State v. McCoy

• Decision Date: 19 July 2005
• Docket Number: No. COA04-209.,COA04-209.
• Citation: 615 S.E.2d 319
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jerome Cannon McCOY.

615 S.E.2d 319

STATE of North Carolina v. Jerome Cannon McCOY.

No. COA04-209.

Court of Appeals of North Carolina.

July 19, 2005.

Appeal by defendant from judgment entered 15 September 2003 by Judge Michael E. Helms in Guilford County Superior Court. Heard in the Court of Appeals 20 October 2004.

Attorney General Roy Cooper, by Assistant Attorney General Margaret P. Eagles, for the State.

Appellate Defender Staples Huges, by Assistant Appellate Defender, Matthew D. Wunsche, for defendant-appellant.

STEELMAN, Judge.

On 15 September 2003, defendant appeared before the Superior Court of Guilford County, along with his court-appointed counsel, Thomas Maddox, concerning motions defendant had filed pro se. Defendant was in custody at the time of the hearing. When defendant was leaving the courtroom following the hearing, he stated to Julia Hejazi, the assistant district attorney, "you're going down." The trial judge found defendant to be in direct contempt of court and sentenced him to thirty days in the county jail. The order was reduced to writing and entered on 15 September 2003, with a copy delivered to defendant at the jail on 18 September 2003. Defendant gave notice of appeal on 13 October 2003.

We first consider the State's motion to dismiss defendant's appeal for failure to give notice of appeal within fourteen days from the entry of the order holding him in contempt as required by Rule 4(a)(2) of the North Carolina Rules of Appellate Procedure. Defendant freely acknowledged that the notice of appeal was not timely given. In a footnote to his Statement of Facts, defendant states the following:

Defendant acknowledges that notice of appeal was given outside of the 14-day period set by N.C. Rule of Appellate Procedure 4(a)(2). Defendant asserts, however, that the delay was due to the denial of his constitutional and statutory right to counsel and the summary nature of the contempt proceeding, as discussed in arguments I and II below. If this Court does not recognize defendant's notice of appeal, defendant respectfully requests this Court consider this brief as a Petition for a Writ of Certiorari and consider the issues raised on their merits.

We note that when a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal. See State v. McMillian, 101 N.C.App. 425, 427, 399 S.E.2d 410, 411 (1991). See also Sillery v. Sillery, ___ N.C.App. ___, ___, 606 S.E.2d 749, 751 (2005). Rule 27(c) of the Rules of Appellate Procedure prohibits this Court from granting defendant an extension of time to file his notice of appeal since compliance with the requirements of Rule 4(a)(2) is jurisdictional and cannot simply be ignored by this Court. See O'Neill v. Southern Nat. Bank, 40 N.C.App. 227, 230, 252 S.E.2d 231, 233-34 (1979).

While this Court cannot hear defendant's direct appeal, it does have the discretion to consider the matter by granting a petition for writ of certiorari. "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,...." N.C. R.App. P. 21(a). This rule goes on to specify the contents of a petition for writ of certiorari:

The petition shall contain a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the reasons why the writ should issue; and certified copies 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. The petition shall be verified by counsel or the petitioner. Upon receipt of the prescribed docket fee, the clerk will docket the petition.

N.C. R.App. P. 21(c) (2005).

The footnote contained in appellant's brief clearly does not meet the requirements set forth in Rule 21(c). "The North Carolina Rules of Appellate Procedure are mandatory and `failure to follow these rules will subject an appeal to dismissal.'" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 360 (2005). In order to correct the deficiencies in defendant's purported petition for writ of certiorari, we would have to invoke the provisions of Rule 2 of the Rules of Appellate Procedure.

The authority granted in Rule 2 is discretionary. State v. Owens, 160 N.C.App. 494, 498, 586 S.E.2d 519, 522 (2003) (citing to N.C. R.App. P. 2). The provisions of Rule 21 are also discretionary. State v. Strausser, ___ N.C.App. ___, ___, 612 S.E.2d 448, ___ (2005) (citing State v. Grundler and State v. Jelly, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)).

We decline to exercise our discretion under Rule 2 to correct the defects in defendant's purported petition for writ of certiorari. In addition, we further decline to exercise our discretion and deny defendant's purported petition for writ of certiorari. "It is not the role of the appellate courts ... to create an appeal for an appellant." Viar, 359 N.C. at 402, 610 S.E.2d at 361.

The State's motion to dismiss defendant's appeal is granted.

APPEAL DISMISSED; PETITION FOR WRIT OF CERTIORARI DENIED.

Judge CALABRIA concurs.

Judge GEER dissents.

GEER, Judge, dissenting.

Rule 2 of the Rules of Appellate Procedure provides that "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative...." I can conceive of no greater example of "manifest injustice" than to allow a man to be imprisoned based only on unsworn statements, including statements not made on the record. Adding to the "manifest injustice" is the fact that during the course of the proceedings below—which certainly did not amount to a formal hearing—trial counsel stood mute. He said not a word. To allow a man to be convicted based literally on no competent evidence and without any representation by trial counsel defines "manifest injustice."

I cannot join in the majority's decision to dismiss this unquestionably meritorious appeal solely because appellate counsel followed the not uncommon approach of requesting in a footnote that this Court treat the appeal as a petition for writ of certiorari. While defendant is hardly sympathetic and his sentence is only 30 days, these facts cannot erase the trial court's departure from the fundamental principles underlying our country's judicial system. To put it bluntly: North Carolina does not administer justice in this manner. I do not believe this Court should turn a blind eye based on a less than two-week delay in the appeal from a defendant who was effectively unrepresented by counsel.

Although the majority relies upon Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005), I do not believe that our Supreme Court intended in Viar to eviscerate Rule 2, especially in criminal appeals. Since the Supreme Court has not amended the Rules of Appellate Procedure to eliminate Rule 2, the Rule must still exist to prevent "manifest injustice" or "to expedite decision in the public interest." If Rule 2 is to have any continuing meaning, it must be available in cases such as this one. I would, therefore, deny the State's motion to dismiss, reverse the trial court, and remand to have the trial court conduct contempt proceedings in accordance with N.C. Gen.Stat. § 5A-15 (2003).

Facts

Defendant appeared with his appointed counsel at a hearing on 15 September 2003 to address motions that defendant had filed pro se in a criminal matter. After the trial court granted defendant's request for additional time to prepare for a hearing on his motions, defendant was led out of the courtroom. The assistant district attorney then asked the court to "put on the record that as the defendant walked out of the courtroom, he looked at me and said you're going down and continued to mumble to me." Defense counsel is reported as then saying, "I thought you were doing a great job, Judge."

The judge immediately had defendant returned to the courtroom. At this point, according to the transcript, the judge did not place any witnesses under oath. No one testified; no evidence was admitted. Instead, as soon as defendant was again before him, the judge engaged defendant and the assistant district attorney in the following exchange:

THE COURT: Mr. McCoy, I thought I'd give you another opportunity to be heard.... When you left the courtroom, the district attorney said that while you were behind me where I couldn't see you that you looked at her and—what did you say that he mouthed?

MS. HEJAZI [the assistant district attorney]: I believe he said you're going down. And he continued to make gestures with his face and looking at me making comments.

THE COURT: You're going down. Now, this is following on the heels of a motion that you had made where you indicated he threatened you, Madam District Attorney? Is that true? Which motion was that?

MS. HEJAZI: The motion, Your Honor, that I—

THE COURT: I'm not sure that I ever saw that language in the body.

MS. HEJAZI: Specifically to me was the motion filed September 9. It's titled Motion to Dismiss Frivolous Warrants. On the back page, the last paragraph says Ms. Hejazi, I'm willing to die and meet my creator defending our great United States Constitution and the rights that are guaranteed. Are you willing to die and go to hell to try—trying to mutilate and molest our great constitution?

....

THE COURT: Mr. McCoy, I'm concerned—that's not a direct threat. But it certainly sounds threatening to me.

(Emphasis added.)

The judge then continued:

I'm thinking that you have reduced the dignity of this Court and you turned this courtroom into a ring, an arena for violence and intimidation, and we just...