State v. Mangum

• Decision Date: 03 March 2020
• Docket Number: No. COA18-850,COA18-850
• Citation: 840 S.E.2d 862,270 N.C.App. 327
• Parties: STATE of North Carolina v. Billy Ray MANGUM, Jr., Defendant.
• Court: North Carolina Court of Appeals

270 N.C.App. 327

840 S.E.2d 862

STATE of North Carolina

v.Billy Ray MANGUM, Jr., Defendant.

No. COA18-850

Court of Appeals of North Carolina.

Filed: March 3, 2020

I. Procedural and Factual Background

Billy Ray Mangum, Jr. ("Defendant") was indicted on 5 March 2018 for possession of a stolen motor vehicle and attaining habitual felon status. Defendant pleaded guilty to the charges on 4 April 2018, and the trial court sentenced Defendant to twenty-four to forty-one months’ imprisonment. Following its oral rendering of Defendant's sentence, the trial court stated that "[c]ourt costs and attorney's fees are taxed against [Defendant] as a civil judgment." The trial court entered judgment ordering "all costs and attorney fees to be docketed as a civil judgment." The amount of costs and attorney's fees were not indicated in court or in the judgment. Defendant filed written notice of appeal on 10 April 2018.

Defendant's sole proposed issue on appeal is: "Did the trial court err by failing to give [ ] Defendant the opportunity to be heard on attorney's fees?" Defendant filed his appellate brief on 24 September 2018 in which, citing N.C.G.S. § 7A-27(b)(1) (2019) and State v. Pell , 211 N.C. App. 376, 377, 712 S.E.2d 189, 190 (2011), he stated that he had a right of appeal from the part of the 4 April 2018 judgment that ordered him to pay attorney's fees because that part of the judgment was a civil judgment and he had timely entered written notice of appeal. Defendant simultaneously filed a petition for writ of certiorari ("PWC") "out of an abundance of caution," "in the event this Court deem[ed] his notice of appeal insufficient."

The State responded to Defendant's PWC on 28 September 2018, arguing the PWC should be dismissed because it did not contain a "certified cop[y] of the judgment, order, or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition[,]" see N.C. R. App. P. 21(c) and, quoting Searles v. Searles , 100 N.C. App. 723, 725, 398 S.E.2d 55, 56 (1990), contending " ‘this Court is without authority to entertain an appeal where there has been no entry of judgment.’ " The State filed a motion to dismiss Defendant's appeal on 28 September 2018, quoting State v. Jacobs , 361 N.C. 565, 566, 648 S.E.2d 841, 842 (2007), and arguing this Court lacked jurisdiction to consider Defendant's appeal because the record contained no "civil judgment ... ordering payment of attorney fees," and the record must contain the order or judgment from which Defendant appeals in order to confer jurisdiction on this Court for review. The State further argued that Defendant "failed to comply with the mandatory requirements of Rule 3." The State filed its brief on 2 October 2018, in which it also argued that this Court lacked jurisdiction to consider Defendant's appeal.

Defendant filed his response to the State's motion to dismiss and filed a motion to amend the record on appeal, both on 10 October 2018. In his response, Defendant noted that the civil judgment ordering Defendant to pay $390.00 in attorney's fees was not entered until 3 October 2018, but his 10 April 2018 notice of appeal was sufficient to preserve appellate review of the 3 October 2018 order because judgment was rendered on 4 April 2018, and "rendering of an order commences the time when notice of appeal may be taken by filing and serving written notice, while entry of an order initiates the thirty-day time limitation within which notice of appeal must be filed and served." Abels v. Renfro Corp. , 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997) (emphasis in original) (citations omitted). In his motion to amend the record, Defendant requested this Court allow amendment of the record to include the 3 October 2018 order, entered under the same file number as the 4 April 2018 judgment—18-CRS-50682. The State responded to Defendant's motion to amend the record on 28 October 2018, arguing that the notice of appeal in this matter was only from "the judgment entered in this cause on April 4, 2018[,]" not from the "rendering" of the civil judgment concerning attorney's fees in open court.

II. Jurisdiction

While we agree with the State that Defendant did not follow the correct procedure for appealing the entry of the 3 October 2018 civil judgment ordering him to pay attorney's fees, Defendant's procedural missteps have not deprived this Court of jurisdiction to consider his appeal, either upon direct appeal or by granting certiorari. As with a judgment requiring a defendant to register as a sex offender, even though Defendant in this case was convicted of a crime, the order at issue is civil in nature, accomplished through entry of a civil judgment. Jacobs , 361 N.C. at 566, 648 S.E.2d at 842 ; see also Pell , 211 N.C. App. at 377, 712 S.E.2d at 190. "Therefore, an appeal from a sentence requiring a defendant to [pay attorney's fees as a civil judgment] is controlled by civil procedure," id. (citations omitted), and by Rule 3 of our Rules of Appellate Procedure. Jacobs , 361 N.C. at 566, 648 S.E.2d at 842. As in this case, the underlying criminal judgment from which the defendant in Pell appealed was based upon a guilty plea. Pell , 211 N.C. App. at 376, 712 S.E.2d at 190. In this case, the State argues that N.C.G.S. § 15A-1444 (2019), involving appeals from a guilty plea, removes appellate jurisdiction to consider Defendant's arguments. However, in Pell ,

[the d]efendant specifically appeal[ed] from the portion of his sentence requiring him to register as a sex offender. While a defendant is entitled to appeal from a guilty plea in limited circumstances, see N.C. Gen. Stat. § 15A-1444(a2) (2009), Defendant's appeal does not arise from the underlying convictions , therefore these limitations are inapplicable to the current action. Accordingly, Defendant's appeal is properly before this Court for appellate review.

Id. at 377, 712 S.E.2d at 190 (emphasis added). The defendant's notice of appeal in Pell did not specifically mention mandatory registration as a sex offender, as the notice of appeal in this case does not specifically mention attorney's fees. As with imposition of SBM in Pell , Defendant's appeal in this case "does not arise from the underlying convictions" and N.C.G.S. § 15A-1444(a2) does not deprive this Court of jurisdiction. Id. at 377, 712 S.E.2d at 190.

A. Rule 3

Rule 3(a) requires: "Any party entitled by law to appeal from a judgment or order of a superior ... court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court ... within the time prescribed by subsection (c) of this rule." N.C. R. App. P. 3(a). The dissenting opinion argues that this Court lacks jurisdiction because " Rule 3(a) and binding Supreme Court precedents ... prohibit this Court from granting Defendant's motion to amend the record of a purported appeal that does not exist, and consequently, over which this Court unquestionably does not possess and cannot assert jurisdiction[.]" Concerning the time for filing notice of appeal in a civil matter, this Court held in Abels : "Notwithstanding defendant's protestations that plaintiff's appeal was premature, ... plaintiff timely appealed in that her notice was filed and served subsequent to the trial court's rendering of its order, albeit prior to entry of said order." Abels , 126 N.C. App. at 804, 486 S.E.2d at 738. This is because "rendering of an order commences the time when notice of appeal may be taken by filing and serving written notice, while entry of an order initiates the thirty-day time limitation within which notice of appeal must be filed and served [in civil matters]. N.C. R. App. P. 3(c)." Id. (citations omitted); see also State v. Oates , 366 N.C. 264, 268, 732 S.E.2d 571, 574–75 (2012) (citation omitted) (in criminal cases "written notice may be filed at any time between the date of the rendition of the judgment or order and the fourteenth day after entry of the judgment or order"). Therefore, Defendant's 10 April 2018 written notice of appeal from the rendering of the civil judgment for attorney's fees on 4 April 2018 was sufficient to preserve Defendant's right to appeal the civil judgment ordering attorney's fees once that judgment was entered on 3 October 2018. Defendant's notice of appeal was timely filed. However, Defendant's appeal was docketed in this Court prior to entry of the 3 October 2018 judgment.

B. Sufficiency of Record

Defendant's mistake was not in the timing of the filing of his notice of appeal, Abels , 126 N.C. App. at 804, 486 S.E.2d at 738, but in the timing of the filing of the record. The State did not object or otherwise respond to Defendant's proposed record on appeal within thirty days of service, so the record was settled pursuant to N.C. R. App. P. 11(b), and the appeal was docketed pursuant to N.C. R. App. P. 12(b) when the record was filed with this Court on 22 August 2018. However, since the judgment from which appeal was taken, being the order imposing attorney's fees, had not yet been entered, the record was not in compliance with Rule 9(a)(1)(h.) when it was docketed. "To make [the trial court's] purpose a judgment, it must be entered of record, and until this shall be done, there is nothing to appeal from." Logan v. Harris , 90 N.C. 7, 7 (1884). Defendant should not have filed the record and proceeded with this appeal until after entry of the 3 October 2018 order, and that order needed to be included in the record on appeal in order to confer regular appellate jurisdiction on this Court. Jacobs , 361 N.C. at 566, 648 S.E.2d at 842 ("[B]ecause there is no civil judgment in the record ordering defendant to pay attorney fees, the Court of Appeals had no subject matter jurisdiction on this issue. See N.C. R. App. P. 3(a) ; id. 9(a)(1)(h).").

The dissenting opinion, citing Rule 3(a), contends that this Court cannot grant "Defendant's motion to amend the record of a...