State v. Daw

• Decision Date: 04 May 2021
• Docket Number: No. COA20-680,COA20-680
• Citation: 860 S.E.2d 1
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Philip Brandon DAW, Defendant.

860 S.E.2d 1

STATE of North Carolina

v.Philip Brandon DAW, Defendant.

No. COA20-680

Court of Appeals of North Carolina.

Filed May 4, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

Tin Fulton Walker & Owen, PLLC, by Jim Melo, and Goodman, Carr, Laughrun, Levine & Green, Charlotte, by W. Rob Heroy, for the Petitioner.

Erwin Byrd, for Amicus Curiae North Carolina Advocates for Justice.

JACKSON, Judge.

¶ 1 Under review is the trial court's summary denial of a petition for habeas corpus. Phillip Brandon Daw ("Petitioner") alleges in his petition for habeas corpus that under N.C. Gen. Stat. § 17-33(2), because of an "act, omission or event, which has taken place after[ ] [his imprisonment], [ ] [he] has become entitled to be discharged." N.C. Gen. Stat. § 17-33(2) (2019). While there is no appeal of right from the denial of a petition for habeas corpus, Chavez v. McFadden , 374 N.C. 458, 470, 843 S.E.2d 139, 148 (2020), we granted a petition for certiorari filed by Petitioner to review the trial court's order. After careful review, we affirm the order of the trial court.

I. Background

¶ 2 On 1 May 2019, a Lenoir County grand jury indicted Petitioner with three felony counts of obtaining property by false pretenses. Petitioner pleaded not guilty to these charges. A jury convicted him of all three counts on 24 September 2019 in Lenoir County Superior Court. The trial court sentenced Petitioner to seven to 18 months in prison for each count and ordered that the sentences run consecutively.

¶ 3 Petitioner was then indicted again on two felony counts of obtaining property by false pretenses on 22 October 2018. On 26 November 2018, he was indicted on another felony count of obtaining property by false pretenses. On 10 December 2018, he was indicted on yet another felony count of obtaining property by false pretenses. He pleaded guilty to these new charges and was sentenced to six to 17 months in prison for the three counts from the October and December indictments, with the sentence to run concurrently with his sentence for the three charges of which he was convicted by the Lenoir County jury. Petitioner was sentenced to another concurrent sentence of eight to 19 months for the count from the November indictment.

¶ 4 In March of 2020, the World Health Organization declared that the spread of the novel coronavirus known as COVID-19 had reached pandemic proportions.¹ In what would be the first of many executive orders related to COVID-19, our Governor declared a state of emergency, taking numerous steps to coordinate a governmental response and limit the spread of the virus. See Exec. Order No. 116 (2020). As the first recital of that executive order states, "COVID-19 is a respiratory disease that can result in serious illness or death by the SARS-CoV-2 virus, ... a new strain of coronavirus[.]" Id.

¶ 5 Petitioner was serving his sentence in prison at that time. In the earlier part of the month, he was serving his sentence at the Craven Correctional Institution, in Craven County, North Carolina. He was then transferred to Harnett Correctional Institution in Harnett County on 24 March 2020.

¶ 6 The North Carolina Department of Public Safety ("DPS") is the agency that administers prisons in our state. See N.C. Gen. Stat. § 148-4 (2019). The principal executive officer of that agency is the Secretary. See id. Under N.C. Gen. Stat. § 148-4, the Secretary of DPS is authorized to "extend the limits of the place of confinement of a prisoner, ... [to] [p]articipate in community-based programs of rehabilitation, ... and other programs determined by the Secretary ... to be consistent with the prisoner's rehabilitation and return to society[.]" Id. On 13 April 2020, the Secretary of DPS announced that he was invoking this statutory authority to "extend the limits of confinement [ ] of incarcerated persons[,] allowing certain individuals to continue serving their sentence outside of a DPS prison facility, but under the supervision of community correction officers."

¶ 7 By the summer of 2020, the pandemic had worsened.² News of it had also become more widespread.³ On 15 June 2020, Petitioner filed a petition for habeas corpus in Wake County Superior Court alleging that his continued imprisonment during the pandemic violated the guarantee against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and the guarantee against cruel or unusual punishment in Article 1, § 27 of the North Carolina Constitution. The trial court summarily denied the petition the same day.

¶ 8 Petitioner filed a petition for a writ of certiorari to review the trial court's summary denial of his petition for habeas corpus on 16 June 2020. It was granted by our Court on 9 July 2020. Petitioner then filed a motion for a peremptory setting of the case on 16 December 2020. That motion was also granted by our Court on 17 December 2020.

¶ 9 As noted above, oral argument in this case was heard on 9 February 2021. Six days later, Petitioner was released from prison.⁴ He is now serving the remainder of his sentence outside of prison under the Extended Limits of Confinement Program instituted by DPS due to COVID-19.

II. Jurisdiction

¶ 10 Our Supreme Court has held that "[p]roceedings in habeas corpus , the object of which is to release a person from illegal restraint, must necessarily be summary to be useful, and if action could be arrested by an appeal upon the part of the State, the great writ of liberty would be deprived of its most beneficial results." In re Williams , 149 N.C. 436, 437, 63 S.E. 108, 109 (1908). Thus, while "no appeal as of right lies from an order entered in a habeas corpus proceeding, appellate review of such orders is available ‘by petition for certiorari addressed to the sound discretion of the appropriate appellate court.’ " Chavez , 374 N.C. at 470, 843 S.E.2d at 148 (quoting State v. Niccum , 293 N.C. 276, 278, 238 S.E.2d 141, 143 (1977) ). "Such a petition should be filed with the clerk of the appellate court to which an appeal of right might have been taken from the judgment imposing the sentence which is the subject of inquiry in the habeas corpus proceeding." Niccum , 293 N.C. at 278, 238 S.E.2d at 143. In capital cases, the appropriate appellate court is the Supreme Court. N.C. R. App. P. 21(e). "In all other cases such petitions shall be filed in and determined by the Court of Appeals[.]" Id.

¶ 11 As noted above, Petitioner filed his petition for habeas corpus in Wake County Superior Court on 15 June 2020 and the trial court denied it the same day. The next day, Petitioner filed a petition for writ of certiorari with our Court requesting review of the trial court's denial of his petition for habeas corpus. We granted the petition for certiorari. The trial court's order summarily denying the petition for habeas corpus is therefore properly before us.

III. Mootness

¶ 12 Petitioner has been released from prison and is now serving the remainder of his sentence in the community. Petitioner has therefore received the relief requested in his petition and this case is moot.

¶ 13 Generally speaking,

North Carolina appellate courts do not decide moot cases. A case is "moot" when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. In state courts the exclusion of moot questions from determination is not based on a lack of jurisdiction but rather represents a form of judicial restraint. Our purpose in exercising such restraint is to ensure that this Court does not determine matters purely speculative, enter anticipatory judgments, declare social status, deal with theoretical problems, give advisory opinions, answer moot questions, adjudicate academic matters, provide for contingencies which may hereafter arise, or give abstract opinions. As a general proposition, cases that have become moot should be dismissed.

Chavez , 374 N.C. at 467, 843 S.E.2d at 146-47 (internal marks and citation omitted).

¶ 14 However, " ‘[t]he mootness doctrine is subject to exceptions, including the public interest exception, ... and the ‘capable of repetition, yet evading review’ exception[.]’ " Id., 843 S.E.2d at 147. "Under the ‘public interest’ exception to mootness, an appellate court may consider a case, even if technically moot, if it involves a matter of public interest, is of general importance, and deserves prompt resolution." Chavez v. Carmichael , 262 N.C. App. 196, 203, 822 S.E.2d 131, 137 (2018) (" Carmichael ") (internal marks and citation omitted), vacated and reversed in part on other grounds sub nom. Chavez v. McFadden , 374 N.C. 458, 843 S.E.2d 139 (2020). "Our appellate courts have previously applied the ‘public interest’ exception to otherwise moot cases of clear and far-reaching significance, for members of the public beyond just the parties in the immediate case." Id. at 203-04, 822 S.E.2d at 137 (citation omitted).

¶ 15 On the other hand,

[a] case is "capable of repetition, yet evading review," when the underlying conduct upon which the relevant claim rests is necessarily of such limited duration that the relevant claim cannot be fully litigated prior to its cessation and the same complaining party is likely to be subject to the same allegedly unlawful action in the future.

Chavez , 374 N.C. at 467-68, 843 S.E.2d at 147 (citation omitted). In the habeas context, "the ‘capable of repetition, yet evading review’ exception to the mootness doctrine is technically not available in ... the absence of any indication that [the] petitioner[ ] [is] likely to find themselves in the same situation ... in the future[.]" Id. at 468-69, 843 S.E.2d at 147-48, 374 N.C. 458.

¶ 16 At oral argument, counsel for Petitioner argued that the public interest exception to the mootness doctrine should apply in this case, if Petitioner were to be released from prison after oral argument but before we were able to issue an...