State v. Meadows , 371 N.C. 742 ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 400PA17
Filed 7 December 2018
STATE OF NORTH CAROLINA
v.
PATTY MEADOWS
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 806 S.E.2d 682 (2017), finding no error
after appeal from judgments entered on 7 and 8 April 2016 by Judge Gary M.
Gavenus in Superior Court, Madison County upon a jury verdict finding defendant
guilty following a trial before Judge R. Gregory Horne. Heard in the Supreme Court
on 2 October 2018.
Joshua H. Stein, Attorney General, by Daniel Snipes Johnson, Special Deputy
Attorney General, for the State.
Michael E. Casterline for defendant-appellant.
BEASLEY, Justice.
This case requires the Court to consider whether Rule 10(a)(1) of the North
Carolina Rules of Appellate Procedure precludes appellate review of sentencing
arguments not raised before the sentencing court. We conclude that defendant
waived her Eighth Amendment arguments by failing to raise them before the
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Opinion of the Court
sentencing court; defendant’s nonconstitutional sentencing issues were preserved for
appellate review despite her failure to lodge a contemporaneous objection, but are
nonetheless meritless. Accordingly, we modify and affirm the decision of the Court
of Appeals. As to defendant’s ineffective assistance claim, we hold that discretionary
review was improvidently allowed.
Following a jury trial, defendant Patty Meadows was convicted of one count
each of trafficking opium by sale, trafficking opium by delivery, and trafficking opium
by possession. All three counts arose from the same transaction, in which defendant
sold seventy-five oxycodone pills to a confidential informant. At trial, after the close
of all evidence, defendant sought emergency medical treatment, which prevented her
attendance at closing arguments and the jury charge. After deliberating for less than
an hour, the jury returned its verdict of guilty on all counts in defendant’s absence.
Noting that a defendant’s presence is required for sentencing, Judge R. Gregory
Horne continued the matter to the following day. The next day, defense counsel
produced a doctor’s note indicating that defendant was medically unable to be present
in court at that time. Judge Horne entered a written safekeeping order directing the
Sheriff of Madison County to “place the defendant . . . in the custody of the Warden
of Central Prison, Wake County, Raleigh, North Carolina for safekeeping pursuant
to [N.C.G.S. §] 162-39 until such time as [s]he is needed to face the charges held
against [her] in Court or Release Conditions have been satisfied.” After Judge Horne
entered the safekeeping order, Judge Gary M. Gavenus assumed the bench to conduct
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Opinion of the Court
the administrative session scheduled for that day. Later that afternoon, defendant
was brought to court and presented to Judge Gavenus for sentencing. Without
objection from defendant, Judge Gavenus conducted defendant’s sentencing hearing.
After hearing the State’s summary of the trial evidence and both parties’ arguments,
Judge Gavenus imposed a minimum sentence of seventy months’ imprisonment on
each count, with the sentences for two counts to be served concurrently and the third
sentence to be served consecutively to the first two.
Defendant appealed, arguing that: (1) defendant received ineffective
assistance of counsel; (2) by sentencing defendant, Judge Gavenus improperly
overruled Judge Horne’s safekeeping order; (3) Judge Gavenus abused his discretion
in imposing consecutive sentences on an elderly first offender for a single drug
transaction; and (4) defendant’s sentences are grossly disproportionate to her
offenses in violation of the Eighth Amendment to the United States Constitution.
The Court of Appeals found no error in defendant’s convictions and sentences,
concluding that defendant failed to preserve arguments related to her sentencing as
required by Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure and that
defendant was not denied effective assistance of counsel. State v. Meadows, ___ N.C.
App. ___, ___, 806 S.E.2d 682, 686-96 (2017). Defendant petitioned for discretionary
review of each issue, which this Court allowed on 9 May 2018. Meadows, ___ N.C.
___, 812 S.E.2d 847 (2018)
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Opinion of the Court
Defendant’s arguments relate mostly to the sentence imposed by Judge
Gavenus. As she argued before the Court of Appeals, defendant challenges her
sentence as an abuse of discretion, an illegal overruling of one superior court judge
by another, and a violation of the Eighth Amendment’s prohibition against cruel and
unusual punishments.
Despite her failure to voice any objection to her sentence or the sentencing
proceedings in the trial court, defendant contends she is entitled to raise these
arguments on appeal. Before the Court of Appeals, defendant relied on a line of cases
decided by that court holding that the issue preservation requirements of Rule
10(a)(1) of the North Carolina Rules of Appellate Procedure do not apply to errors
occurring during a sentencing hearing. The Court of Appeals disagreed, concluding
that Rule 10(a)(1) applies to sentencing hearings; accordingly, the Court of Appeals
held that defendant had waived her sentencing arguments. Meadows, ___ N.C. App.
at ___, 806 S.E.2d at 689-96. Before this Court, defendant now argues that sentencing
issues are statutorily preserved by N.C.G.S. § 15A-1446(d)(18) (2017); thus, no
contemporaneous objection is required.
Under the Constitution of North Carolina, this Court possesses “exclusive
authority to make rules of procedure and practice for the Appellate Division.” N.C.
Const. art. IV, § 13, cl. 2. Accordingly, this Court has promulgated Appellate Rule
10, which states:
In order to preserve an issue for appellate review, a party
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Opinion of the Court
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. . . . Any such
issue that was properly preserved for review by action of
counsel taken during the course of proceedings in the trial
tribunal by objection noted or which by rule or law was
deemed preserved or taken without any such action,
including, but not limited to, whether the judgment is
supported by the verdict or by the findings of fact and
conclusions of law, whether the court had jurisdiction over
the subject matter, and whether a criminal charge is
sufficient in law, may be made the basis of an issue
presented on appeal.
N.C. R. App. P. 10(a)(1). Thus, the Appellate Rules generally require that parties
take some action to preserve an issue for appeal. Id. Exceptions exist, however,
allowing a party to raise an issue on appeal that was not first presented to the trial
court.
This Court addressed one such scenario in State v. Canady, 330 N.C. 398, 410
S.E.2d 875 (1991). There, the defendant raised for the first time on appeal an alleged
error in the trial court’s finding of an aggravating factor to support an increased
sentence. Id. at 400, 410 S.E.2d at 877. We held that Rule 10(b)(1), the text of which
is now found in Rule 10(a)(1),1 did not apply to the case because the rule is “directed
to matters which occur at trial and upon which the trial court must be given an
Rule 10 was amended effective 1 October 2009, and certain provisions were changed
1
and subsections moved. Compare N.C. Rules of Appellate Procedure, 363 N.C. 902, 935-38
(2009), with N.C. Rules of Appellate Procedure, 287 N.C. 672, 698-702 (1975). Prior to the
2009 amendment, the language currently contained in subdivision (a)(1) was located in
subdivision (b)(1).
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opportunity to rule in order to preserve the question for appeal.” Id. at 401, 410
S.E.2d at 878.
The Canady opinion has inspired a string of decisions in the Court of Appeals
holding that Rule 10(a)(1) categorically does not apply to errors committed during a
sentencing hearing. See State v. Pettigrew, 204 N.C. App. 248, 258, 693 S.E.2d 698,
704-05, appeal dismissed, 364 N.C. 439, 706 S.E.2d 467 (2010); State v. Curmon, 171
N.C. App. 697, 703-04, 615 S.E.2d 417, 422-23 (2005); State v. Hargett, 157 N.C. App.
90, 92-93, 577 S.E.2d 703, 705 (2003). To derive such a categorical rule from Canady,
however, one must ignore the opinion’s rationale. In that case, we considered the
purpose of Rule 10(a)(1): “to require a party to call the court’s attention to a matter
upon which he or she wants a ruling before he or she can assign error to the matter
on appeal.” Canady, 330 N.C. at 401, 410 S.E.2d at 878. Thus, we noted that the
rule discourages gamesmanship; a party may not simply “allow evidence to be
introduced or other things to happen during a trial as a matter of trial strategy and
then assign error to them if the strategy does not work.” Id. at 402, 410 S.E.2d at
878. Rather than create a categorical rule, we concluded that the danger of
gamesmanship was not present in Canady and held that no contemporaneous
objection was required to preserve the issue for appellate review in that case. Id. at
402, 410 S.E.2d at 878 (“The defendant did not want the court to find the aggravating
factor, and the court knew or should have known it. This is sufficient to [preserve
the issue for appellate review].”).
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Opinion of the Court
Here, defendant requested that all three sentences be consolidated, which
would have resulted in a sentence of seventy to ninety-three months’ imprisonment.
Defense counsel argued in support of the requested sentence, noting defendant’s
advanced age, poor health, and previously clean criminal record. After hearing
arguments, Judge Gavenus consolidated only two of the three sentences, resulting in
a 140-month minimum term of imprisonment. As in Canady, the sentencing court
“knew or should have known” defendant sought the minimum possible sentence.
Accordingly, defendant need not have voiced a contemporaneous objection to preserve
her nonconstitutional sentencing issues for appellate review.
Defendant’s sentencing issues are also preserved by statute. In N.C.G.S.
§ 15A-1446(d) (2017), the General Assembly enumerated a list of issues it deems
appealable without preservation in the trial court. One such issue is an argument
that “[t]he sentence imposed was unauthorized at the time imposed, exceeded the
maximum authorized by law, was illegally imposed, or is otherwise invalid as a
matter of law.” Id. § 15A-1446(d)(18). Although this Court has held several
subdivisions of subsection 15A-1446(d) to be unconstitutional encroachments on the
rulemaking authority of the Court,2 subdivision (18) is not one of them. In State v.
2See State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987) (holding N.C.G.S.
§ 15A-1446(d)(5) unconstitutional because its provision that errors based on insufficiency of
evidence are reviewable without objection at trial conflicted with Appellate Rule 10(b)(3),
which prohibited a defendant from “assign[ing] as error the insufficiency of the evidence to
prove the crime charged unless he moves to dismiss the action, or for judgment as in case of
nonsuit, at trial”); State v. Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790 (1983) (holding
unconstitutional N.C.G.S. § 15A-1446(d)(13), which allowed for appellate review of errors in
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Opinion of the Court
Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010), the Court explained that a
statutory provision governing the preservation of issues for purposes of appellate
review is unconstitutional only if it conflicts with a “specific provision[ ] of our
appellate rules rather than the general rule stated in Rule of Appellate Procedure
10(a).” Because no such conflict existed, the Court upheld
subdivision 15A-1446(d)(18). Accordingly, defendant’s nonconstitutional sentencing
arguments are preserved by statute.
Nonetheless, although it was error for the Court of Appeals to decline to
address defendant’s sentencing arguments, defendant is not entitled to relief on
appeal because those arguments are meritless.
Defendant’s argument that Judge Gavenus “overruled” Judge Horne’s
safekeeping order by sentencing her is unavailing. First, a judge other than the trial
judge may conduct a defendant’s sentencing hearing. State v. Sauls, 291 N.C. 253,
263-64, 230 S.E.2d 390, 396 (1976), cert. denied, 431 U.S. 916, 53 L. Ed. 2d 226 (1977).
Furthermore, neither the order nor Judge Horne’s oral remarks indicated that he
wished to retain jurisdiction over the matter or to delay sentencing. The order merely
the jury charge without an objection having been raised at trial, despite then-Appellate Rule
10(b)(2)’s provision to the contrary); State v. Elam, 302 N.C. 157, 159-61, 273 S.E.2d 661, 663-
64 (1981) (holding unconstitutional N.C.G.S. § 15A-1446(d)(6), which provided that a
defendant may appeal based on an argument made for the first time on appeal that the
defendant “was convicted under a statute that is in violation of the Constitution of the United
States or the Constitution of North Carolina,” although Appellate Rule 14(b)(2) required that
a constitutional challenge be “timely raised (in the trial tribunal if it could have been, in the
Court of Appeals if not)”).
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stated that defendant was to be held in custody “until such time as [she] is needed to
face the charges held against [her] in Court or Release Conditions have been
satisfied.” From the bench, Judge Horne stated that the Department of Adult
Correction should “evaluate [defendant’s] situation until such time as sentencing can
be scheduled and entered before a court of competent jurisdiction.” (emphasis added).
Judge Horne could have, but did not, say defendant should be held “until I can
sentence her” or “until she can be brought before me for sentencing.” Instead, Judge
Horne’s oral remarks and written order indicate an awareness that defendant might
be sentenced by some other judge, so long as that judge presided over a court of
competent jurisdiction.
Defendant’s argument that Judge Gavenus abused his discretion in sentencing
her is similarly meritless. A sentence “within the statutory limit will be presumed
regular and valid,” unless “the record discloses that the court considered irrelevant
and improper matter[s] in determining the severity of the sentence.” State v.
Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987) (citing and quoting State v.
Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977)). Defendant here states that
Judge Gavenus must have been influenced by defendant’s decision to take her case
to trial because there is no other explanation for the harshness of the imposed
sentence. Defendant’s conclusory accusation lacks any support in the record.
Because there is no reason to believe Judge Gavenus was influenced by irrelevant or
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improper considerations, the within-limits sentence imposed here is presumed
proper.
Although defendant’s nonconstitutional sentencing issues are preserved
without contemporaneous objection consistent with Canady and N.C.G.S. § 15A-
1446(d), constitutional issues are not. Rule 14(b)(2) of the North Carolina Rules of
Appellate Procedure requires that a constitutional issue must have been “timely
raised (in the trial tribunal if it could have been, in the Court of Appeals if not)” as a
prerequisite to appellate review in this Court. Further, this Court has consistently
held that “[c]onstitutional questions not raised and passed on by the trial court will
not ordinarily be considered on appeal.” State v. Davis, 364 N.C. 297, 301, 698 S.E.2d
65, 67 (2010) (quoting State v. Tirado, 358 N.C. 551, 571, 599 S.E.2d 515, 529 (2004),
cert. denied sub nom. Queen v. North Carolina, 544 U.S. 909, 161 L. Ed. 2d 285(2005)). This is true even when a sentencing issue is intertwined with a constitutional
issue. See, e.g., id. at 301-02, 698 S.E.2d at 67 (holding that the defendant’s
constitutional double jeopardy argument was waived for failure to object at trial);
State v. Madric, 328 N.C. 223, 231, 400 S.E.2d 31, 36 (1991) (same). Because
defendant failed to argue to the sentencing court that the sentence imposed violates
the Eighth Amendment, she may not raise that argument on appeal.
For the reasons stated, we hold that defendant waived her Eighth Amendment
argument by failing to raise it before the sentencing court. Moreover, with regard to
defendant’s nonconstitutional sentencing arguments, we conclude that they were
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preserved for appellate review, but are meritless. Finally, we hold that discretionary
review was improvidently allowed as to defendant’s ineffective assistance claim.
MODIFIED AND AFFIRMED IN PART; DISCRETIONARY REVIEW
IMPROVIDENTLY ALLOWED IN PART.
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