State v. McGill
| Decision Date | 15 February 2022 |
| Docket Number | No. COA21-453,COA21-453 |
| Citation | 867 S.E.2d 766 (Table) |
| Parties | STATE of North Carolina v. Rodney Fadell MCGILL |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Nathan D. Childs, for the State.
Richard Croutharmel, for defendant.
¶ 1 Rodney Fadell McGill ("defendant") appeals from judgments entered against him for two counts of habitual larceny. Defendant argues the trial court lacked subject matter jurisdiction in the matter because the habitual larceny indictments were fatally defective in that they failed to allege whether defendant was represented by counsel or had waived counsel in each of his four prior larceny convictions. For the following reasons, we dismiss defendant's appeal.
¶ 2 On 16 December 2019, the Hickory Police Department received a call about defendant "loading large shopping bags full of merchandise at the Valley Hills Mall ... in Hickory after stealing items from" two retail shops inside the mall. After being given "a description of a specific black SUV that was waiting in the parking lot[,]" officers waited for defendant "to come out of the mall and get back in his car." When officers approached defendant while he was returning to the SUV, defendant "refuse[d] to follow commands, start[ed] his vehicle[,] and [took] off out of the parking lot." A chase ensued, with defendant eluding arrest by running "multiple stop signs" and driving "well over 15 miles per hour over the speed limit." When defendant failed to stop after hitting an unoccupied parked vehicle, the officers "call[ed] off the chase." After obtaining the SUV's registered owner's address, the officers arrived at the address, where they found the same SUV, bearing damages from a collision, and defendant, who had changed his clothes.
¶ 3 On 2 March 2020, a Catawba County Grand Jury indicted defendant on one count of fleeing to elude arrest with a moving vehicle, one count of hit and run for failure to stop after damaging property, and, pertinently, two counts of larceny under file number 19 CRS 56316 and two counts of larceny under file number 19 CRS 56317.
¶ 4 The indictment for file number 19 CRS 56316 read as follows:
¶ 5 The indictment for file number 19 CRS 56317 read as follows:
¶ 6 On 17 March 2021, defendant entered guilty pleas pursuant to Alford on two counts of habitual larceny under N.C. Gen. Stat. § 14-72(b)(6). In exchange for defendant's plea, the State agreed to "[d]ismiss remaining charges," not pursue Habitual Felon status, and provide a sentence "in the bottom of presumptive range" to run consecutively. Defendant received two consecutive active sentences of 16 to 29 months for the habitual larceny convictions.
¶ 7 On 25 March 2021, the Clerk of Superior Court in Catawba County received an "Inmate Grievance Record" in which defendant stated, in pertinent part: "IM [sic] REQUESTING TO ENTER AN APPEAL ON MY CASE THAT TOOK PLACE ON 3-17-20 [sic] [.]" (The actual date of the case was 3-17-21.) Appellate entries followed on the same day, where the trial court, through boilerplate language, noted that defendant had given notice of appeal, found defendant indigent, and ordered the Appellate Defender's office to represent defendant on appeal. On 20 May 2021, the Appellate Defender's office appointed appellate counsel, and, on 2 June 2021, all trial transcripts were delivered to all appellate attorneys. The record was filed on 13 August 2021, and defendant, through appellate counsel, filed his appellant brief on 5 October 2021.
¶ 8 Defendant claims that the trial court lacked subject matter jurisdiction to hear the larceny charges against him, arguing that the indictments for larceny were fatally defective in that they failed to state whether defendant was represented by counsel or had waived counsel during any of his four prior larceny convictions. We first address whether this appeal is properly before us.
¶ 9 Defendant's appeal is defective in multiple ways. Defendant failed to serve notice of appeal upon the State, in violation of Rule 4. See N.C.R. App. P. 4(a)(2). Furthermore, defendant had no statutory right to appeal, as he appeals from a non-sentencing issue following his Alford plea. See N.C. Gen. Stat. § 15A-1444(a1-a2) (2021).
¶ 10 Recognizing that his appeal is subject to dismissal, defendant has filed a Petition for Writ of Certiorari. In this petition, defendant concedes that this Court could dismiss his appeal for failure to serve the State and for lack of a statutory right to directly appeal. Indeed, defendant "has not properly given notice of appeal," and thus "this Court is without jurisdiction to hear the appeal." State v. McCoy , 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (2005) (citations omitted).
¶ 11 We next review whether granting defendant's petition is warranted in this case. "Certiorari is a discretionary writ, to be issued only for good and...
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