State v. Jones

• Decision Date: 06 June 2017
• Docket Number: No. COA16-1280,COA16-1280
• Citation: 253 N.C.App. 789,802 S.E.2d 518
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, Plaintiff, v. Angelo Lindovis JONES, Defendant.

253 N.C.App. 789

802 S.E.2d 518

STATE of North Carolina, Plaintiff,

v.Angelo Lindovis JONES, Defendant.

No. COA16-1280

Court of Appeals of North Carolina.

Filed: June 6, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer, for the State.

Cheshire Parker Schneider & Bryan, PLLC, Raleigh, by John Keating Wiles, for defendant-appellant.

ZACHARY, Judge.

Angelo Lindovis Jones (defendant) appeals from a judgment entered upon his plea of guilty to attempted robbery with a dangerous weapon. Defendant has filed a petition for issuance of a writ of certiorari to obtain review of the sentencing proceeding, and we elect to grant his petition. On appeal, defendant argues that he is entitled to a new sentencing hearing, on the grounds that his counsel informed the trial court that defendant wanted to address the court before it imposed judgment, but the trial court denied him the opportunity to speak. We agree, and conclude that the judgment must be vacated and remanded for a new sentencing hearing.

I. Factual and Procedural Background

On 27 November 2013, a warrant was issued for defendant's arrest, charging him with having committed the offenses of first-degree murder, first-degree burglary, and armed robbery almost three years earlier, on 4 January 2011. Defendant was indicted for these offenses on 7 July 2014. On 30 March 2016, defendant pleaded guilty to attempted armed robbery, pursuant to a plea agreement. The terms of the plea arrangement were that defendant would plead guilty to the charge of attempted armed robbery and would provide truthful testimony against his codefendants if requested to do so by the State; in exchange, the State would dismiss the charges of first-degree murder and first-degree burglary. The plea bargain did not include any agreement on the sentence that defendant would receive. Defendant's sentencing was continued until 22 August 2016.

On 23 August 2016, defendant appeared before the trial court for sentencing. The sentencing hearing is discussed in greater detail below. Briefly, at the outset of the hearing, defendant's counsel informed the court that counsel would argue on defendant's behalf and that defendant wished to "address the Court at the appropriate time," to which the trial court agreed. Thereafter, defendant's counsel advised the court of aspects of defendant's personal history that might be pertinent to the court's sentencing decision. Defense counsel also presented testimony from a lead investigator of the underlying offenses, who spoke on defendant's behalf about the assistance that defendant had provided, which had enabled law enforcement officers to solve the case. After the detective finished, the trial court announced that it was "ready to give the judgment" and entered judgment without allowing defendant to address the court. Defendant was sentenced to a term of 128 to 163 months’ imprisonment and was given credit for 1001 days that he had spent in confinement awaiting trial.

On 24 August 2016, defendant sent the following handwritten letter to the Clerk of Court:

August 24, 2016

To the Clerk of Court, Superior

I was sentence[d] August 23 2016 in Superior Court by [the trial court], to serve 128 months to 163.

I would like to put the court on notice that I am appealing the sentencing part of the sentence, not the guilty plea. I would like to site [sic] that [the court] was rude, bias, and personal in his rulings.

My lawyer Anna Kirby, the Assist. D.A. Joel Stadiem, and lead Detective Kearney, all wanted to speak on my behalf. But [the judge] did not allow anyone to be heard to where it wouldn't make a differen[ce].

I also wanted to address the courts but wasn't given a chance. I really feel like my constitutional rights [were] violated for not allowing my attorney or myself, or people on my behalf to stand and address the court.

I feel that I should have been sentenced in the mitigated range instead of the presumptive. Angelo Jones

Appellate counsel was appointed for defendant on 2 September 2016. On 19 January 2017, defendant's appellate counsel filed a petition in which counsel (1) acknowledged that defendant's pro se letter to the Clerk of Court stating his intention to "put the Court on notice" of his appeal did not comply with the relevant rules of appellate procedure, and (2) sought issuance of a writ of certiorari in order to obtain review. On 15 February 2017, the State filed a response opposing the issuance of the writ, and a motion to dismiss defendant's appeal. Defendant filed a reply to the State's motions on 24 February 2017.

II. Defendant's Right to Seek Review by Writ of Certiorari

Preliminarily, we address defendant's right to seek the issuance of a writ of certiorari in order to obtain appellate review of the sentencing proceeding conducted upon his entry of a plea of guilty to the charge of attempted armed robbery. We conclude that this Court has the authority to grant defendant's petition asking us to issue a writ of certiorari, and we grant his petition.

A criminal defendant's right to appeal following his plea of guilty is limited by N.C. Gen. Stat. § 15A-1444 (2015), which provides in relevant part that:

(a1) A defendant who has ... entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the ... sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range[.] ... Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.

(a2) A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed: (1) Results from an incorrect finding of the defendant's prior record level[.] ...; (2) Contains a type of sentence disposition that is not authorized ... or; (3) Contains a term of imprisonment that is for a duration not authorized[.] ...

... (e) Except as provided in subsections (a1) and (a2) of this section ... the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari....

...

(g) Review by writ of certiorari is available when provided for by this Chapter, by other rules of law, or by rule of the appellate division.

Thus, Gen. Stat. § 15A-1444(e) explicitly grants defendant the right to "petition the appellate division for review by writ of certiorari."

We next consider our jurisdiction to issue a writ of certiorari in order to review a defendant's appeal following entry of a plea of guilty. "The jurisdiction of the Court of Appeals is established in the North Carolina Constitution: ‘The Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.’ N.C. Const. art. IV, § 12 (2)." State v. Stubbs , 368 N.C. 40, 42, 770 S.E.2d 74, 75 (2015). By enacting N.C. Gen. Stat. § 7A-32(c) (2015), our General Assembly expressly granted the Court of Appeals jurisdiction to issue a writ of certiorari:

(c) The Court of Appeals has jurisdiction, exercisable by one judge or by such number of judges as the Supreme Court may by rule provide, to issue the prerogative writs, including mandamus, prohibition, certiorari, and supersedeas, in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts of the General Court of Justice[.] ... The practice and procedure shall be as provided by statute or rule of the Supreme Court, or, in the absence of statute or rule, according to the practice and procedure of the common law.

In this case, although defendant's appeal does not raise any of the issues for which an appeal of right is afforded, N.C. Gen. Stat. § 15A-1444(e) allows him to seek review by petitioning for issuance of a writ of certiorari. "Accordingly, given that our state constitution authorizes the General Assembly to define the jurisdiction of the Court of Appeals, and given that the General Assembly has given that court broad powers ‘to supervise and control the proceedings of any of the trial courts of the General Court of Justice,’ id . § 7A-32(c)," Stubbs , 368 N.C. at 43, 770 S.E.2d at 76, and given that "the General Assembly has placed no limiting language in subsection 15A-[1444(e),]" id., we conclude that this Court has jurisdiction to grant defendant's petition for issuance of a writ of certiorari.

In reaching this conclusion, we are aware that N.C. R. App. P. 21(a)(1) (2015) of our Rules of Appellate Procedure provides that:

(a)(1) 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.

In this case, defendant's application for issuance of a writ of certiorari does not allege that his right to an appeal was lost by failure to take timely action, that he seeks to appeal from an interlocutory order, or that he is appealing from an order of the trial court ruling on a motion for appropriate relief. Thus, defendant's petition for a writ of certiorari, although authorized by N.C. Gen. Stat. § 15A-1444(e), is not based upon the criteria specified in Appellate Rule 21. However, our Supreme Court has addressed the tension between a statute that grants a right to seek review by certiorari and the apparent limitations that Appellate Rule 21 places on that right.

In Stubbs , the State sought review of a trial court's ruling that granted a defendant's motion...