State v. Gardner
| Decision Date | 15 January 2013 |
| Docket Number | No. COA12–564.,COA12–564. |
| Citation | 736 S.E.2d 826 |
| Parties | STATE of North Carolina v. Julie Patrice GARDNER. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
On writ of certiorari to review judgment and order of commitment entered 13 October 2011 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 25 October 2012.
Attorney General Roy Cooper, by Assistant Attorney General Christine A. Goebel, for the State.
Kimberly P. Hoppin for Defendant.
This appeal arises from charges against Defendant Julie Patrice Gardner (“Gardner”) for (i) Class 1 misdemeanor larceny; (ii) Class 2 misdemeanor resisting, delaying, or obstructing a law enforcement officer; (iii) Class H felony speeding to elude arrest; (iv) Class F assault with a deadly weapon on a government officer (“AWDWOGO”); (v) Class 1 misdemeanor driving while license revoked; (vi) Class 1 misdemeanor aggressive driving; and (vii) attaining the status of habitual felon.
On the afternoon of 28 August 2010, Officer J.D. Bumgarner (“Officer Bumgarner”) of the Statesville Police Department received a shoplifting-in-progress call, which described a white female and a black male leaving a Rugged Warehouse retail store in a green Ford Escort. Soon after, a green Escort passed Officer Bumgarner, who was on his way to another call. The driver, a white female, watched him as she passed. Officer Bumgarner then activated his lights and pursued her. In an attempt to escape, the Escort crossed into oncoming traffic and ran at least one red light. Officer Bumgarner caught up, and the Escort began to pass cars while in a no-passing zone. After a short time the Escort crossed left of the center line, turned onto a side street, and came to a stop. Officer Bumgarner followed and exited his car with gun drawn, instructing everyone to come out and lie down. The rear passenger exited, threw the keys down, and laid himself on the ground. The front passenger came out, but turned to reach for something in the car. Gardner came out, grabbed the keys, and returned to the Escort. The two passengers began to run away, and Officer Bumgarner struggled with Gardner to keep the keys out of the ignition. Officer Bumgarner's arm got stuck in the car, and Gardner began to drive away. The car pulled forward as Gardner accelerated, and Officer Bumgarner's arm was released without serious injury.
At that point, Officer Bumgarner began to pursue one of the other passengers on foot. He caught up with that individual and was able to identify Gardner with that person's help. Officer Bumgarner then made his way to the magistrate's office to take out warrants for Gardner's arrest. Before he was able to do so, another officer entered with Gardner in tow.
Gardner was tried in Iredell County Superior Court during the 12 October 2011 session. Pursuant to a plea agreement with the State, Gardner pled guilty to all of the offenses, as charged, in exchange for their consolidation for sentencing purposes. At sentencing, Gardner signed a prior record level worksheet indicating that she had a prior record level IV, with ten points, the minimum number required for a level IV.
Gardner's prior record level was calculated using three measures. The State presented a prior record level worksheet indicating that Gardner had two prior Class I felony convictions and four prior Class 1 misdemeanors, totaling eight points. Gardner also received one point for having committed the offenses while still on probation. Gardner received another point because the State's worksheet showed that she had a previous conviction for felony fleeing to elude arrest, one of the offenses she had also committed on 28 August 2010.
On 13 October 2011, the trial court consolidated all of the charges against Gardner under the Class F AWDWOGO offense and sentenced Gardner within the aggravated range as a Class C felon. As a consequence, the court sentenced Gardner to a minimum term of 120 months and a maximum term of 153 months in prison.
Gardner did not give notice of appeal at trial. On 17 October 2011, counsel for Gardner went to the Iredell County Clerk of Court and signed a form, which she incorrectly believed was “sufficient notice of appeal to preserve [Gardner's] right to appeal the judgments.” She was appointed an appellate defender and filed a petition for writ of certiorari on 18 June 2012. Gardner asks this Court to review the 13 October 2011 judgment and the concomitant calculation of Gardner's prior record level, despite her deficient notice of appeal. On 12 July 2012, the State filed a motion to dismiss.
In criminal cases, a party entitled to appeal a judgment must take appeal by either: (1) giving oral notice at trial; or (2) filing written notice with the clerk of superior court and, within fourteen days, serving copies of that notice on all adverse parties. N.C.R.App. P. 4(a). Written notice of appeal must specify the party or parties taking the appeal, designate the judgment or orders from which appeal is taken and the court to which appeal is taken, and be signed by counsel of record or a pro se defendant. N.C.R.App. P. 4(b).
Gardner filed an improper notice of appeal. Instead of complying with Rule 4, counsel for Gardner filled out a form used for appealing decisions from district court to superior court. As such, the notice failed to correctly designate the court to which appeal was taken. In addition, Gardner failed to serve notice of her appeal on the State. Accordingly, Gardner lost her right to appeal the trial court's judgment.
Given her failure to comply with Rule 4, Gardner requests that this Court grant her petition for certiorari and review the trial court's judgment and order of commitment. When a party has lost the right to appeal because of “failure to take timely action,” the writ of certiorari may be issued in appropriate circumstances by either appellate court. N.C.R.App. P. 21(a). The power to grant a writ of certiorari “is discretionary and may only be done in appropriate circumstances.” State v. Hammonds, ––– N.C.App. ––––, ––––, 720 S.E.2d 820, 823 (2012) (internal citations and quotation marks omitted).
In this case, Gardner's trial counsel attested that she received the form from the Iredell County Clerk of Court and believed it was “sufficient notice of appeal to preserve [Gardner's] right to appeal the judgments.” Although counsel for Gardner failed to serve notice of appeal on the State and failed to designate the court to which appeal was taken, this Court has generally granted certiorari under N.C.R.App. P. 21(a)(1) when a defendant has pled guilty, but lost the right to appeal the calculation of her prior record level through failure to give proper oral or written notice. See, e.g., State v. Mungo, ––– N.C.App. ––––, ––––, 713 S.E.2d 542, 545 (2011). We have also held that where a defendant has lost his right of appeal through no fault of his own, but rather as a result of the actions of counsel, failure to issue a writ of certiorari would be manifestly unjust. Hammonds, –––N.C.App. at ––––, 720 S.E.2d at 823.
We are persuaded that Gardner lost her right of appeal through no fault of her own, but rather because of an error on the part of trial counsel. Thus, we exercise our discretion and grant certiorari.
The State contends that Gardner is without the right to appeal the calculation of her prior record level because she stipulated to it. Since Gardner only raises this one issue on appeal, the State urges us to dismiss the entire case as moot.
Section 15A–1444(a2) of the North Carolina General Statutes provides that a defendant who has entered a guilty plea is entitled to appeal as a matter of right when there is a question as to whether the defendant's sentence resulted from an incorrect finding of her prior record level. N.C. Gen.Stat. § 15A–1444 (a2)(1) (2011). The State argues that subsection (a2) is not applicable here because Gardner stipulated to her prior record level, effectively mooting the question of its validity. In support of that assertion, the State cites an opinion of this Court from 1998, State v. Hamby, 129 N.C.App. 366, 499 S.E.2d 195 (1998).
In Hamby, the defendant pled guilty to assault with a deadly weapon inflicting serious injury. Id. at 367, 499 S.E.2d at 195. The defendant entered into a plea agreement, which stipulated that (1) she had a prior record level II, (2) the punishment for the offense could be either intermediate or active in the trial court's discretion, and (3) the trial court was authorized to sentence the defendant to between 29 and 44 months in prison. Id. at 367, 369, 499 S.E.2d at 195, 197. Relying on the terms of the agreement, the trial court sentenced the defendant to between 29 and 44 months in prison. Id. at 367, 499 S.E.2d at 195.
Interpreting subsection (a2), the Hamby Court pointed out that Id. at 369, 499 S.E.2d at 196. This Court determined in Hamby that the appeal of any defendant who “essentially stipulate[s] to matters that moot the issues he could have raised under subsection (a2)” should be dismissed. Id. Under that rule, we held that (1) the defendant had “mooted the issues of whether her prior record level was correctly determined” by admitting that her prior record level was II, (2) the offense could be either intermediate or active in the trial court's discretion, and (3) the court was authorized to sentence her to a maximum of 44 months in prison. Id. at 369–70, 499 S.E.2d at 197. Thus, we dismissed the defendant's appeal. Id. at 370, 499 S.E.2d at 197.
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