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State v. Rogers

Court of Appeals of North Carolina

November 7, 2017


          Heard in the Court of Appeals 5 September 2017.

         Appeal by defendant from judgments entered 22 September 2016 by Judge Jay D. Hockenbury in New Hanover County Nos. 15 CRS 2897, 50660 Superior Court.

          Attorney General Joshua H. Stein, Assistant Attorney General Joseph L. Hyde, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant.

          BRYANT, JUDGE.

         Where no procedural mechanism exists under Rule 21 to issue the discretionary writ of certiorari to review the trial court's judgment entered upon defendant's guilty plea, we exercise our discretion to invoke Rule 2 to suspend the rules and address the merits of defendant's appeal. Assuming arguendo the trial court erred in advising defendant that he had a right to appeal the court's denial of his pro se motion to dismiss, we hold defendant has failed to establish prejudicial error.

         On 2 January 2015 around 4:30 a.m., Blair Mincey observed defendant Israel John Rogers and another person breaking into her Honda Accord and called the Wilmington Police Department. An officer responded and observed defendant breaking into another vehicle, a GMC Yukon. Defendant fled. After a short chase, defendant was apprehended and placed under arrest.

         Defendant was indicted for two counts of breaking or entering a motor vehicle, one count of resisting a public officer, and for having attained habitual felon status. Subsequently, defendant "was sent up to Butner for an evaluation to see if he was competent to stand trial[.]" On 10 August 2016, the forensic psychiatrist who examined defendant reported that he believed defendant to be capable of proceeding.

         Defendant's cases came on for trial during the 19 September 2016 session of New Hanover County Superior Court, the Honorable Jay D. Hockenbury, Judge presiding. Defendant asked his attorney to file a motion to dismiss for lack of subject matter jurisdiction, but his attorney refused as she "felt the motions were frivolous and without merit[.]"[1] At defendant's request, his attorney filed a motion to withdraw.

         When defendant's case was called, the court addressed defendant directly, informing defendant that he would be permitted to file his motion to dismiss for lack of jurisdiction and put it in the record. The court also advised defendant that his attorney, as an officer of the court, believed his "motions [were] frivolous and it would be a waste of the Court's time for her to spend time to make a formal motion to dismiss based on subject matter, or that the Court has no jurisdiction over [defendant], and therefore, she is not going to file those motions." The trial court advised defendant he could give his attorney any documents that he wanted filed, and then denied defense counsel's motion to withdraw.

         The trial court received four handwritten documents from defendant. Defendant was allowed to "make any arguments that he want[ed] to make for the record, " and defendant did so. The trial court declared the documents provided no basis for dismissing the charges and denied defendant's pro se motion to dismiss. The State then offered a plea to defendant, which provided that he would plead guilty to all the charges, the offenses would be consolidated for judgment, and a sentence of twenty-three to forty months would be imposed.

         After a break, defendant personally addressed the court again, stating he had additional motions to make based on previously filed documents. Defendant said he wanted to make an additional motion concerning the "legitimacy of the claims brung [sic] against [him] before [he] could take the plea." The trial court responded by stating that

I made my ruling denying your motion to dismiss on those two grounds [(lack of subject matter jurisdiction and lack of in personam jurisdiction)]. So it's all in the record, and when this case is over with you have the right to appeal my ruling, and this is part of the - - part of the file that I'm sure will be looked at by someone as part of the appellate process.

(Emphasis added). Thereafter, defendant chose to accept the State's plea offer, and the trial court proceeded to conduct a plea colloquy with defendant-who entered an Alford plea-and to hear a factual basis for the plea from the State. The plea colloquy included the following: "THE COURT: Do you understand following a plea of guilty there are limitations on your right to appeal? DEFENDANT: Yes, Sir." Then, the trial court advised defendant of the maximum possible punishment-176 months plus 60 days.

         The trial court accepted defendant's Alford plea and ordered it recorded, finding that it was "the informed choice of the defendant, and the plea [was] made freely, voluntarily, and understandingly." The trial court sentenced defendant in accordance with the terms of his plea. Thereafter, defendant purported to file written notice of appeal on 28 September 2016. Subsequently, defendant filed a petition for writ of certiorari to this Court on 15 May 2017, and the State filed a motion to dismiss the appeal on 23 May 2017.


         As an initial matter, we must determine whether this appeal is properly before this Court.

         1. Appeal as of Right

         The State has filed a motion to dismiss on the basis that, per state statute, a defendant who pleads guilty generally does not have a right to appeal. N.C. Gen. Stat. § 15A-1444(e) (2015); see State v. Pimental, 153 N.C.App. 69, 72, 568 S.E.2d 867, 869 (2002) (noting that a ...

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