to resolve three issues: (I) whether this Court should
exercise jurisdiction over Defendant’s appeal; (II) whether Defendant’s trial counsel
preserved a challenge to Defendant’s conviction for Habitual Impaired Driving; and
(III) whether the trial court’s failure to directly inquire of Defendant if he wished to
be heard on the award of attorneys’ fees requires the civil judgment be vacated and
the matter remanded to the trial court to perform this required task.
Analysis
I. Appellate Jurisdiction
Recognizing Defendant’s trial counsel did not give oral notice of appeal in open
court and that Defendant’s pro se Notices of Appeal, although timely, may contain
technical defects precluding appellate review of the Habitual Impaired Driving
Judgment and, further, Defendant’s pro se written Notices of Appeal—by failing to
specifically identify the civil judgment for attorneys’ fees—may be deemed wholly
insufficient to permit appellate review of the attorneys’ fee award, Defendant’s
appellate counsel has filed a Petition for Writ of Certiorari with this Court requesting
this Court accept jurisdiction of Defendant’s appeal of both the criminal conviction
and the civil award of attorneys’ fees. For its part, the State acknowledges a number
of instances of defective Notices of Appeal in which this Court has issued our Writ of
Certiorari to permit appellate review of criminal judgments and civil judgments for
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STATE V. BAUNGARTNER
Opinion of the Court
attorneys’ fees entwined with a criminal case and, neither opposing nor conceding the
point, allows issuance of the writ is within our discretion.
It is evident from the pro se handwritten Notices of Appeal—technical defects
notwithstanding—at a minimum Defendant intended to timely preserve his right to
appeal from his criminal conviction for Habitual Impaired Driving. See State v.
Locklear, 259 N.C. App. 374, 376, 816 S.E.2d 197, 200 (2018). Moreover, the primary
defects in Defendant’s Notices of Appeal, as it relates to his criminal conviction, are
a failure to identify the court to which appeal is taken and certifying service on the
State. On at least one prior occasion, this Court has acknowledged these are not the
sorts of defects requiring dismissal of an appeal on a jurisdictional basis. State v.
Miller, 259 N.C. App. 734, 813 S.E.2d 482, disc. rev. denied, 371 N.C. 477, 818 S.E.2d
289 (2018) (unpublished). Rather, if the State does not object, we may deem the
appeal properly taken from a jurisdictional standpoint. Id. Here, the State raises no
objection. Nevertheless, as the adequacy of Defendant’s pro se handwritten Notices
of Appeal, at best, remains questionable, we allow Defendant’s Petition for Writ of
Certiorari to ensure our appellate jurisdiction over his appeal.
Further, this Court has regularly allowed certiorari in order to correct a trial
court’s error in failing to directly address a criminal defendant directly and afford a
defendant the basic right to be heard prior to entering a civil judgment against that
defendant for the attorneys’ fees of defense counsel. See, e.g., State v. Mayo, 263 N.C.
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Opinion of the Court
App. 546, 549, 823 S.E.2d 656, 659 (2019); see also State v. Friend, 257 N.C. App. 516,
519, 809 S.E.2d 902, 905 (2018). In our discretion, we allow Defendant’s Petition for
Writ of Certiorari solely for purposes of ensuring appellate jurisdiction over this
matter and to review Defendant’s arguments as to both the civil and criminal
judgments entered by the trial court.
II. Error Preservation Related to Habitual Impaired Driving
The sole argument raised by Defendant on appeal challenging his criminal
conviction is whether the evidence presented by the State at trial is sufficient to
support his conviction for Habitual Impaired Driving. Specifically, Defendant argues
the State presented no evidence of prior convictions for Driving While Impaired to
support the Habitual Impaired Driving charge during the guilt/innocence phase of
the trial, and there is nothing in the Record to establish the State secured any
stipulation to prior convictions from Defendant before the case was submitted to the
jury. Defendant concedes his trial counsel failed to preserve the issue of the
sufficiency of the evidence by failing to renew his Motion to Dismiss at the close of all
the evidence. Instead, Defendant requests we invoke N.C.R. App. P. 2 to suspend the
rules related to error preservation and reach the merits of this singular issue. We
decline to do so. Irrespective of any alleged procedural flaws under which Defendant
stipulated to the existence of the requisite prior convictions for Driving While
Impaired, the fact remains Defendant and his trial counsel did stipulate to the
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Opinion of the Court
existence of these convictions as alleged in the Habitual Impaired Driving
Indictment, as part of the sentencing phase of trial, undermining any substantive
argument Defendant should not have been sentenced for Habitual Impaired Driving.
Moreover, not only did Defendant’s trial counsel not renew his Motion to Dismiss,
there was also no objection to the process by which the trial court effectively
bifurcated the two charges or to the trial court only instructing the jury on the
underlying Driving While Impaired charge. Thus, we determine this case does not
warrant suspension of the appellate rules under Rule 2 to review the merits of this
issue. Therefore, we conclude there was no reversible error in the entry of Judgment
against Defendant for Habitual Impaired Driving.
III. Civil Judgment for Attorneys’ Fees
Defendant next argues the trial court erred by entering a civil judgment
against him for his appointed trial counsel’s fees without first personally addressing
Defendant directly as to whether Defendant wished to be heard on that issue. This
Court squarely addressed this very question in State v. Friend, where this Court
expressly and clearly held: “before entering money judgments against indigent
defendants for fees imposed by their court-appointed counsel under N.C. Gen. Stat. §
7A-455, trial courts should ask defendants—personally, not through counsel—
whether they wish to be heard on the issue.” 257 N.C. App. at 523, 809 S.E.2d at 907.
We vacated the civil judgment and remanded the matter to the trial court for the
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Opinion of the Court
defendant to be given the opportunity to be heard on the issue. Id. Indeed, in Friend,
we granted certiorari specifically because of the defendant’s meritorious argument.
Id. at 519, 809 S.E.2d at 905. Since Friend was decided in 2018, this Court has
consistently followed Friend vacating civil judgments and remanding for additional
proceedings time and time again. See, e.g., State v. Baker, 260 N.C. App. 237, 244,
817 S.E.2d 907, 912 (2018); State v. Bivens, ___ N.C. App. ___, ___, 830 S.E.2d 702
(2019) (slip op. at 9-10) (unpublished); State v. Manley, ___ N.C. App. ___, ___, 845
S.E.2d 206 (2020) (slip op. at 7) (unpublished); State v. Ray, ___ N.C. App. ___, ___,
842 S.E.2d 647, 652 (2020); State v. Melvin, ___ N.C. App. ___, ___, 834 S.E.2d 452
(2019) (slip op. at 22) (unpublished), disc. rev. allowed, 373 N.C. 595, 837 S.E.2d 888
(2020).1
Our dissenting colleague reasserts his dissenting view in a recent decision on
this issue. See State v. Mangum, ___ N.C. App. ___, ___, 840 S.E.2d 862 (2020) (Tyson,
J., dissenting). As we understand our colleague’s position, it is that Defendant, on
the Record before us, has shown no prejudice that would change the result of the civil
judgment. That, however, is precisely the point: if a defendant is not provided with
the basic due process of any notice and opportunity to be heard on the award of
attorneys’ fees, a defendant cannot create any record which we could meaningfully
1This is a selection. The list goes on. Our research reflects over thirty-five cases since Friend
was decided in 2018 that address this aspect of its ruling in some form or fashion.
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STATE V. BAUNGARTNER
Opinion of the Court
review or from which we may ascertain if there is any valid challenge to the award of
attorneys’ fees.2 Therein lies the prejudice. As our Court recognized in Friend, the
award of fees to a defendant’s trial counsel raises an inherent problem: the interests
of appointed trial counsel and a defendant may not be aligned on this issue—
including what amount of fees should reasonably be awarded.3 Friend, 257 N.C. App.
at 522-23, 809 S.E.2d 906-07. Thus, this is one instance in which, in the absence of
other evidence a defendant is aware of their right to be heard, we require the trial
court to address a defendant directly rather than relying on trial counsel to either
inform their client of this right or to lodge any objection to the award of their own
fees. See id. This is done for the express purpose of permitting meaningful appellate
review and ensuring a defendant understands the right to be heard on this issue
before a civil judgment is entered against that defendant. Id.
Here, as our dissenting colleague points out, it does appear Defendant was in
the courtroom and had not yet been remanded into custody when the trial court
simply announced “[a]nd I will let the attorney fee and the court costs go to a civil
judgment.” Indeed, this was done during the trial court’s rendering of its sentence.
Our dissenting colleague is also correct that in the preamble to the pre-printed form
2 Our dissenting colleague assumes there is not.
3 This also perhaps informs our practice of allowing appellate counsel to seek review of this
issue through issuance of the Writ of Certiorari rather than relying on trial counsel to themselves file
a separate Notice of Appeal from an award of their own attorneys’ fees or expecting trial counsel to
inform an indigent defendant of the requirement to file a separate written Notice of Appeal from the
civil judgment.
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Opinion of the Court
(AOC-CR-225) used to enter judgment against indigent defendants for their trial
attorney’s fees and utilized in this case, it does in fact recite: “After due notice to the
defendant named on the reverse and opportunity to be heard . . ..” Notably, however,
this form does not actually require the trial court to affirmatively make any such
finding—for example, by checking a box as is done on other such forms—but is simply
a blanket recitation.4
Moreover, this recitation is incongruous with the Record before us. There is
no indication in either the transcript or in the Record of proceedings prior to the entry
of the civil judgment that Defendant was, in fact, apprised of his right to be heard or
given the opportunity to be heard on the entry of judgment against him for appointed
counsel’s fees.5 Nor did the trial court, in the absence of other evidence, make a direct
inquiry of Defendant. In light of our prior precedent, we vacate the civil judgment
4 Also, nowhere on the pre-printed application is trial counsel required to certify the defendant
was advised of their opportunity to be heard on this issue. Perhaps one way to assist in preventing
the seemingly endless string of appeals on this issue and alleviate the additional burdens placed on
trial judges, counsel, and the parties to these civil judgments would be to revise the form to require
trial counsel to certify the defendant has been informed of their right to be heard on the award of
attorneys’ fees (and, indeed, of their right to file a separate notice of appeal from this award) and for
the trial judge to make this finding by affirmatively checking a box on the form. On one hand, this
would evidence such a specific finding applicable to the specific case and, on the other, serve as a cue
to trial counsel to ensure there is, in fact, evidence in the record in support of this finding
“demonstrating Defendant was aware of the opportunity to be heard” to support the application for
their claim for attorneys’ fees. Friend, 257 N.C. App. at 523, 809 S.E.2d at 907.
5 The dissent also correctly points out in the Affidavit of Indigency completed by an indigent
defendant to obtain an appointed attorney, it states the affiant “may be required to repay the cost of
your lawyer” and the trial court “may also enter a civil judgment against you[.]” Nobody questions the
fact an indigent defendant—put in the position of applying for court-appointed counsel or facing
serious criminal charges without representation—accepts this as a condition of the appointment.
However, nowhere in this notice does it actually inform an indigent defendant they have a right to be
heard prior to the entry of any such possible civil judgment.
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Opinion of the Court
and remand for further proceedings consistent with State v. Friend to either provide
Defendant an opportunity to be heard directly on this issue or for the introduction of
“other evidence in the record demonstrating that the defendant received notice, was
aware of the opportunity to be heard on the issue, and chose not to be heard.” Id. at
523, 809 S.E.2d at 907.
In so doing, we acknowledge our colleague’s concern that having to repeatedly
remand these cases for such additional proceedings is inefficient and creates an
unnecessary burden on our trial courts. The potential, however, for unjustly
depriving any person of this basic due process right to notice and an opportunity to
be heard outweighs any inefficiency caused by the process of remanding these matters
back to the trial court. Otherwise, the remedy is simple. Prior to entry of the civil
judgment, trial counsel and trial courts should, consistent with Friend, ensure there
is evidence in the Record demonstrating a defendant was given the opportunity to be
heard directly on the fee award or was otherwise given notice of the opportunity to be
heard and declined to exercise that right.
Conclusion
Accordingly, for the foregoing reasons, we conclude there was no reversible
error in Defendant’s criminal trial. However, we vacate the trial court’s civil
judgment for attorneys’ fees and remand this matter for further proceedings on the
award of attorneys’ fees consistent with State v. Friend.
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Opinion of the Court
NO ERROR IN PART; VACATED IN PART AND REMANDED.
Judge BROOK concurs.
Judge TYSON dissents in a separate opinion.
No. COA20-95 – State v. Baungartner
TYSON, Judge, dissenting.
It is undisputed and we all agree Defendant waived any statutory right to
appeal the underlying issue he now purports to raise due to his failure to renew his
motion to dismiss at the close of all the evidence. Rule 21 of the North Carolina Rules
of Appellate Procedure does not set forth the grounds Defendant asserts to issue the
requested writ. N.C. R. App. P. 21. With no showing of either merit or prejudice,
Defendant has shown no basis to grant his PWC or for this Court to exercise our
discretion to invoke Rule 2 to suspend the Rules of Appellate Procedure to issue the
writ. N.C. Gen. Stat. § 15A-1444(e) (2019).
I. Failure to Renew Motion at the Close of all Evidence
Defendant asserts this Court should overturn his jury’s conviction and
judgment for habitual impaired driving. At the close of the State’s case, Defendant’s
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STATE V. BAUNGARTNER
TYSON, J., dissenting
counsel moved to dismiss the charges against him. Defendant then called a witness
to testify for his defense. Defendant’s counsel failed to renew his motion to dismiss
after he rested his case at the close of all of the evidence.
“In a criminal case, a defendant may not make insufficiency of the evidence to
prove the crime charged the basis of an issue presented on appeal unless a motion to
dismiss the action, or for judgment as in case of nonsuit, is made at trial.” N.C. R.
App. P. 10(a)(3). Defendant failed to renew his objection after he had introduced
evidence. A “waiver precludes the defendant from urging the denial of such a motion
as a ground for appeal.” Id.
Appellate Rule 10(a)(3) further provides: “if a defendant fails to move to
dismiss the action, or for judgment as in case of nonsuit, at the close of all the
evidence, defendant may not challenge on appeal the sufficiency of the evidence to
prove the crime charged.” Id. Defendant and the majority’s opinion concede he is
procedurally barred from attacking the sufficiency of the evidence to support his
conviction on that charge, due to his failure to renew his motion at the conclusion of
all evidence at trial.
Defendant and his trial counsel also stipulated to three prior DWI convictions
as alleged in the Habitual Impaired Driving indictment, as part of the sentencing
phase of trial. In addition to failing to renew his motion to dismiss at the close of all
evidence, his prior convictions and knowing stipulation undermine any substantive
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STATE V. BAUNGARTNER
TYSON, J., dissenting
argument on merit or prejudice asserting Defendant should not have been sentenced
for Habitual Impaired Driving. Defendant’s meritless PWC and purported appeal
are properly dismissed. Id.
Defendant is also seeking discretionary review of his civil judgment in the
same PWC. Defendant’s assertions challenging his civil judgment are also wholly
frivolous and fail to demonstrate either merit or prejudice to invoke and allow
discretionary review. I vote to deny Defendant’s PWC and to dismiss his arguments.
I respectfully dissent.
II. Violations of Appellate Rules
North Carolina appellate courts have repeatedly held: “It is not the role of the
appellate courts to create an appeal for an appellant. . . . Our Supreme Court
previously stated that the Rules of Appellate Procedure must be consistently applied;
otherwise, ‘the Rules become meaningless, and an appellee is left without notice of
the basis upon which an appellate court might rule.’” Dogwood Dev. & Mgmt. Co.,
LLC v. White Oak Transp. Co., 192 N.C. App. 114, 118-19, 665 S.E.2d 493, 497-98
(2008) (quoting Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005)); see also State v. Bursell, 372 N.C. 196, 198-99, 827 S.E.2d 302, 304 (2019)
(“[T]he Rules of Appellate Procedure are mandatory and not directory and the failure
of the parties to comply with the rules, and failure of the appellate courts to demand
compliance therewith, may impede the administration of justice.”).
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STATE V. BAUNGARTNER
TYSON, J., dissenting
Defendant and the majority’s opinion disregard our Court’s long-standing
policies, procedures, precedents, and rules by his asserting and by this Court allowing
his PWC to review a wholly frivolous argument with no demonstrated merit or
prejudice and no potential change in the outcome upon remand.
III. No Merit
We all agree Defendant filed defective notices of appeal and failed to serve
them. With no right of appeal, Defendant filed a PWC to invoke appellate
jurisdiction. For almost a century, our Supreme Court has held: “Certiorari is a
discretionary writ, to be issued for good and sufficient cause shown, and it is not one
to which the moving party is entitled as a matter of right.” Womble v. Gin Co., 194
N.C. 577, 579, 140 S.E. 230, 231 (1927) (citations omitted).
To warrant consideration of a PWC, our Supreme Court also held Defendant’s
“petition for the writ must show merit, or that error was probably committed below.”
State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation omitted).
Without threshold allegations of both merit and prejudice, review by certiorari is not
available to Defendant by rule, statute, or by precedents. Id.; N.C. Gen. Stat. §§ 15A-
1443, 15A-1444(g); N.C. R. App. P. 21.
Defendant’s frivolous PWC is purely form over substance, alleges no potential
merit, asserts no prejudice, nor offers any probability of a different result upon
remand. Defendant’s meritless and non-prejudicial PWC is properly denied.
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STATE V. BAUNGARTNER
TYSON, J., dissenting
The majority’s opinion does not attempt to distinguish the rules and precedents
above, cites no basis or merit to allow the petition, fails to identify any prejudice
suffered by Defendant, and does not forecast nor compel any different result upon
remand. Their result compels the superior court to waste time, needlessly engage in
an exercise of utter futility, expend scarce public resources, and to potentially
increase costs to Defendant.
After Defendant is given further notice and opportunity to be heard on the
imposition of the civil judgment for attorney fees for $2,094.00, the trial court can and
should re-enter the civil judgment Defendant expressly agreed to pay and did not
contest. Also, an additional civil judgment should be entered against Defendant for
the time spent by his appointed trial counsel to prepare, re-appear, and re-present
the original and an additional sheet for time spent to appear for the unnecessary
hearing upon remand.
In contrast to the facts in State v. Friend, Defendant fails to assert any
arguments towards the quality of service appointed counsel rendered or to challenge
the calculation of hours for services provided or the fees earned by his requested and
court-appointed counsel. See State v. Friend, 257 N.C. App. 516, 521, 809 S.E.2d 902,
906 (2018).
This review of a wholly frivolous PWC and remand to the superior court is a
waste of scarce and valuable judicial resources during a time when other pressing
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STATE V. BAUNGARTNER
TYSON, J., dissenting
cases and matters are delayed due to closures and restrictions from the ongoing
COVID-19 pandemic. Order of the Chief Justice of North Carolina, (15 Sept. 2020),
https://www.nccourts.gov/news/tag/press-release/chief-justice-beasley-issues-order-
extending-several-existing-emergency-directives.
IV. Notice
Defendant was represented at trial by a court-appointed attorney he
requested. Prior to his attorney’s appointment, Defendant would have completed and
filed an Affidavit of Indigency, Form AOC-CR-226. This form states, in bold lettering
and a larger font:
A court-appointed lawyer is not free. If you
are convicted or plead guilty or no contest,
you may be required to repay the cost of your
lawyer as a part of your sentence. The Court
may also enter a civil judgment against you,
which will accrue interest at the legal rate
set out in G.S. 24-1 from the date of the entry
of judgment. Your North Carolina Tax
Refund may be taken to pay for the cost of
your court-appointed lawyer. In addition, if
you are convicted or plead guilty or no
contest, the Court must charge you an
attorney appointment fee and may enter this
fee as a civil judgment against you pursuant
to G.S. 7A-455.1.
See N.C. Gen. Stat. § 7A-455.1 (2019).
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STATE V. BAUNGARTNER
TYSON, J., dissenting
Defendant expressly requested, agreed to, and was on notice of his liability for
payment of attorney fees as a consequence of his guilty plea or verdict to be entered
as a civil judgment. The majority’s opinion’s inapplicable notice requirement from
Friend is inconsistent with the facts before us and is not as expansive as their opinion
asserts. See Friend, 257 N.C. App. at 523, 809 S.E.2d at 907 (“Our holding today does
not announce a new rule of constitutional law. The requirement that defendants be
afforded notice and an opportunity to be heard before imposition of a civil judgment
for attorneys’ fees was established in Jacobs and Crews.”).
Defendant’s prior notice, knowledge, lack of challenge, and consent to entry of
the civil judgment for the fees incurred by his appointed attorney after his express
requests and acceptance of benefits obviates merit or prejudice from entry of the civil
judgment. The holding in State v. Friend and the other cases cited by the majority
do not control the outcome here, where the averments in Defendant’s PWC asserts no
merit or potential prejudice. Id.
Under different and more egregious facts, this Court in Friend only stated,
“trial courts should ask defendants. . . only if there is [not] other evidence in the
record demonstrating that the defendant received notice, was aware of the
opportunity to be heard on the issue, and chose not to be heard.” Id. (emphasis
supplied). It is undisputed that Defendant was in court when his counsel presented
the attorney fee application.
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STATE V. BAUNGARTNER
TYSON, J., dissenting
The AOC-CR-225 Judgment Form signed by the trial court contains the
following findings: “After due notice to the defendant named on the reverse and
opportunity to be heard.” Defendant fails to challenge these findings, which are
binding upon appeal. He contracted for and became civilly liable upon a guilty
verdict. The trial court found notice and Defendant was aware of his right to be heard
by the trial court regarding the imposition of the civil judgment for attorney fees and
stood mute. Defendant agreed in writing that if he pled guilty or was found guilty,
he was liable to pay his attorney fees, was present in court when the fee petition was
presented and discussed, “and chose not to be heard.” Id.
Defendant “chose not to be heard” by the trial court upon the imposition of a
civil judgment for fees he expressly agreed to pay, and fails to challenge the Court’s
written findings of fact. The holding in State v. Friend is inapplicable. Friend, 257
N.C. App. at 523, 809 S.E.2d at 907.
V. Conclusion
We all agree Defendant failed to assert or file valid notices of appeal or to serve
the State. N.C. R. App. P. 3 (“requiring written notice of appeal in a civil matter”).
Defendant concedes he is procedurally barred from attacking the sufficiency of the
evidence to support his conviction for Habitual Impaired Driving. He failed to renew
his motion at the conclusion of his evidence at trial. N.C. R. App. P. 10(a)(3). He also
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STATE V. BAUNGARTNER
TYSON, J., dissenting
stipulated to three prior DWI convictions to support the underlying criminal
judgment.
Defendant’s PWC “must show merit or that error was probably committed
below.” Grundler, 251 N.C. at 189, 111 S.E.2d at 9 (citation omitted). These
standards mandate a PWC to be “issued only for good and sufficient cause shown.”
Id. (citation omitted). Absent Defendant’s mandatory duty to “show merit” or
probable prejudicial “error,” there is no “good and sufficient cause shown to issue” the
PWC. Id. Defendant has not demonstrated merit or prejudice in his PWC.
Defendant was informed and agreed appointed counsel was not free counsel.
He specifically requested and is liable to pay for his counsel’s fees. N.C. Gen. Stat. §
7A-455.1; see Form AOC-CR-226 (Affidavit of Indigency). He expressly agreed to pay
his attorney’s fees in the event he pled or was found guilty. Id.
Defendant was present in court when the fee application was presented and
was ordered to pay his attorney fees after sentencing. The civil judgment specifically
states it is entered”[a]fter due notice to the defendant named. . . and opportunity to
be heard.” Defendant was free to question or challenge, but stood mute and failed to
do so when the amount of counsel’s fees and his liability for this civil judgment was
discussed and entered, and he “chose not to be heard.” Friend, 257 N.C. App. at 523,
809 S.E.2d at 907.
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STATE V. BAUNGARTNER
TYSON, J., dissenting
Defendant’s defective and frivolous PWC asserts no prejudice of how the result
will differ upon remand, except for his appellate counsel to subject Defendant to an
even higher civil judgment for his appointed trial counsel’s fee to prepare for and
appear at a wholly unnecessary hearing upon remand. Defendant’s PWC is properly
denied under our statutes, rules, procedures, and precedents. His frivolous assertions
are properly dismissed.
Unlike in Friend, Defendant offers no challenge to the quality of counsel’s
services or to the proper calculation of his agreed-upon fees. The PWC does not
challenge the trial court’s written findings of fact. The civil judgment finds Defendant
received notice and an opportunity to be heard, “chose not to be heard,” and did not
assert any merit or prejudice. The majority’s opinion does not state any prejudice to
Defendant.
Scarce judicial resources and taxpayer funds are wasted with these frivolous
purported appeals and unnecessary remands, which show no jurisdiction, assert no
merits, and result in no prejudice. The trial court should enter the same civil
judgment of $2,094.00 upon remand, plus a judgment for any new fees incurred by
trial counsel for preparing for and attending that hearing.
I vote to deny Defendant’s PWC and dismiss his arguments. I respectfully
dissent.
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State v. BaungartnerÂ
Combined Opinion