State v. Killette ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-26-2
Filed: 5 November 2019
Johnston County, No. 14 CRS 55188, 15 CRS 53276
STATE OF NORTH CAROLINA
v.
VAN BUREN KILLETTE, SR.
Appeal by defendant from judgment entered 6 July 2017 by Judge Thomas H.
Lock in Johnston County Superior Court. Originally heard in the Court of Appeals
20 September 2018, with opinion issued 2 October 2018. The defendant’s petition for
discretionary review pursuant to N.C. Gen. Stat. § 7A-31 was allowed by the Supreme
Court of North Carolina on 19 August 2019 for the limited purpose of remanding to
this Court for reconsideration.
Attorney General Joshua H. Stein, by Assistant Attorney General Nancy Dunn
Hardison, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy
Dickinson-Schultz, for defendant-appellant.
TYSON, Judge.
I. Factual Background
The facts giving rise to this appeal are set forth in detail in this Court’s prior
opinion. State v. Killette, ___ N.C. ___, 818 S.E.2d 646, 2018 WL 4701970 (2018)
(unpublished). Defense counsel filed a motion to suppress the items seized during
STATE V. KILLETTE
Opinion of the Court
the September 2014 search. The hearing on this motion was held 3 May 2017. At
the conclusion of the hearing, the parties consented to the court ruling out of session.
The court signed a written order denying Defendant’s motion to suppress on 6 July
2017, which was filed 7 July 2017.
Defense counsel also filed a motion to suppress the items seized from a June
2015 search. The hearing on this motion was held 18 May 2017. At the conclusion
of this hearing, the trial court orally denied the motion to suppress and entered a
written order memorializing its ruling filed on 7 June 2017.
On 6 July 2017, Defendant entered an Alford plea pursuant to a plea
arrangement with the State to the two counts of manufacturing methamphetamine,
alleged in 14 CRS 55188 and 15 CRS 53276. In exchange for the plea, the State
dismissed the remaining charges. The trial court consolidated the offenses into one
judgment, sentenced Defendant to a term of 120 to 156 months of imprisonment in
accordance with the terms of the plea arrangement. Defendant filed a handwritten
notice of appeal on 10 July 2017.
Defendant’s pro se notice of appeal was filed appealing “the decision made in
reference to the file number 14 CRS 055188 and 15 CRS 053276.” The notice is
addressed “To The Clerk of Superior Court” and does not reflect an appeal to this
Court nor show that the notice was served on the State. Nonetheless, appellate
entries were completed and appellate counsel was appointed. Defendant’s appellate
-2-
STATE V. KILLETTE
Opinion of the Court
counsel filed a petition for writ of certiorari to allow Defendant to seek review to this
Court.
II. Intent to Appeal Denial of Motion to Suppress Evidence
A. Direct Appeal
Defendant’s sole argument on appeal is that the trial court erred by denying
his motion to suppress the evidence obtained from the probation officer’s search in
September 2014. We dismiss Defendant’s attempted direct appeal for his failure to
preserve this issue and to provide notice to the State and trial court when he entered
his guilty plea.
The Supreme Court of North Carolina has held “when a defendant intends to
appeal from the denial of a suppression motion pursuant to [N.C. Gen. Stat. § 15A-
979(b)], he must give notice of his intention to the prosecutor and to the court before
plea negotiations are finalized; otherwise, he will waive the appeal of right provisions
of the statute.” State v. Tew, 326 N.C. 732, 735, 392 S.E.2d 603, 605 (1990) (citation
omitted) (emphasis supplied).
This Court has repeatedly held that when a defendant pleads guilty without
first notifying the State of the intent to appeal a suppression ruling, the defendant
“has not failed to take timely action,” and thus “this Court is without authority to
grant a writ of certiorari.” State v. Pimental, 153 N.C. App. 69, 77, 568 S.E.2d 867,
872, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Rather, as in other
-3-
STATE V. KILLETTE
Opinion of the Court
cases involving a guilty plea, the right to appeal was lost because the defendant
pleaded guilty, thereby waiving the right to appeal, and not because he failed “to take
timely action.” Id. at 75-77, 568 S.E.2d at 871-72. Under Appellate Rule 21, a petition
for a writ of certiorari may be allowed in this context only if the defendant’s right to
prosecute the appeal “has been lost by failure to take timely action.” N.C. R. App. P.
21(a).
B. Defendant’s Petition for Writ of Certiorari
Defendant has “petitioned this Court for certiorari. A petition for the writ must
show merit or that error was probably committed below. In re Snelgrove, 208 N.C.
670, 672, 182 S.E. 335. Certiorari is a discretionary writ, to be issued only for good
and sufficient cause shown. Womble v. Gin Company, 194 N.C. 577, 579, 140 S.E.
230.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959). See also State v.
Ross, 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016) (reversing grant of certiorari by
the Court of Appeals on defendant’s challenge of sufficiency of factual basis of a guilty
plea: “Court of Appeals may choose to grant such a writ to review some issues that
are meritorious but not others for which a defendant has failed to show good or
sufficient cause”).
In his petition for writ of certiorari, Defendant asserts the applicability of State
v. Davis, 237 N.C. App. 22, 763 S.E.2d 585, (2014). The opinion in Davis, with no
analysis and without citing or addressing prior binding authority in Tew or Pimental,
-4-
STATE V. KILLETTE
Opinion of the Court
cited a case with no precedential value and allowed a discretionary writ of certiorari
in a similar circumstance. Id. at 27, 763 S.E.2d at 589 (citing State v. Franklin, 224
N.C. App. 337, 736 S.E.2d 218, aff’d per curiam by equally divided court, 367 N.C.
183, 752 S.E.2d 143 (2013)).
Our Supreme Court has addressed this Court’s responsibility when faced with
two arguably inconsistent opinions from separate panels: we must follow the earlier
opinion. State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 133-34 (2004) (citing In re
Civil Penalty, 324 N.C. 373, 385, 379 S.E.2d 30, 37 (1989)). In Jones, our Supreme
Court held that, when faced with two or more inconsistent panel opinions on an issue,
this Court must follow the earliest opinion, because one panel of this Court cannot
overrule another. Id. The Supreme Court explained that although “a panel of the
Court of Appeals may disagree with, or even find error in, an opinion by a prior panel
and may duly note its disagreement or point out that error in its opinion, the panel
is bound by that prior decision until it is overturned by a higher court.” Id. Under
well-settled precedents, we disregard Davis and follow Tew, Pimental, and State v.
Harris as the earlier, binding precedents. See Jones, 358 N.C. at 487, 598 S.E.2d at
133-34.
In our view, Tew, Pimental, and Harris correctly apply the law. State v. Harris,
243 N.C. App. 137, 141, 776 S.E.2d 554, 556 (2015). In previous cases, our Supreme
Court and this Court have stressed the importance of a defendant’s prior notice of
-5-
STATE V. KILLETTE
Opinion of the Court
intent to appeal as a way to alert the State, during the plea bargaining process, that
the defendant may seek to appeal the denial of the motion to suppress. Tew, 326 N.C.
at 735, 392 S.E.2d at 605.
Once a defendant strikes the most advantageous bargain
possible with the prosecution, that bargain is incontestable
by the [S]tate once judgment is final. If the defendant may
first strike the plea bargain, “lock in” the State upon final
judgment, and then appeal a previously denied
suppression motion, [the defendant] gets a second bite at
the apple, a bite usually meant to be foreclosed by the plea
bargain itself.
State v. McBride, 120 N.C. App. 623, 626, 463 S.E.2d 403, 405 (1995).
Here, the wisdom of this reasoning is plainly evident. Defendant entered an
Alford plea pursuant to a plea arrangement with the State on the two counts of
manufacturing methamphetamine, 14 CRS 55188 and 15 CRS 53276, on 6 July 2017.
In exchange, the State dismissed the remaining charges. The trial court consolidated
the offenses into one judgment, again in accordance with the terms of the plea
arrangement.
Defendant knew his motions to suppress were denied. He received the full
benefit of his bargain and failed to place the State or the trial court on any notice he
intended to reserve the right to appeal. Defendant’s failure to provide the required
notice to the State and the trial court damages the integrity of the plea bargaining
process. If defendants can so easily circumvent the fairness requirement that the
-6-
STATE V. KILLETTE
Opinion of the Court
State be informed of a defendant’s intent to appeal prior to concluding the plea
agreement, the State may offer fewer plea bargains.
Even if Tew, Pimental and Harris were not binding on the issues here—and
they are—within any jurisdictional discretion to allow the petition, we would follow
and apply their reasoning. After reviewing the parties arguments, we apply binding
precedents, and deny Defendant’s petition for a writ of certiorari on this ground.
Unless Tew, Pimental, and Harris holdings are overturned by our Supreme
Court, this Court is bound to follow them in all future cases, even if one panel of our
Court failed to follow and to apply prior binding precedents, and purportedly relied
upon a fractured case with no precedential value. See Davis, 237 N.C. App. at 27, 763
S.E.2d at 589; see also In re Civil Penalty, 324 N.C. at 385, 379 S.E.2d at 37.
Other than recognizing this Court’s appellate jurisdiction to exercise our
discretion on a petition for writ of certiorari, nothing else in the holdings of either
State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015) or State v. Ledbetter, __ N.C. __,
814 S.E.2d 39 (2018) bears on the issues before us in this appeal. The fact this Court
possesses the jurisdictional power to allow in our discretion, does not compel us to do
so under Defendant’s burden to show prejudicial reversible error and the clearly
unmeritorious facts before us.
Applying Ross, Tew, Pimental and Harris, supra, Defendant’s petition shows
no basis to grant his requested discretionary writ. We deny the petition for a writ of
-7-
STATE V. KILLETTE
Opinion of the Court
certiorari to review the unpreserved and waived suppression rulings. Defendant’s
petition does not assert his “failure to take timely action.”
We dismiss Defendant’s purported appeal and deny Defendant’s petition for
writ of certiorari. It is so ordered.
DISMISSED.
Judge BERGER concurs.
Judge INMAN concurs with separate opinion.
-8-
No. COA18-26-2 – State v. Killette
Inman, Judge, concurring.
I concur in the majority’s decision to deny Defendant’s petition for certiorari
review upon reconsideration in light of the North Carolina Supreme Court’s decisions
in State v. Ledbetter, ___ N.C. ___, 814 S.E.2d 39 (2018), and State v. Stubbs, 368 N.C.
40, 770 S.E.2d 74 (2015). I write separately, however, because I respectfully disagree
with the majority’s holding that prior decisions of the Supreme Court and this Court,
relied upon by our earlier opinion in this case and in today’s opinion, are binding on
our exercise of discretion in this case.
The majority, relying on State v. Tew, 326 N.C. 732, 392 S.E.2d 603 (1990), and
State v. Pimental, 153 N.C. App. 69, 568 S.E.2d 867 (2002), writes that “[u]nder
Appellate Rule 21, a petition for a writ of certiorari may be allowed in this context
only if the defendant’s right to prosecute the appeal ‘has been lost by failure to take
timely action.’ ” Following Ledbetter, our exercise of discretion is not so limited, and
we are required to exercise our discretion independent of Appellate Rule 21.
Ledbetter held: “Rule 21 does not prevent the Court of Appeals from issuing writs of
certiorari or have any bearing upon the decision as to whether a writ of certiorari
should be issued.” ___ N.C. at ___, 814 S.E.2d at 43 (emphasis added). Nor do I agree
with the majority’s conclusion that Pimental and State v. Harris, 243 N.C. App. 137,
77 S.E.2d 554 (2015), are “binding . . . within any jurisdictional discretion to allow
the petition” after Ledbetter and Stubbs.
STATE V. KILLETTE
INMAN, J., concurring
Tew held that if a defendant fails to give notice of his intention to appeal a
denial of a motion to suppress before plea negotiations are finalized, he waives his
statutory right of appeal pursuant to N.C. Gen. Stat. § 15A-979(b) (2017). 326 N.C.
at 735, 392 S.E.2d at 605. Neither this holding, nor the statute it interpreted,
addresses a defendant’s right to petition for a writ of certiorari, or limit our exercise
of discretion provided by N.C. Gen. Stat. § 15A-1444(e) (2017). See Ledbetter, ___ N.C.
at ___, 814 S.E.2d at 43 (“Absent specific statutory language limiting the Court of
Appeals’ jurisdiction, the court maintains its jurisdiction and discretionary authority
to issue the prerogative writs, including certiorari.”).
In Pimental, this Court held that a defendant who failed to give notice of his
intention to appeal from a motion to suppress prior to accepting a plea bargain was
not entitled to a writ of certiorari because that circumstance did not fall within the
three enumerated situations outlined in Rule 21(a)(1); as a result, we held “this Court
does not have the authority to issue a writ of certiorari.” 153 N.C. App. at 77, 568
S.E.2d at 872. Our decision in Harris expressly relied on this language in denying a
defendant’s petition for certiorari as outside our “authority” in similar circumstances.
243 N.C. App. at 138, 776 S.E.2d at 555 (quoting Pimental, 153 N.C. App. at 77, 568
S.E.2d at 872). However, as stated above, our Supreme Court has since held that
Rule 21 does not limit, determine, or otherwise modify this Court’s “jurisdiction and
discretionary authority” to issue writs of certiorari. Ledbetter, ___ N.C. at ___, 814
2
STATE V. KILLETTE
INMAN, J., concurring
S.E.2d at 43; cf. State v. Thomsen, 369 N.C. 22, 27, 789 S.E.2d 639, 643 (2016)
(“[D]efendant argues that the Court of Appeals was not authorized by Rule 21 . . . to
issue the writ of certiorari . . . . But, as we explained in Stubbs, if a valid statute
gives the Court of Appeals jurisdiction to issue a writ of certiorari, Rule 21 cannot
take it away.” (citing Stubbs, 368 N.C. at 43-44, 770 S.E.2d at 76)).
In sum, while I agree that the analysis in the prior decisions cited by the
majority may be instructive to the exercise of our discretion when reviewing a petition
for certiorari review of an appeal following a guilty plea—and that Defendant’s
petition for writ of certiorari should be denied in our discretion—I disagree with the
conclusion that these prior decisions foreclose a full exercise of our authority and
discretion in reviewing Defendant’s petition in this case.
3