State v. Gantt, 051920 NCCA, COA19-995

Docket Nº:COA19-995
Opinion Judge:BERGER, JUDGE.
Party Name:STATE OF NORTH CAROLINA v. DAVID JOHN GANTT, Defendant.
Attorney:Attorney General Joshua H. Stein, by Associate Attorney General Elizabeth B. Jenkins, for the State. Reece & Reece, by Mary McCullers Reece, for defendant-appellant.
Judge Panel:Judge TYSON concurs. Judge COLLINS COLLINS, Judge,
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

DAVID JOHN GANTT, Defendant.

No. COA19-995

Court of Appeals of North Carolina

May 19, 2020

Heard in the Court of Appeals 15 April 2020.

Appeal by defendant from judgments entered 24 June 2019 by Judge Peter B. Knight in Henderson County Superior Court. Nos. 17 CRS 054550, 17 CRS 054551

Attorney General Joshua H. Stein, by Associate Attorney General Elizabeth B. Jenkins, for the State.

Reece & Reece, by Mary McCullers Reece, for defendant-appellant.

BERGER, JUDGE.

On January 30, 2018, David John Gantt ("Defendant") was placed on supervised probation for felony breaking or entering and larceny after breaking or entering. Defendant's probation was revoked and his suspended sentence was activated on June 24, 2019, after he admitted that he willfully violated the terms and conditions of his probation, including an allegation that he absconded. Defendant appeals from judgments upon revocation of his probation. However, Defendant concedes his notice of appeal was defective. In the exercise of our discretion, we deny his petition for writ of certiorari and dismiss his appeal.

Factual and Procedural Background

On January 30, 2018, Defendant pleaded guilty to felony breaking or entering and felony larceny after breaking or entering. The trial court sentenced Defendant to two consecutive 8- to 19-month prison terms, suspended both sentences, and placed Defendant on supervised probation for 24 months. Probation violations were filed for Defendant's failure to comply with the terms and conditions of his probation on March 12 and July 13, 2018 (the "Violation Reports"). The Violation Reports alleged that Defendant possessed drugs, possessed a firearm, possessed a stolen firearm, missed an office visit, was charged with defrauding a drug screen, was charged with possession of methamphetamine, had an outstanding warrant for possession of a stolen vehicle, and absconded.1

On June 24, 2019, the trial court conducted a hearing on the Violation Reports. Defendant admitted that he had willfully violated the terms and conditions of his probation as set forth in the reports, and he also informed the trial court that he had been convicted of a criminal offense. In addition, defense counsel stated to the trial court, "my recommendation is to terminate, . . . [a]nd I believe that's by agreement with probation." Defendant specifically admitted to absconding and conviction of a new criminal offense in 17 CRS 54551.

At the conclusion of the hearing, the trial court announced Defendant's probation was revoked. In the written judgment for File Number 17 CRS 54550, the trial court found Defendant had willfully violated the terms and conditions of his probation by absconding, missing and office visit, and possession of marijuana and drug paraphernalia. In the written judgment revoking Defendant's probation in 17 CRS 54551, the trial court found Defendant had willfully violated the terms of his probation as set forth in paragraph 1 of the July 13, 2018 Violation Report.

Defendant filed a pro se purported written notice of appeal. Defendant argues on appeal that the trial court erred by revoking his probation in 17 CRS 54551 for a violation of which he had no notice or, in the alternative, for a violation that was not revocable. However, Defendant's notice of appeal failed to comply with N.C. R. App. P. 4 in that the notice did not (1) designate the judgment from which he was appealing, (2) designate the court to which he was appealing, and (3) properly certify service. Defendant concedes that he neither designated the judgment or judgments from which he was appealing nor the court to which he was appealing, and he had failed to attach a certificate of service.

The defects in Defendant's notice deprive this Court of jurisdiction over his direct appeal. State v. Hughes, 210 N.C.App. 482, 484, 707 S.E.2d 777, 778 (2011); see also State v. McMillian, 101 N.C.App. 425, 427, 399 S.E.2d 410, 411 (1991). Therefore, Defendant's appeal is dismissed.

Analysis

The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to N.C. G.S. § 15A-1422(c)(3) of an order of the trial court ruling on a motion for appropriate relief.

N.C. R. App. P. 21(a)(1) (2019).

"A petition for the writ must show merit or that error was probably committed below. Certiorari is a discretionary writ, to be issued only for good and sufficient cause shown." State v. Killette, ___ N.C.App. ___, ___, 834 S.E.2d 696, 698 (2019) (citation and quotation marks omitted). Petitioner must also demonstrate "that the ends of justice will be . . . promoted." King v. Taylor, 188 N.C. 450, 451, 124 S.E. 751, 751 (1924). In addition, the decision of "[w]hether to allow a petition and issue the writ of certiorari is not a matter of right and rests within the discretion of this Court." State v. Biddix, 244 N.C.App. 482, 486, 780 S.E.2d 863, 866 (2015) (citation omitted).

Defendant's probation was revoked and his suspended sentence activated for absconding and possession of drug paraphernalia. These are regular conditions of probation. See N.C. Gen. Stat. § 15A-1343(b) (2019); see also N.C. Gen. Stat. § 15A-1344(a) (2019) ("The court may only revoke probation for a violation of a condition of probation under G.S. 15A-1343(b)(1) [new criminal offense] or G.S. 15A-1343(b)(3a) [abscond by willfully avoiding supervision]").

Defendant admitted in open court that he was in willful violation of these regular conditions. Defendant has failed to demonstrate that the ends of justice would be promoted by allowing the petition and issuing the writ. In the exercise of our discretion, we deny Defendant's petition for writ of certiorari.

Conclusion

For the reasons stated herein, Defendant's petition for writ of certiorari is denied and his appeal is dismissed.

DENIED IN PART AND DISMISSED.

Judge TYSON concurs.

Judge COLLINS dissents in separate opinion.

COLLINS, Judge, concurring in part and dissenting in part.

I concur in the majority opinion to deny Defendant's petition for writ of certiorari in 17 CRS 054550 and to dismiss his appeal in that case. However, where Defendant's probation in 17 CRS 054551 was revoked for absconding-a violation not alleged in the probation violation report-I respectfully dissent from the remainder of the majority opinion that leads to its conclusion to deny Defendant's petition for writ of certiorari in 17 CRS 054551 and to dismiss his appeal in that case.

I. Factual Background

Although the majority opinion includes a recitation of the facts, I include a recitation of the facts as well.

On 30 January 2018, Defendant pled guilty in district court to felony breaking and entering in 17 CR 54550, and felony larceny after breaking and entering in 17 CR 54551.2 The trial court sentenced Defendant to two consecutive 8-19 month prison terms, suspended both sentences, and placed Defendant on 24 months' supervised probation.

On 12 March 2018, Defendant's probation officer filed a probation violation report in superior court in 17 CRS 054551 ("March report"). The March report alleged the following probation violations: 1. "Report as directed by the Court, Commission or the supervising officer to the officer at reasonable times and places . . ." in that OFFENDER FAILED TO REPORT FOR OFFICE VISIT ON 3/7/2018.

2. Condition of Probation "Not possess contraband or stolen goods" in that DURING WARRANTLESS SEARCH OFFENDER WAS FOUND TO HAVE STOLEN PROPERTY IN HIS POSSESSION INCLUDING A STOLEN FIREARM. PROPERTY WAS SEIZED BY HENDERSON COUNTY SHERIFFS DEPARTMENT

3. Condition of Probation "Possess no firearm, explosive device or other deadly weapon" in that [] OFFENDER WAS FOUND TO BE IN POSSESSION OF RIFLE/FIREARM DURING SEARCH OF HIS RESIDENCE ON 3/9/2018. RIFLE WAS TAKEN AS EVIDENCE BY HENDERSON COUNTY...

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