State v. Perkins

• Decision Date: 18 October 2022
• Docket Number: COA20-572
• Parties: STATE OF NORTH CAROLINA v. GREGORY A. PERKINS, Defendant.
• Court: North Carolina Court of Appeals

1

2022-NCCOA-38

STATE OF NORTH CAROLINA v. GREGORY A. PERKINS, Defendant.

No. COA20-572

Court of Appeals of North Carolina

October 18, 2022

Heard in the Court of Appeals again 21 June 2021.

Appeal by Defendant from judgments entered 19 February 2020 by Judge Paul C. Ridgeway in Wake County Superior Court Nos. 09 CRS 211758-60, 211765. First heard in the Court of Appeals 7 May 2014.

Attorney General Joshua H. Stein, by Special Deputy Attorneys General Amy Kunstling Irene and Jonathan P. Babb, for the State.

Jason Christopher Yoder for the Defendant.

JACKSON, JUDGE

¶ 1 This is this Court's fourth opinion in this case. On 1 July 2014, this Court issued an unpublished opinion finding no error in a 2012 trial that culminated in Gregory A Perkins's ("Defendant") conviction of first-degree rape of a child, incest, and two counts of first-degree sexual offense. See State v. Perkins 760 S.E.2d 38, 42 (2014) (unpublished) ("Perkins I"). On 21 July 2014, this Court entered an order withdrawing the 1 July 2014 opinion, directing the Clerk of our Court not to certify it, and retaining the cause for disposition by the original panel to which it had been assigned. On 5 August 2014, this Court issued an amended opinion in the case, which was also unpublished. See State v. Perkins, 235 N.C.App. 425, 763 S.E.2d 928, 2014 WL 3824261 (2014) (unpublished) ("Perkins II"). This amended opinion also found no error in Defendant's trial, see id. at *4; however, it corrected an error in this Court's first opinion, omitting some of the analysis in the first opinion because it was erroneous. Compare Perkins I, 760 S.E.2d at 42 ("Defendant contends the trial court's use of his prior conviction to calculate his prior record level was prejudicial error, and cites State v. West, 180 N.C.App. 664, 638 S.E.2d 508 (2006), in support of his argument. . . . West is not applicable to the instant case[.]") with Perkins II at 3 ("Defendant contends the trial court's use of his prior conviction to calculate his prior record level was prejudicial error. However, defendant stipulated to his prior record level. . . . [D]efendant's stipulation [] to his prior record level was binding.").^[1] The facts of this case are detailed in the Court's 5 August 2014 amended opinion, so we repeat only those necessary to understand the disposition of this appeal.

I. Background

¶ 2 On 30 December 2016, Defendant filed a motion for appropriate relief ("MAR") in Wake County Superior Court alleging that he received ineffective assistance of counsel in his 2012 trial because his trial counsel stipulated that his prior record level was II rather than I based on a charge-a count of indecent liberties-that had been originally joined for trial with not only the four charges of which he was convicted in 2012, but also 15 others the State had previously voluntarily dismissed.^[2] The MAR court denied the MAR.

¶ 3 On 21 June 2017, Defendant petitioned our Court for a writ of certiorari to review the merits of the MAR court's order. We granted the petition on 10 July 2017, vacating the MAR court's order, and remanding the case to the MAR court for reconsideration of the MAR and for Defendant to conduct post-conviction discovery. On 2 August 2018, the MAR court finally entered an order in which it concluded that trial counsel's stipulation that Defendant had a prior record level of II was erroneous but that counsel's error did not rise to the level of ineffective assistance of counsel.^[3] The MAR court therefore ordered a resentencing.

¶ 4 On 19 February 2020, Judge Paul C. Ridgeway resentenced Defendant. Correcting the trial court's error, and the error in this Court's two prior opinions, see Perkins I, 760 S.E.2d at 42; Perkins II, 2014 WL 3824261 at 3, Judge Ridgeway sentenced Defendant as a prior record level I offender rather than a prior record level II offender, but otherwise imposed four consecutive, presumptive-term sentences for the 2012 convictions, like the trial court had. Judge Ridgeway also entered orders on 19 February 2020 requiring Defendant to enroll in satellite-based monitoring ("SBM") for the rest of his life because of the 2012 convictions.

¶ 5 Defendant timely noted appeal from the judgments and on 14 December 2020 petitioned our Court for certiorari to review the SBM orders. On 18 January 2022, this Court issued its third opinion in this case, issuing the writ of certiorari to review the SBM orders per opinion. See State v. Perkins, 2022-NCCOA-38 (withdrawn) ("Perkins III"). Because the Court issued the writ of certiorari per opinion, it contemporaneously dismissed Defendant's petition for certiorari as moot by order. Nine days later, Defendant petitioned our Court for rehearing en banc or, in the alternative, moved that we stay the mandate and withdraw the 18 January 2022 opinion. On 7 February 2022, we allowed Defendant's motion to withdraw the Court's third opinion and dismissed the petition for rehearing en banc without prejudice to any future petition for rehearing en banc Defendant might file after we issue this opinion.

II. Jurisdiction

¶ 6 The withdrawal of the Court's third opinion made the issuance of the writ of certiorari therein a nullity, resurrecting Defendant's 14 December 2020 petition for certiorari to review the SBM orders. Consequently, the Court's order entered contemporaneously with the 18 January 2022 opinion dismissing Defendant's petition for certiorari as moot is not only descriptively erroneous-the petition is not moot because the opinion allowing the same relief requested by the petition has since been withdrawn and its award of that relief no longer exists, see, e.g., Chavez v. McFadden, 374 N.C. 458, 467, 843 S.E.2d 139, 146 (2020) ("A case is 'moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.") (citation omitted)-the order dismissing the petition as moot is a nullity itself, because it was predicated on what became a nullity, see, e.g., Hill v. Stansbury, 224 N.C. 356, 357, 30 S.E.2d 150, 151 (1944) ("Where there is a want of jurisdiction [] over . . . the process, it is the same as if there were no court. Proceedings so had are said to be coram non judice, and are void."). See Coram Non Judice, Black's Law Dictionary (11th ed. 2019) (defining coram non judice as "[o]utside the presence of a judge" or "[b]efore a judge or court that is not the proper one or that cannot take legal cognizance of the matter").

¶ 7 The final judgments entered by the resentencing court on 19 February 2020 are otherwise properly before us under N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444.

¶ 8 In the exercise of our discretion, we issue the writ of certiorari. While Judge Tyson disagrees with that decision, a majority of the Court concurs in issuance of a writ of certiorari per opinion to review the 2020 orders. I am alone in reaching the merits of Defendant's arguments related to the 2020 SBM orders, however. Judge Murphy concurs in the issuance of certiorari but would hold the trial court lacked jurisdiction to enter the 2020 SBM orders and vacate them as set out in his separate opinion. I would hold that Defendant's arguments related to the 2020 SBM orders lack merit and affirm the orders.

III. Analysis

A. Introduction

¶ 9 In light of the Court's decision to review the 2020 SBM orders, and the disagreement between my colleagues about whether the orders are properly before our Court, this case presents three questions: first, are the indictments facially valid where they identified the victim using the victim's initials and date of birth? Defendant argues in his brief to our Court that they are not. We hold that they are. The panel is unanimous in that holding.

¶ 10 The second question presented is whether the 2020 SBM orders are properly before the Court. A majority of the Court agrees that they are, upon issuance of a writ of certiorari per opinion, in the exercise of our discretion. See N.C. R. App. P. 21(a)(1) ("The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of . . . orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]").

¶ 11 The third is whether the orders violated the Fourth Amendment. I would hold that they did not, under our Supreme Court's decision in State v. Hilton, 378 N.C. 692, 2021-NCSC-115, 862 S.E.2d 806, and our Court's recent decisions interpreting and applying Hilton in State v. Carter, 2022-NCCOA-262 ¶¶ 18-20 and State v. Anthony, 2022-NCCOA-414 ¶¶ 24-32-decisions we are bound to follow as an intermediate appellate court that cannot overrule itself-see, e.g., Upchurch v. Harp Builders, Inc., 2022-NCCOA-301 ¶ 11 ("[W]here a panel of this Court has decided a legal issue, future panels are bound to follow that precedent. This is so even if the previous panel's decision involved narrowing or distinguishing an earlier controlling precedent-even one from the Supreme Court[.]") (quoting State v. Gonzalez, 263 N.C.App. 527, 531, 823 S.E.2d 886, 888-89 (2019)). Neither of my colleagues would reach the issue of whether the orders violated the Fourth Amendment.

¶ 12 Their stated reasons differ. Judge Tyson would not issue a writ of certiorari simply because Defendant's Fourth Amendment arguments lack merit, and because Judge Tyson takes our Supreme Court's decision in State v. Ricks, 378 N.C. 737, 2021-NCSC-116, to be controlling here. In Ricks, the Supreme Court held that our Court abused its discretion when it reviewed an SBM order upon issuance of a writ of certiorari where the defendant's petition did not "show merit or that error was probably committed below." Id. at 743, 2021-NCSC-116 ¶ 11. Under Ricks,...