State v. Bailey

• Citation: 2022 NCCOA 792
• Decision Date: 06 December 2022
• Docket Number: COA22-196
• Parties: STATE OF NORTH CAROLINA v. KENNETH LEE BAILEY, Defendant
• Court: Court of Appeal of North Carolina (US)

2022-NCCOA-792

STATE OF NORTH CAROLINA v. KENNETH LEE BAILEY, Defendant

No. COA22-196

Court of Appeals of North Carolina

December 6, 2022

Heard in the Court of Appeals 6 September 2022.

Appeal by Defendant from order entered 27 September 2021 by Judge Cynthia K. Sturges in Person County Superior Court No. 20 CRS 316.

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).

¶ 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[.]")

¶ 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 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.

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 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, 64142 (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 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 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.

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...