State Carolina v. Petty

• Citation: 711 S.E.2d 509
• Decision Date: 07 June 2011
• Docket Number: No. COA10–846.,COA10–846.
• Parties: STATE of North Carolinav.Austin PETTY.
• Court: North Carolina Court of Appeals

711 S.E.2d 509

STATE of North Carolina

v.Austin PETTY.

No. COA10–846.

Court of Appeals of North Carolina.

June 7, 2011.

OPINION TEXT STARTS HERE

Appeal by the State from judgment entered 6 October 2009 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 January 2011.

Attorney General Roy Cooper, by Jess D. Mekeel, Assistant Attorney General, for the State.

H.M. Whitesides, Jr., Charlotte, for Defendant-appellee.

ERVIN, Judge.

The State appeals from an order entered by the trial court granting a motion by Defendant Austin Petty to dismiss a driving while impaired charge that had been lodged against Defendant, following Defendant's appeal offense in the District Court division for trial de novo. from his conviction for this division to the Superior Court The trial court dismissed the charge against Defendant based upon a determination that the District Court lacked the authority to enter judgment against Defendant in light of the peculiar circumstances revealed by the present record. On appeal, the State challenges the logic upon which the trial court relied in reaching this conclusion. After careful consideration of the State's challenge to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be reversed and that this case should be remanded to the Mecklenburg County Superior Court for further proceedings not inconsistent with this opinion.

I. Procedural History

On 28 April 2006, Defendant was charged with driving while impaired. On 27 June 2006, Defendant filed a motion to dismiss the DWI charge on the grounds that he had been denied his right to timely pretrial release as guaranteed by the Supreme Court's decision in State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). On 5 December 2006, Judge Nancy B. Norelli conducted a hearing concerning Defendant's motion and dismissed the driving while impaired charge. The State noted an appeal to the Superior Court division from Judge Norelli's order on 13 December 2006.

On 15 November 2007, the State's appeal was heard before Judge C. Phillip Ginn. On 29 November 2007, Judge Ginn entered an order (1) reversing Judge Norelli's decision to dismiss the driving while impaired charge that had been brought against Defendant, (2) requiring the State to proceed against Defendant solely on the basis of the theory of guilt set out in N.C. Gen.Stat. § 20–138.1(a)(2), and (3) remanding the case to the District Court division for further proceedings.

On 17 April 2008, Defendant filed a motion in the District Court seeking the reinstatement of Judge Norelli's decision to dismiss the driving while impaired charge in light of this Court's decision in State v. Morgan, 189 N.C.App. 716, 660 S.E.2d 545, disc. review denied, 362 N.C. 686, 671 S.E.2d 329 (2008). The ultimate disposition of this motion is not clear from the record. On 7 April 2009, Defendant entered a plea of guilty to driving while impaired before Judge Timothy Smith in the Mecklenburg County District Court. After finding Defendant guilty, Judge Smith, as is evidenced by a handwritten notation on a judgment form, arrested judgment without making findings or conclusions or in any other way explaining the basis of his decision.

On 1 May 2009, the State filed a Motion for Appropriate Relief in which the State asserted that Judge Smith was required, following Defendant's conviction for driving while impaired, to conduct a sentencing hearing and enter judgment pursuant to N.C. Gen.Stat. § 20–179(a). A hearing at which Defendant was present and represented by counsel was conducted on the issues raised by the State's motion on the same day. At the conclusion of this hearing, Judge Smith entered a judgment against Defendant imposing Level V punishment.

On 8 May 2009, Defendant filed a notice of appeal in which he stated that, “pursuant to N.C. Gen.Stat. [§ ] 15A–1431,” he was “giving notice of appeal and request[ing] a trial de novo in the Superior Court in Mecklenburg County, North Carolina on the above charges ... [and] shows unto the court that judgment was entered May 1, 2009.” On 1 June 2009, Defendant filed a motion seeking dismissal of the driving while impaired charge in which he alleged, among other things, that he had “been prejudiced by further proceeding in this case following the order arresting judgment” and requested the court “to find that all charges against this Defendant should be dismissed with prejudice.”

A hearing was held before the trial court at which the issues raised by Defendant's motion were addressed on 25 September 2009. On 6 October 2009, the trial court entered an order granting Defendant's dismissal motion. The State noted an appeal to this Court from the trial court's order.

II. Legal Analysis

On appeal, the State argues that the trial court “lacked subject matter jurisdiction to engage in appellate review of the district court judgment” and erred by failing to simply address the issue of Defendant's guilt of driving while impaired in this case by means of a trial de novo. The State's argument has merit.

As a general proposition, a criminal defendant who appeals a conviction from the District Court division to the Superior Court division is effectively writing on a clean slate in the Superior Court. “It is established law in North Carolina that trial de novo in the superior court is a new trial from beginning to end, on both law and facts, disregarding completely the plea, trial, verdict and judgment below; and the superior court judgment entered upon conviction there is wholly independent of any judgment which was entered in the inferior court.” State v. Spencer, 276 N.C. 535, 543, 173 S.E.2d 765, 771 (1970). “When an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial,” so that “[t]he judgment appealed from is completely annulled and is not thereafter available for any purpose.” State v. Sparrow, 276 N.C. 499, 507, 173 S.E.2d 897, 902 (1970) (citing State v. Goff, 205 N.C. 545, 172 S.E. 407 (1934), and State v. Meadows, 234 N.C. 657, 68 S.E.2d 406 (1951) (other citations omitted)). “[I]nasmuch as the trial in the Superior Court is de novo, alleged errors committed in the inferior court must be disregarded.” State v. Crandall, 225 N.C. 148, 154, 33 S.E.2d 861, 864 (1945) (citing State v. Brittain, 143 N.C. 668, 57 S.E. 352 (1907) (other citation omitted)). As a result, the Superior Court does not engage in appellate review of the correctness of the District Court's rulings in the course of handling an appeal from a District Court conviction. However, the Superior Court may, if necessary, review the proceedings conducted in the District Court for the purpose of ensuring that it has jurisdiction over the charges against the defendant, since a “trial court must have subject matter jurisdiction over a case in order to act in that case[,]” State v. Satanek, 190 N.C.App. 653, 656, 660 S.E.2d 623, 625 (2008) (citing State v. Reinhardt, 183 N.C.App. 291, 292, 644 S.E.2d 26, 27 (2007)), and since “a court's lack of subject matter jurisdiction is not waivable and can be raised at any time.” In re K.J.L., 363 N.C. 343, 346, 677 S.E.2d 835, 837 (2009).

“Jurisdiction, when applied to courts and speaking generally, consists in the power to hear and determine causes [.] ... It relates to the subject-matter of the controversy or to the person [.]” State v. Hall, 142 N.C. 710, 713, 55 S.E. 806, 807 (1906). “ ‘Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it[,] ... [and] is conferred upon the courts by either the North Carolina Constitution or by statute.’ ” In re McKinney, 158 N.C.App. 441, 443, 581 S.E.2d 793, 795 (2003) (quoting Haker–Volkening v. Haker, 143 N.C.App. 688, 693, 547 S.E.2d 127, 130, disc. rev. denied, 354 N.C. 217, 554 S.E.2d 338 (2001), and Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987)). “The jurisdiction of the superior court on appeal from a conviction in district court is derivative. Defendant may not be tried de novo in the superior court on the original warrant without a trial and conviction in the district court.” State v. Wesson, 16 N.C.App. 683, 689, 193 S.E.2d 425, 429 (1972), cert. denied, 282 N.C. 675, 194 S.E.2d 155 (1973) (citations omitted). As a result, the Superior Court division lacks jurisdiction over a misdemeanor appeal in the event that the defendant was not tried and convicted in the District Court division, State v. Johnson, 251 N.C. 339, 340–41, 111 S.E.2d 297, 298–99 (1959), or if a warrant is substantially amended in the Superior Court division so as to charge an offense different from that for which Defendant was convicted in the District Court division, State v. Thompson, 2 N.C.App. 508, 511–12, 163 S.E.2d 410, 412 (1968). Thus, “[u]ntil defendant [is] tried and convicted in district court and [has] appealed to superior court for trial de novo, the superior court ha[s] no jurisdiction of the case.” State v. Killian, 61 N.C.App. 155, 158, 300 S.E.2d 257, 259 (1983).

According to N.C. Gen.Stat. § 7A–272(a), “the district court has exclusive, original jurisdiction for the trial of ... misdemeanors.” For that reason, there can be no dispute but that the District Court division had jurisdiction over Defendant's person and the driving while impaired charge lodged against Defendant. Defendant, however, contends that Judge Smith had no “jurisdiction” to enter judgment, essentially characterizing the trial court's decision to dismiss the driving while impaired charge as a determination that Judge Smith lacked jurisdiction to enter judgment against him. In Defendant's view, the Superior Court division lacked jurisdiction because the lower court judgment had been arrested and because the State did not comply with the motion for appropriate relief st...