State v. Corbett, COA07-856.

• Decision Date: 17 June 2008
• Docket Number: No. COA07-856.,COA07-856.
• Citation: 661 S.E.2d 759
• Parties: STATE of North Carolina v. Ricky Kyle CORBETT.
• Court: North Carolina Court of Appeals

661 S.E.2d 759

STATE of North Carolina v. Ricky Kyle CORBETT.

No. COA07-856.

Court of Appeals of North Carolina.

June 17, 2008.

Appeal by defendant from judgment entered 2 April 2007 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 2 April 2008.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Kathryne E. Hathcock, for the State.

Brock, Payne & Meece, P.A., Durham, by C. Scott Holmes, for defendant-appellant.

HUNTER, Judge.

Ricky Kyle Corbett ("defendant") appeals from a guilty plea of felony habitual driving while intoxicated ("DWI"). The superior court made findings of mitigation and sentenced defendant to a term of thirteen months to sixteen months in prison. After careful consideration, defendant's appeal is dismissed.

Defendant was charged with misdemeanor driving while impaired ("misdemeanor DWI") by a uniform citation issued on 7 January 2006 in Alamance County. The citation instructed defendant to appear in district court to face the charge in the citation. Meanwhile, a grand jury indicted defendant in superior court on 5 September 2006 for misdemeanor DWI and felony habitual driving while impaired ("felony habitual DWI") (case number 06CRS050232). Both charges stemmed from the same incident on 7 January 2006 for which defendant was originally cited. The grand jury issued a superseding indictment for the same two offenses on 25 September 2006. Defendant's case was placed on an administrative calendar for hearing in superior court on 11 December 2006.

Defendant's misdemeanor DWI citation in case number 06CRS050233, however, was not dismissed from district court following defendant's indictment in superior court. While defendant's case was pending in superior court, defendant pled guilty in district court on 27 November 2006 to the misdemeanor DWI offense in case number 06CRS050233. The district court continued the case for sentencing until 27 December 2006. Following defendant's guilty plea in district court, the State dismissed the felony habitual DWI charge in superior court case number 06CRS050232, because the citation had been inadvertently left in district court and defendant had already pled guilty in district court to the underlying misdemeanor DWI offense.

At defendant's 27 December 2006 sentencing hearing in district court, the State moved to strike defendant's previously entered guilty plea in case number 06CRS050233. The district court issued an order on 29 December 2006 concluding that because defendant had been indicted for the misdemeanor and felony DWI offenses in superior court on 5 September 2006, the district court lacked jurisdiction to take defendant's guilty plea on 27 November 2006. Therefore, the district court struck defendant's 27 November 2006 guilty plea to the misdemeanor DWI charge as void ab initio. Defendant was never sentenced for the misdemeanor DWI offense in district court.

After defendant's original guilty plea in district court was stricken, a grand jury issued another superseding indictment in superior court for misdemeanor DWI and felony habitual DWI (case number 07CRS000184) on 2 January 2007. Defendant moved to dismiss the new charges in superior court on the grounds of double jeopardy, claiming that his prior guilty plea to the misdemeanor DWI offense in district court precluded the State from (1) charging him with the same misdemeanor DWI offense in superior court, and (2) using the misdemeanor DWI offense charged in superior court as a predicate offense for the felony habitual DWI charge. Defendant's case was heard in superior court on 2 April 2007, and the superior court denied defendant's motion to dismiss. Defendant then pled guilty to the felony habitual DWI charge in exchange for the State dismissing the misdemeanor DWI charge.

Defendant presents one issue for this Court's review: Whether the superior court erroneously failed to dismiss the charges against him on the basis of double jeopardy, in violation of both the United States Constitution and the North Carolina Constitution.

The State filed a motion to dismiss defendant's appeal on 24 October 2007. The State contends that defendant has no statutory right to appeal his conviction and that defendant has waived appellate review of his double jeopardy argument.

We must first determine whether defendant, by pleading guilty, has waived review of the issues he presented to this Court.

A defendant's right to appeal a conviction is "purely statutory." State v. Shoff, 118 N.C.App. 724, 725, 456 S.E.2d 875, 876 (1995). "[U]nder N.C.G.S. § 15A-1444(e), a defendant who has entered a plea of guilty is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant has made an unsuccessful motion to withdraw the guilty plea." State v. Pimental, 153 N.C.App. 69, 73, 568 S.E.2d 867, 870 (2002) (citing State v. Dickson, 151 N.C.App. 136, 564 S.E.2d 640 (2002)).

The State contends that under State v. Hopkins, 279 N.C. 473, 183 S.E.2d 657 (1971), defendant has no right to an appeal. We agree.

In Hopkins, the defendant was indicted in superior court for first degree burglary, which was later reduced to nonfelonious breaking and entering. The defendant moved to dismiss the charge on double jeopardy grounds, but the trial court denied the defendant's motion. Id. at 473-74, 183 S.E.2d at 657. The defendant then pled guilty to nonfelonious breaking and entering and appealed his conviction based on the denial of his plea of former jeopardy. Id. at 474, 183 S.E.2d at 658. The Supreme Court of North Carolina held that the defendant had waived his right to appeal this issue:

The constitutional right not to be placed in jeopardy twice for the same offense, like other constitutional rights, may be waived by the defendant and such waiver is usually implied from his action or inaction when brought to trial in the subsequent proceeding. . . .

The present defendant . . . entered a pleas of guilty . . . after his previously entered plea of former jeopardy was overruled. He . . . thereby waived his right, if any, to dismissal of the charge on the ground of former jeopardy[.]

Id. at 475-76, 183 S.E.2d at 659.

Defendant, however, argues that Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), controls. The defendant in Menna was indicted in New York state court for refusing to testify before a grand jury. Id. at 61, 96 S.Ct. at 242, 46 L.Ed.2d at 197. The defendant sought dismissal of the case on double jeopardy grounds, claiming that he had previously been adjudicated in contempt of court for refusing to testify on the same occasion. Id. The trial court denied the defendant's motion, and the defendant pled guilty to the indictment. Id. Rather than attacking his guilty plea in a collateral action, the Menna defendant immediately appealed his conviction on double jeopardy grounds. Id. at 62, 96 S.Ct. at 242, 46 L.Ed.2d at 197. The New York Court of Appeals held that the defendant had waived appellate review of his double jeopardy claim by entering a counseled guilty plea. Id.

The United States Supreme Court reversed the New York court. The Court held that "[w]here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty." Id. at 62, 96 S.Ct. at 242, 46 L.Ed.2d at 197. In a footnote, the Court clarified its holding: "We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute." Id. at 63 n. 2, 96 S.Ct. at 242 n. 2, 46 L.Ed.2d at 198 n. 2.

Although Menna and Hopkins appear to be in conflict with one another, we are bound by the Supreme Court of North Carolina's decision on this issue until otherwise instructed. Cannon v. Miller, 313 N.C. 324, 324, 327 S.E.2d 888, 888 (1985) (holding that the Court of Appeals, after abolishing two tort causes of actions, "acted under a misapprehension of its authority to overrule decisions of the Supreme Court of North Carolina and its responsibility to follow those decisions, until otherwise ordered by the Supreme Court"); State v. Parker, 140 N.C.App. 169, 172, 539 S.E.2d 656, 659 (2000) (where the defendant asked the Court of Appeals to review a statute in light of a recent United States Supreme Court decision, the Court of Appeals noted that the Supreme Court of North Carolina had already addressed an analogous issue in light of the recent federal case, and therefore the Court of Appeals was bound by the Supreme Court of North Carolina's decision). Moreover, this Court has previously followed the Hopkins Court's decision in State v. Hughes, 136 N.C.App. 92, 97, 524 S.E.2d 63, 66 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000), superseded by statute on other grounds, N.C. Gen.Stat. § 15A-1340.34 (2007), and we are therefore also bound by the decisions of this Court as well. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("[w]here 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, unless it has been overturned by a higher court").

Defendant's appeal is therefore dismissed. Defendant may, however, file a motion for appropriate relief with the superior court pursuant to N.C. Gen.Stat. § 15A-1413 (2007). See State v. Jamerson, 161 N.C.App. 527, 530, 588 S.E.2d 545, 547 (2003).

Dismissed.

Judge STROUD concurs.

Judge ELMORE dissents in a separate opinion.

ELMORE, Judge, dissenting.

I respectfully dissent from the majority opinion dismissing defendant's appeal. Because I believe that this...