in the Court of Appeals 1 May 2017.
by defendant from judgment entered 23 August 2016 by Judge
Milton F. Fitch, Jr. in Wilson County, No. 13 CRS 3256
Attorney General Joshua H. Stein, by Assistant Attorney
General Tracy Nayer, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
Lindovis Jones (defendant) appeals from a judgment entered
upon his plea of guilty to attempted robbery with a dangerous
weapon. Defendant has filed a petition for issuance of a writ
of certiorari to obtain review of the sentencing proceeding,
and we elect to grant his petition. On appeal, defendant
argues that he is entitled to a new sentencing hearing, on
the grounds that his counsel informed the trial court that
defendant wanted to address the court before it imposed
judgment, but the trial court denied him the opportunity to
speak. We agree, and conclude that the judgment must be
vacated and remanded for a new sentencing hearing.
Factual and Procedural Background
November 2013, a warrant was issued for defendant's
arrest, charging him with having committed the offenses of
first-degree murder, first-degree burglary, and armed robbery
almost three years earlier, on 4 January 2011. Defendant was
indicted for these offenses on 7 July 2014. On 30 March 2016,
defendant pleaded guilty to attempted armed robbery, pursuant
to a plea agreement. The terms of the plea arrangement were
that defendant would plead guilty to the charge of attempted
armed robbery and would provide truthful testimony against
his codefendants if requested to do so by the State; in
exchange, the State would dismiss the charges of first-degree
murder and first-degree burglary. The plea bargain did not
include any agreement on the sentence that defendant would
receive. Defendant's sentencing was continued until 22
August 2016, defendant appeared before the trial court for
sentencing. The sentencing hearing is discussed in greater
detail below. Briefly, at the outset of the hearing,
defendant's counsel informed the court that counsel would
argue on defendant's behalf and that defendant wished to
"address the Court at the appropriate time, " to
which the trial court agreed. Thereafter, defendant's
counsel advised the court of aspects of defendant's
personal history that might be pertinent to the court's
sentencing decision. Defense counsel also presented testimony
from a lead investigator of the underlying offenses, who
spoke on defendant's behalf about the assistance that
defendant had provided, which had enabled law enforcement
officers to solve the case. After the detective finished, the
trial court announced that it was "ready to give the
judgment" and entered judgment without allowing
defendant to address the court. Defendant was sentenced to a
term of 128 to 163 months' imprisonment and was given
credit for 1001 days that he had spent in confinement
August 2016, defendant sent the following handwritten letter
to the Clerk of Court:
August 24, 2016
To the Clerk of Court, Superior
I was sentence[d] August 23 2016 in Superior Court by [the
trial court], to serve 128 months to 163.
I would like to put the court on notice that I am appealing
the sentencing part of the sentence, not the guilty plea. I
would like to site [sic] that [the court] was rude, bias, and
personal in his rulings.
My lawyer Anna Kirby, the Assist. D.A. Joel Stadiem, and lead
Detective Kearney, all wanted to speak on my behalf.
But [the judge] did not allow anyone to be heard to where it
wouldn't make a differen[ce].
I also wanted to address the courts but wasn't given a
chance. I really feel like my constitutional rights [were]
violated for not allowing my attorney or myself, or people on
my behalf to stand and address the court.
I feel that I should have been sentenced in the mitigated
range instead of the presumptive. Angelo Jones
counsel was appointed for defendant on 2 September 2016. On
19 January 2017, defendant's appellate counsel filed a
petition in which counsel (1) acknowledged that
defendant's pro se letter to the Clerk of Court
stating his intention to "put the Court on notice"
of his appeal did not comply with the relevant rules of
appellate procedure, and (2) sought issuance of a writ of
certiorari in order to obtain review. On 15 February 2017,
the State filed a response opposing the issuance of the writ,
and a motion to dismiss defendant's appeal. Defendant
filed a reply to the State's motions on 24 February 2017.
Defendant's Right to Seek Review by Writ of
we address defendant's right to seek the issuance of a
writ of certiorari in order to obtain appellate review of the
sentencing proceeding conducted upon his entry of a plea of
guilty to the charge of attempted armed robbery. We conclude
that this Court has the authority to grant defendant's
petition asking us to issue a writ of certiorari, and we
grant his petition.
criminal defendant's right to appeal following his plea
of guilty is limited by N.C. Gen. Stat. § 15A-1444
(2015), which provides in relevant part that:
(a1) A defendant who has . . . entered a plea of guilty or no
contest to a felony, is entitled to appeal as a matter of
right the issue of whether his or her sentence is supported
by evidence introduced at the . . . sentencing hearing only
if the minimum sentence of imprisonment does not fall within
the presumptive range[.] . . . Otherwise, the defendant is
not entitled to appeal this issue as a matter of right but
may petition the appellate division for review of this issue
by writ of certiorari.
(a2) A defendant who has entered a plea of guilty or no
contest to a felony or misdemeanor in superior court is
entitled to appeal as a matter of right the issue of whether
the sentence imposed: (1) Results from an incorrect finding
of the defendant's prior record level[.] . . .; (2)
Contains a type of sentence disposition that is not
authorized . . . or; (3) Contains a term of imprisonment that
is for a duration not authorized[.] . . .
. . .
(e) Except as provided in subsections (a1) and (a2) of this
section . . . the defendant is not entitled to appellate
review as a matter of right when he has entered a plea of
guilty or no contest to a criminal charge in the superior
court, but he may petition the appellate division for review
by writ of certiorari. . . .
. . .
(g) Review by writ of certiorari is available when provided
for by this Chapter, by other rules of law, or by rule of ...