State v. Green
| Decision Date | 01 November 2022 |
| Docket Number | COA22-148 |
| Parties | STATE of North Carolina v. Eugene GREEN |
| Court | North Carolina Court of Appeals |
¶ 1 Defendant Eugene Green appeals from a judgment entered upon a jury's verdicts finding him guilty of felony operating a motor vehicle while fleeing and attempting to elude arrest and attaining the status of habitual felon. After careful review, we affirm the trial court's judgment, but remand for correction of a clerical error.
¶ 2 On 14 May 2018, a Rowan County grand jury returned indictments charging Defendant with felony operating a motor vehicle while fleeing and attempting to elude arrest and attaining the status of habitual felon. On 19 April 2021, the matter came on for jury trial in Rowan County Superior Court. Defendant was present in the courtroom when the proceedings began, and the parties discussed trial logistics. The jury was impaneled and the trial court announced that trial would resume at 9:30 the next morning. The court then recessed for the day.
¶ 3 Defendant was not present in court the next day when the trial resumed. The trial court recessed for approximately 30 minutes, during which time the bailiff and defense counsel unsuccessfully sought to locate Defendant. When a bailiff telephoned Defendant at the number that had previously been used to contact Defendant, the bailiff found that the phone was "turned off."
¶ 4 The State requested that the trial proceed in absentia. When asked if he wished to be heard in response to this request, defense counsel succinctly stated: "The jury has been impaneled."
¶ 5 The trial court made extensive findings of fact regarding Defendant's absence before concluding:
At this point it is apparent that ... Defendant, at least as of now, has no desire to attend his trial. The Court can only conclude that Defendant ... has voluntarily chosen not to be here based on the facts previously laid out and has waived his absolute right to be present at his trial, and this trial will proceed in ... Defendant's absence.
Defense counsel did not object to the trial court's findings or conclusion.
¶ 6 The trial proceeded in absentia , and at the conclusion of the first phase of the trial the jury returned a verdict finding Defendant guilty of the charge of felony operating a motor vehicle while fleeing and attempting to elude arrest. After the jury returned this verdict, the trial moved to the habitual felon phase.
¶ 7 Outside the presence of the jury, the trial court permitted counsel "to be heard with regard to the issue of proceeding with the second phase of the trial, the habitual felon phase[.]" Counsel for both the State and Defendant agreed to proceed in absentia. After briefly discussing this Court's opinion in State v. Davis , 186 N.C. App. 242, 650 S.E.2d 612, disc. review dismissed , 362 N.C. 89, 656 S.E.2d 280 (2007), the court questioned defense counsel concerning Defendant's awareness of the habitual felon portion of these proceedings:
¶ 8 The trial court made thorough findings of fact in support of its decision to proceed in absentia to the habitual felon phase:
The trial court then issued an order for Defendant's arrest.
¶ 9 At the conclusion of the habitual felon phase, the jury returned its verdict finding Defendant guilty of having attained the status of habitual felon. The trial court announced at the conclusion of the trial that "[a] sentencing hearing will be conducted as soon as ... practicable upon his arrest" and retained jurisdiction. Defendant was subsequently arrested and the sentencing hearing was held on 10 August 2021. The trial court sentenced Defendant to a term of 80 to 108 months’ imprisonment in the custody of the North Carolina Division of Adult Correction.
¶ 10 On 12 August 2021, Defendant filed a pro se notice of appeal, stating: The next day, Defendant filed another pro se notice of appeal, stating: Defendant added that he wanted his notice of appeal forwarded to the District Attorney's office and the Clerk of Court and that he wanted an "appeal filed for my sentence 8/10[.]" The record indicates that Defendant's notice was so forwarded.
¶ 11 On 1 September 2021, defense counsel filed a handwritten notice of appeal, identifying the case by name and stating simply: "Defendant hereby enters notice of appeal." Two days later, defense counsel appeared in open court to ensure that appellate entries were entered and the Appellate Defender's office appointed to represent Defendant on appeal.
¶ 12 Simultaneous with his brief on appeal, Defendant filed with this Court a petition for writ of certiorari in case this Court determined that his various notices of appeal were insufficient to invoke our appellate jurisdiction. In his petition, Defendant acknowledges that both of his pro se notices "fail to specify the court to which the appeal is taken, and they are not signed by [his] counsel of record." See N.C.R. App. P. 4(b). Further, Defendant acknowledges that the handwritten notice of appeal filed by his trial counsel "was not timely filed, does not specify the judgment taken from or the court appealed to, and does not indicate whether it was served on the District Attorney." See id. 4(b)–(c).
¶ 13 Nonetheless, "a defect in a notice of appeal should not result in loss of the appeal as long as the intent to appeal can be fairly inferred from the notice and the appellee is not misled by the mistake." State v. Springle , 244 N.C. App. 760, 763, 781 S.E.2d 518, 521 (2016) (citation and internal quotation marks omitted). This Court has also specifically held that "a defendant's failure to designate this Court in a notice of appeal does not warrant dismissal of the appeal where this Court is the only court possessing jurisdiction to hear the matter and the State has not suggested that it was misled by the defendant's flawed notice of appeal." State v. Sitosky , 238 N.C. App. 558, 560, 767 S.E.2d 623, 624 (2014), supersedeas and disc. review denied , 368 N.C. 237, 768 S.E.2d 847 (2015).
¶ 14 Here, Defendant's pro se notices of appeal plainly indicate his intent to appeal the habitual felon conviction, and this Court is the only court with jurisdiction to hear Defendant's appeal. See N.C. Gen. Stat. § 7A-27(b)(1) (2021). Therefore, Defendant's "intent to appeal can be fairly inferred" from his pro se notices of appeal. Springle , 244 N.C. App. at 763, 781 S.E.2d at 521 (citation omitted). Moreover, as in Sitosky , the State does not assert that it was misled by the notice of appeal or prejudiced by the failure to be properly served with the notice when it was filed. 238 N.C. App. at 561, 767 S.E.2d at 625. Accordingly, these defects do not deprive this Court of appellate jurisdiction and we dismiss Defendant's petition for a writ of certiorari as moot.
¶ 15 Defendant argues that trial court erred by trying him in absentia on the habitual felon charge (1) in violation of his statutory right to notice of the charge and (2) in violation of his constitutional right to be present at trial, which he did not knowingly and intentionally waive. Defendant also argues that his "habitual felon sentence violates separation of powers, his right to equal protection, and his right to be free from cruel and unusual punishment." Lastly, Defendant argues that the judgment contains a clerical error. We agree that the judgment contains a clerical error, but otherwise...
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