State v. McDonald

• Docket Number: COA22-672
• Decision Date: 01 August 2023
• Parties: STATE OF NORTH CAROLINA v. KENNETH MARTIN MCDONALD, Defendant
• Court: North Carolina Court of Appeals

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STATE OF NORTH CAROLINA
v.
KENNETH MARTIN MCDONALD, Defendant

No. COA22-672

Court of Appeals of North Carolina

August 1, 2023

Heard in the Court of Appeals 22 March 2023.

Appeal by Defendant from judgment entered 3 February 2022 by Judge Tiffany Peguise-Powers in Robeson County No. 11 CRS 711839 Superior Court.

Attorney General Joshua H. Stein, by Assistant Attorney General Michael T. Henry, for the State.

Patterson Harkavy LLP, by Narendra K. Ghosh and Paul E. Smith, for Defendant.

GRIFFIN, Judge.

Defendant Kenneth Martin McDonald pled guilty to misdemeanor death by motor vehicle and the trial court continued judgment. Years later, the State prayed judgment on that conviction and the motion was allowed by the trial court. Defendant appeals from that judgment. Defendant contends the trial court erred in entering judgment because (1) the prayer for judgment continued ("PJC") was intended to be a final judgment and (2) the nearly seven-year delay in entering judgment was unreasonable. We affirm.

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I. Factual and Procedural Background

This case arises from a vehicular collision between Defendant's vehicle and a motorcycle, resulting in the death of the motorcycle driver. The evidence at trial tended to show as follows:

On 6 October 2011, Defendant was preparing to make a left turn when he stopped his vehicle about three feet over the center yellow lines and into the neighboring lane. Ricky Oldfield was traveling on a motorcycle in the left, oncoming lane toward Defendant at that time. Oldfield saw Defendant stop in front of him and attempted to stop his motorcycle by engaging the brakes and sliding. Oldfield was unable to stop and collided with Defendant's vehicle. Oldfield hit his head on the front bumper of Defendant's car and died as a result of the accident.

Defendant was charged with misdemeanor death by motor vehicle. Defendant pled not guilty and his case came on for trial in April 2012 in Robeson County District Court. On 25 April 2012, Defendant was found guilty of misdemeanor death by vehicle and the District Court imposed a suspended sentence of twelve months of probation. Defendant appealed to superior court.

On 28 October 2014, Defendant pled guilty to the charge of misdemeanor death by vehicle in Robeson County Superior Court. Defendant's plea agreement stated that, as conditions for the acceptance of his plea, "Defendant shall plead guilty" and "Defendant shall acknowledge responsibility in open court." The agreement further stated that the trial court would "then enter a Prayer for Judgment in this matter."

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The trial court proceeded to sentencing following Defendant's plea. During sentencing, Defendant issued an apology to the court and to Oldfield's family. After hearing from Defendant and Oldfield's family, the trial court concluded the hearing with the following remarks:

Pursuant to the transcript of plea, judgment's continued in this matter upon payment of the costs

I hope that both sides can have some peace and resolution in this matter.

...

I wish both sides every good fortune.

The trial court then entered a written order "that prayer for judgment be continued from day to day, week to week, term to term until further motion of the state, upon payment of cost."

On 14 August 2020, nearly six years later, the State filed a motion to calendar and pray judgment after Defendant was charged with involuntary manslaughter in connection with another motor vehicle accident. On 25 September 2020, Defendant filed a motion in opposition. On 3 February 2022, the trial court filed a written judgment granting the State's motion to pray judgment and entering judgment on Defendant's 2014 conviction, sentencing Defendant to 150 days' imprisonment, suspended for twelve months of supervised probation. Defendant appeals.

II. Analysis

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Defendant contends the trial court erred in allowing the State's prayer for judgment and entering judgment on his 2014 conviction because (1) the court intended for his PJC to be a final judgment and (2) it was unreasonable to delay entry of judgment until nearly seven years after Defendant's conviction.

A. Jurisdiction

Defendant acknowledges he has no right to appeal from the entry of judgment upon his guilty plea. Accordingly, Defendant asks this Court to grant his petition for a writ of certiorari pursuant to N.C. Gen. Stat. § 15A-1444(e). See N.C. Gen. Stat. § 15A-1444(e) (2021) (stating a defendant who pleads guilty and thus has no right to appeal "may petition the appellate division for review by writ of certiorari"). We exercise our discretionary authority and grant review. See State v. Posner, 277 N.C.App. 117, 120, 857 S.E.2d 870, 872 (2021).

B. The PJC was not a Final Judgment

Defendant first argues the trial court erred in entering judgment in 2022 because the "2014 [P]C] was meant to be final." This Court reviews the issue of whether a PJC constitutes a final judgment de novo. See State v. Popp, 197 N.C.App. 226, 228, 676 S.E.2d 613, 614 (2009).

"A trial court has the inherent power to designate the manner by which its judgments shall be executed." State v. Lea, 156 N.C.App. 178, 180, 576 S.E.2d 131, 132 (2003). "For example, a court is authorized to continue a case to a subsequent date for sentencing." Id. "This continuance is frequently referred to as a '[P]C]' and

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vests a trial judge presiding at a subsequent session of court with the jurisdiction to sentence a defendant for crimes previously adjudicated." Id. "When, however, the trial judge imposes conditions 'amounting to punishment' on the continuation of the entry of [the] judgment, the judgment loses its character as a PJC and becomes a final judgment." State v. Brown, 110 N.C.App. 658, 659, 430 S.E.2d 433, 434 (1993) (citation omitted). We have held that fines and imprisonment terms constitute conditions "amounting to punishment," and transforming a PJC into a final judgment, while conditions requiring a defendant to "obey the law" and pay court costs do not cause such a change. Id.; State v. Absher, 335 N.C. 155, 157, 436 S.E.2d 365, 366 (1993) ("In this state, we have made a distinction between cases in which prayer for judgment is continued with conditions imposed and cases in which prayer for judgment is continued without any conditions.").

Defendant argues his PJC became a final judgment by operation of law because the trial court included a condition amounting to punishment. Specifically, Defendant's argument turns upon the fact that his PJC was allowed only after he "acknowledge[d] responsibility in open court" by an oral apology, as outlined in his plea agreement.

Defendant relies on this Court's decision in State v. Popp to support his contention. In Popp, the defendant agreed to plead guilty to certain crimes charged upon the condition that the State would dismiss other charges. The trial court then continued judgment on the defendant's conviction, but also ordered him to "abide by

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a curfew, complete high school, enroll in an institution of higher learning or join the armed forces, cooperate with random drug testing, complete 100 hours of community service, remain employed, and write a letter of apology." Popp, 197 N.C.App. at 228, 676 S.E.2d at 615. On appeal, our Court held that the defendant had been "ordered to complete a number of conditions which [were] beyond a requirement to obey the law," and his PJC therefore "lost its character as a PJC and was transformed into a final judgment." Id. at 228, 676 S.E.2d at 615. In the similar case of State v. Brown, our Court found the defendant was required to do more than obey the law when he was ordered to continue mental health treatment in the future. Brown, 110 N.C.App. at 659, 430 S.E.2d at 434. Notably, the defendants in Popp and Brown were ordered to take actions following the grant of their PJCs which would require further court supervision or monitoring by the State.

Defendant's case is distinguishable from both Popp and Brown. In Popp and Brown, the defendants' PJCs were predicated on additional conditions which were to be completed after entry of the PJC. In the present case, Defendant was asked to follow through on his promise to issue an oral apology, after he had formally admitted responsibility in his plea agreement. Indeed, Defendant concedes in his brief on appeal that "[r]equiring [Defendant] to make an apology was . . . part of the 'terms and conditions' of the plea agreement"-terms which included that Defendant would receive a PJC. The language of Defendant's plea agreement shows that he signed the

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plea upon consideration that he would receive a PJC. He cannot now claim that the State's reciprocal terms were an improper condition on that subsequent PJC.

Once the PJC was granted, Defendant was free of additional requirements; other than the general requirement to obey the law. The State prayed for judgment in this case only after Defendant was charged with a separate, but similar, crime. Defendant was not ordered to complete any condition that amounted to punishment transforming his PJC into a final judgment.

Defendant further argues the trial court intended the judgment to be final because the trial judge stated in open court that he hoped "both sides can have some peace and resolution in the matter" following entry of Defendant's PJC. Defendant's brief cites no authority in support of this argument. Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure requires that, in an appellant's brief on appeal, "[t]he body of the argument and the statement of applicable standard(s) of review shall contain citations of authorities upon which the appellant relies." N.C. R. App. P. 28(b)(6). Defendant cites no authority and his argument is therefore abandoned. See Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401-02, 610 S.E.2d 360, 361 (2005). Nonetheless, assuming that this issue is properly before us, we are...