State v. Ore
| Decision Date | 07 June 2022 |
| Docket Number | COA21-693 |
| Citation | 2022 NCCOA 380 |
| Parties | STATE OF NORTH CAROLINA v. JONATHAN DANIEL ORE |
| Court | North Carolina Court of Appeals |
Heard in the Court of Appeals 11 May 2022.
Appeal by defendant from judgments entered 22 June 2021 by Judge V Bradford Long in Davidson County Nos. 20 CRS 50976, 21 CRS 681 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney General Shelby N.S. Boykin, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Candace Washington, for defendant-appellant.
¶ 1 Jonathan Daniel Ore ("Defendant") seeks appellate review of orders modifying his probation and holding him in contempt. Defendant has no statutory right to appeal the waiver of counsel or the modification of his probation. Defendant recognizes this fact and has filed a petition for writ of certiorari ("PWC"). We dismiss Defendant's PWC seeking review of the waiver of counsel and the modification of his probation. We allow Defendant's other PWC to review the trial court's order holding him in contempt and affirm.
¶ 2 Defendant pleaded guilty to possession of methamphetamine on 3 November 2020. He was sentenced to serve a term of 8 to 19 months imprisonment, which was suspended, and he was placed on supervised probation for twelve months. Defendant's suspension of sentence and probation judgment included among other conditions that he: (1) obtain a substance abuse assessment; (2) complete any recommended treatment; (3) if unemployed, complete the Treatment Accountability for Safer Communities ("TASC") program; (4) submit to drug testing; and, (5) not engage in further criminal activity.
¶ 3 On 27 May 2021, Kierra Mobley ("Officer Mobley"), filed a probation violation report alleging Defendant had willfully violated the conditions of his probation by: (1) testing positive three times for controlled substances on 18 March 2021, 19 April 2021, and 27 May 2021; (2) failing to report to his probation officer on 25 May 2021 and 26 May 2021; (3) being charged with criminal trespass on 22 May 2021; and, (4) being discharged from TASC for failing to obtain a drug and alcohol assessment within 30 days of his referral.
¶ 4 A probation violation hearing was noticed for and held on 22 June 2021. At the hearing on his violation report, Defendant indicated to the trial court he desired to represent himself. The State requested the trial court to conduct a colloquy into Defendant's knowing and voluntary waiver of counsel prior to accepting Defendant's request. The trial court inquired into Defendant's request, informed him of potential adverse consequences of proceeding unrepresented, and accepted his waiver of counsel. Defendant signed a written waiver of all assistance of counsel in open court.
¶ 5 Officer Mobley was called and testified about Defendant's multiple violations asserted in the 27 May 2021 probation violation report. Defendant did not cross-examine Officer Mobley nor did he testify or offer any evidence. The State recommended Defendant's probation be modified and extended for 6 months to allow him to undergo substance abuse treatment with the Drug and Alcohol Recovery Treatment Center ("DART Center").
¶ 6 The trial court agreed with the State's recommendation and ordered Defendant to be held in custody until he could enter the DART Center. Defendant did not testify, offer evidence, or argue his case, but stated he did not believe he was going to jail.
¶ 7 The trial court began to enter its findings when Defendant blurted out: The trial court explained it was only holding Defendant in custody until he could receive DART therapy. Defendant responded, The trial court informed Defendant if he said "one more word" the court would "give [him] 30 days for direct criminal contempt."
¶ 8 The trial court found evidence supported the violations as alleged in the 27 May 2021 probation violation report and concluded Defendant was in knowing and willful violation of supervised probation without justifiable excuse. The trial court extended Defendant's probation term for 6 months and ordered him to complete the "DART drug/alcohol treatment program maintained by the North Carolina Department of Corrections." The trial court also ordered Defendant to remain in custody until he could attend DART.
¶ 9 The trial court clarified it would only allow Defendant to remain in custody for a maximum of two weeks while waiting for an opening for DART. If no opening became available within two weeks, the trial court would revisit treatment options. As Defendant was exiting the courtroom, he stated:
¶ 10 The trial court instructed the bailiffs to bring Defendant back before the court and began contempt proceedings. The trial court found Defendant to be in direct criminal contempt and ordered him to serve an active sentence of 30 days. The trial court made appellate entries for the contempt charge.
A. Modification and Extension of Probation ¶ 11 Defendant has no constitutional or common law right to appeal. "Similar to federal procedure, a North Carolina criminal defendant's right to appeal a conviction is provided entirely by statute." State v. Berryman, 360 N.C. 209, 214, 624 S.E.2d 350, 354 (2006) (citations omitted). Defendant entered no purported notice of appeal.
¶ 12 N.C. Gen. Stat. § 15A-1347(a) provides: "When a superior court judge as a result of a finding of a violation of probation, activates a sentence or imposes special probation, either in the first instance or upon a de novo hearing after appeal from a district court, the defendant may appeal under G.S. 7A-27." N.C. Gen. Stat. § 15A-1347(a) (2021) (emphasis supplied).
¶ 13 Defendant's initial term of probation was modified and extended after competent evidence of and findings and conclusions he had committed multiple willful violations. His sentence was not activated nor did the court impose a special condition of probation. Id. "[A] defendant does not have the right to appeal from an order that merely modifies the terms of probation where the [d]efendant's sentence was neither activated nor was it modified to 'special probation.'" State v. Romero, 228 N.C.App. 348, 350, 745 S.E.2d 364, 366 (2013) (Dillon, J.) (). Defendant has no right to appeal the modification and extension of his probation unless one of the two statutory conditions above is met. Id.
¶ 14 Recognizing he has no right to appeal, Defendant petitioned for a writ of certiorari to purport to invoke this Court's appellate jurisdiction, while showing no merit or prejudice. State v. Ricks, 378 N.C. 737, 738, 862 S.E.2d 835, 837, 2021-NCSC-116, ¶ 1 (2021) ("[A]n appellate court may only consider certiorari when the petition shows merit, meaning that the trial court probably committed error at the hearing.") This Court is "without [statutory] authority to review, either by right or by certiorari, the trial court's modification of defendant's probation." State v. Edgerson, 164 N.C.App. 712, 714, 596 S.E.2d 351, 353 (2004); see N.C. Gen. Stat. § 15A-1347.
¶ 15 "Certiorari is a discretionary writ, to be issued only for good and sufficient cause shown." State v. Rouson, 226 N.C.App. 562, 564, 741 S.E.2d 470, 471 (2013) (citing State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)) "A petition for the writ [of certiorari] must show merit or that [prejudicial and reversible] error was probably committed below." Id.
¶ 16 Other than recognizing this Court's power of jurisdiction to exercise our discretion of appellate review over petitions for writ of certiorari, nothing in the holdings of either State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015) or State v. Ledbetter, 371 N.C. 192, 814 S.E.2d 39 (2018) bears any significance to the issues before us in this appeal. Neither Edgerson, nor N.C. Gen. Stat. § 15A-1347 is cited in either opinion.
¶ 17 In Stubbs, our Supreme Court held:
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, and given that the General Assembly has placed no limiting language in subsection 15A-1422(c) regarding which party may appeal a ruling on an MAR, we hold that the Court of Appeals has jurisdiction to hear an appeal by the State of an MAR when the defendant has won relief from the trial court.
Stubbs, 368 N.C. at 43, 770 S.E.2d at 76 (internal citations omitted) (emphasis supplied). Stubbs merely interprets N.C. Gen. Stat. § 15A-1422 to allow an appellate court to review the State's PWC to review a trial court's decision on the denial of the State's motion for appropriate relief ("MAR") in a superior court. Id.
¶ 18 In Ledbetter, our Supreme Court extended the same statutory analysis from MARs to PWCs seeking appellate review of guilty pleas, and held our Court has jurisdiction and consequently discretionary authority to allow appellate review of a PWC under N.C. Gen. Stat. § 15A-1444(e) (2017). Ledbetter, 371 N.C. 196, 814 S.E.2d at 42; N.C. Gen. Stat. § 15A-1444(e) (...
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