in the Court of Appeals 5 September 2017.
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.
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.
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.
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
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[.]" At defendant's request, his attorney
filed a motion to withdraw.
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.
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.
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
(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.
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
initial matter, we must determine whether this appeal is
properly before this Court.
Appeal as of Right
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