State v. Ledbetter ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-414
Filed: 3 November 2015
Rowan County, No. 13 CRS 50063
STATE OF NORTH CAROLINA
v.
DONNA HELMS LEDBETTER
Appeal by defendant from judgment entered 27 October 2014 by Judge Jeffrey
P. Hunt in Rowan County Superior Court. Heard in the Court of Appeals 8 October
2015.
Attorney General Roy Cooper, by Assistant Attorney General Ashleigh P.
Dunston, for the State.
Meghan A. Jones, for defendant-appellant.
TYSON, Judge.
Donna Helms Ledbetter (“Defendant”) appeals from judgment entered after
she pleaded guilty to driving while impaired. Defendant does not have a statutory
right to appeal the issue she raised. Rule 21 of the North Carolina Rules of Appellate
Procedure does not set forth the grounds Defendant asserts to issue the requested
writ. We decline to suspend the Rules of Appellate Procedure to exercise our
jurisdiction under N.C. Gen. Stat. § 1444(e) to issue the writ. We deny Defendant’s
petition for writ of certiorari and dismiss the appeal.
STATE V. LEDBETTER
Opinion of the Court
I. Background
Around 7:30 p.m. on 1 January 2013, Rowan County Sheriff’s Deputy Daniel
Myers (“Deputy Myers”) was called to the Enochville Food Center in Kannapolis,
North Carolina. Upon arrival, Deputy Myers observed Defendant seated behind the
wheel of the car, “slumped over,” and apparently unconscious. The keys were in the
ignition. Deputy Myers knocked on the window and instructed Defendant to exit the
vehicle. Deputy Myers never observed Defendant drive the vehicle.
Deputy Myers conducted three separate field sobriety tests on Defendant: (1)
the Horizontal Gaze Nystagmus test (HGN test); (2) the one-leg stand test; and (3)
the walk-and-turn test. During the HGN test, Deputy Myers had to remind
Defendant to keep her head still several times. The HGN test revealed five out of six
indicators for impairment. During the one-leg stand test, Deputy Myers had to twice
tell Defendant to not start before being told to do so, and to keep her hands by her
side.
During the walk-and-turn test, Defendant lost her balance a couple of times,
used her arms to balance repeatedly, and missed the heel-to-toe twice. Defendant
made a 560-degree turn, rather than a 360-degree turn, and proceeded to walk
backwards towards Deputy Myers. Deputy Myers administered an Alco-Sensor
portable breath test to Defendant, which registered a negative reading for alcohol.
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Opinion of the Court
Defendant admitted she had taken Xanax and Oxymorphone about an hour
prior to her encounter with Deputy Myers. Based upon his interactions with
Defendant, Deputy Myers concluded Defendant was appreciably impaired and placed
her under arrest for driving while impaired.
Defendant was transported to the Rowan Regional Medical Center for a blood
test. Following the blood test, Defendant was transported to the Rowan County
Magistrate’s Office, where she appeared before Magistrate Todd Wyrick (“Magistrate
Wyrick”). After speaking with Deputy Myers, Magistrate Wyrick found probable
cause to believe Defendant was a danger to herself or others.
The detention order contains a findings of fact section, where the magistrate
enters why Defendant posed a danger to herself or others. Magistrate Wyrick simply
typed “BLOOD TEST” in this section. Magistrate Wyrick found probable cause to
detain Defendant as an impaired driver.
The detention order required Defendant remain in custody for a 12-hour period
or until released into the custody of a sober adult. Magistrate Wyrick failed to
instruct Defendant to fill out an “implied consent offense notice” form (“Form AOC-
271”), which advises a defendant of her right to have “other persons appear at the jail
to observe [her] condition.”
After her appearance before Magistrate Wyrick, Defendant was transported to
the Rowan County Jail. Defendant used a phone at the jail to call several friends and
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Opinion of the Court
acquaintances and asked them to come to the jail to allow her to be released into their
custody. Defendant was released into the custody of Kenneth Paxton at 12:24 a.m.
on 2 January 2013.
Defendant filed a motion to dismiss the charges on 23 December 2013. She
argued the State violated N.C. Gen. Stat. § 20-38.4 and State v. Knoll, 322 N.C. 535,
369 S.E.2d 558 (1988), when Magistrate Wyrick: (1) failed to provide sufficient
findings of fact to show Defendant was a danger to herself and others; and (2) failed
to provide Defendant a copy of Form AOC-271 advising of her right to have witnesses
observe her demeanor at the jail. The trial court denied Defendant’s motion on 20
October 2014.
Following the court’s denial of her motion, Defendant entered a plea of guilty.
The plea arrangement states “[Defendant] expressly retains the right to appeal the
Court’s denial of her motion to dismiss/suppress her Driving While Impaired charge
in this case and her plea of guilty is conditioned based on her right to appeal that
decision[.]” Defendant appeals.
II. Issue
Defendant asserts the trial court erred in denying her motion to dismiss. She
argues a substantial violation occurred during the crucial period in which she could
have gathered witnesses on her behalf and she was deprived of her statutory and
constitutional rights of access to witnesses.
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STATE V. LEDBETTER
Opinion of the Court
III. Right to Appeal
The State filed a motion to dismiss Defendant’s appeal. It argues Defendant
has no statutory right to appeal the trial court’s denial of her motion to dismiss when
a plea of guilty has been entered. We agree.
A defendant’s right to appeal in a criminal proceeding in North Carolina “is
purely a creation of state statute.” State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d
867, 869, disc. rev. denied, 356 N.C. 442, 573 S.E.2d 163 (2002) (citations omitted);
N.C. Gen. Stat. § 15A-1444 (2013). Absent express statutory authority, a criminal
defendant does not have a state right to appeal from a judgment entered upon her
conviction under N.C. Gen. Stat. § 15A-1444. Id.; see also State v. Ahern, 307 N.C.
584, 605, 300 S.E.2d 689, 702 (1989) (quoting N.C. Gen. Stat. § 15A-1444(e)) (noting
that except as provided in N.C. Gen. Stat. §§ 15A-1444 and 15A-979, a defendant has
no right of appeal from the entry of a guilty plea). No federal constitutional right
obligates state courts to hear appeals in criminal proceedings. E.g., Abney v. United
States, 431 U.S. 651, 656, 52 L. Ed. 2d 651, 657 (1977).
A. N.C. Gen. Stat. §§ 15A-1444 and 15A-979(b)
The circumstances under which a defendant may appeal a guilty plea and
conviction are found in N.C. Gen. Stat. §§ 15A-1444 and 15A-979(b). A defendant
who has pleaded guilty to a misdemeanor, as here, is entitled to appeal as a matter
of right whether the sentence imposed:
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Opinion of the Court
(1) Results from an incorrect finding of the defendant’s
prior record level under G.S. 15A-1340.14 or the
defendant’s prior conviction level under G.S. 15A-1340.21;
(2) Contains a type of sentence disposition that is not
authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the
defendant’s class of offense and prior record or conviction
level; or
(3) Contains a term of imprisonment that is for a duration
not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for
the defendant’s class of offense and prior record or
conviction level.
N.C. Gen. Stat. § 15A-1444(a2) (2013).
Defendant attempts to appeal as a matter of right from an order denying her
motion to dismiss prior to her guilty plea. This issue is not listed as one of the grounds
for appeal of right set forth in N.C. Gen. Stat. § 15A-1444. Defendant contends that
an appeal of right is proper pursuant to N.C. Gen. Stat. § 15A-979(b), which provides:
An order finally denying a motion to suppress evidence may
be reviewed upon an appeal from a judgment of conviction,
including a judgment entered upon a plea of guilty.
N.C. Gen. Stat. § 15A-979(b) (2013) (emphasis supplied). We disagree.
In this case, Defendant filed a “MOTION TO DISMISS DWI CHARGE.” In
her motion to dismiss, Defendant stated “pursuant to N.C. Gen. Stat. § 15A-954,
[Defendant] moves the Court for an Order dismissing” the charge of DWI.
While the trial court’s order denying Defendant’s motion was styled “order on
motion to suppress Defendant’s DWI Charge,” and Defendant’s transcript of plea
purported to reserve a right to appeal the Court’s denial of her “motion to
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Opinion of the Court
dismiss/suppress,” a review of the record and the transcripts of Defendant’s motion
hearing and plea hearing reveals the only motion filed by Defendant was the motion
to dismiss. Defendant’s motion specifically cited N.C. Gen. Stat. § 15A-954, North
Carolina’s motion to dismiss statute. Defendant did not file a motion to suppress and
has no right of appeal after denial of her motion to dismiss and entering a plea of
guilty. N.C. Gen. Stat. §§ 15A-1444 and 15A-979(b).
The facts of this case are substantially similar to the circumstances presented
in State v. Rinehart, 195 N.C. App 774, 673 S.E.2d 769 (2009). In Rinehart, the
defendant made two pre-trial motions to dismiss. 195 N.C. App at 775, 673 S.E.2d at
770. Both were denied. Id. Following the denial of the motions to dismiss, the
defendant entered a plea of guilty, while reserving the right to appeal the denial of
his motions to dismiss. Id. On appeal, the defendant argued the trial court erred in
denying his motions to dismiss. Id.
Our Court held the defendant did not have a right to appeal from a denial of
his motions to dismiss after his plea of guilty was entered. See id. at 776, 673 S.E.2d
at 770-71; see also id. at 776 n.1, 673 S.E.2d at 771 n.1. The holding in Rinehart was
later characterized, in relevant part, as follows:
The defendant in Rinehart appealed only from motions to
dismiss; he did not additionally attempt to appeal from any
order for which an appeal of right existed. Since the
Rinehart defendant did not attempt to appeal from any
order for which an appeal of right existed, his appeal was
appropriately dismissed.
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STATE V. LEDBETTER
Opinion of the Court
State v. White, 213 N.C. App. 181, 185-86, 711 S.E.2d 862, 865 (2011).
B. State v. Chavez and State v. Labinski
Our Court has long held a defendant is limited to a right to appeal from a
judgment entered following a guilty plea as prescribed in N.C. Gen. Stat. §§ 15A-1444
and 15A-979(b). See, e.g., State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678
(2004); State v. Jeffery, 167 N.C. App 575, 578, 605 S.E.2d 672, 674 (2004); State v.
Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47 (2003).
Defendant argues the State’s motion to dismiss her appeal should be denied.
She cites two cases in which this Court reviewed the trial court’s denial of a
defendant’s motion to dismiss based on a Knoll violation following a plea of guilty.
See State v. Chavez, ___ N.C. App. ___, 767 S.E.2d 581 (2014); State v. Labinski, 188
N.C. App. 120, 654 S.E.2d 740 (2008). The Court in both the Chavez and Labinski
cases reached the merits of the respective defendant’s appeals without any discussion
of, or citation to, N.C. Gen. Stat. §§ 15A-1444, 15A-979(b), or our precedents in Carter,
Jeffery, or Jamerson.
We are bound by the decisions of our Supreme Court and by prior decisions of
another panel of our Court addressing the same question, unless overturned by an
intervening decision from a higher court. In re Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989). Where apparent inconsistency exists between precedents of this
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STATE V. LEDBETTER
Opinion of the Court
Court, the oldest controlling case prevails. State v. Harris, ___ N.C. App. ___, ___, 776
S.E.2d 554, 556 (2015).
We are required to follow longstanding precedents, which hold a defendant’s
right to appeal from a judgment following a plea of guilty is limited to the grounds
enumerated in N.C. Gen. Stat. §§ 15A-1444 and 15A-979(b). Carter, 167 N.C. App. at
584, 605 S.E.2d at 678; Jeffery, 167 N.C. App at 578, 605 S.E.2d at 674; Jamerson,
161 N.C. App. at 528-29, 588 S.E.2d at 546-47. Under these facts, Defendant does
not have a statutory right to appeal from the trial court’s denial of her motion to
dismiss followed by a plea of guilty. Defendant’s appeal is dismissed.
IV. Writ of Certiorari
Defendant petitioned this Court for a writ of certiorari to review the trial
court’s denial of her motion to dismiss. Defendant contends this Court has authority
to issue the writ of certiorari pursuant to N.C. R. App. P. 21 and N.C. Gen. Stat. §
15A-1444(e). The Rules of Appellate Procedure do not allow us to issue the requested
writ under these facts. We decline to invoke Appellate Rule 2 to suspend Appellate
Rule 21 to exercise our discretion pursuant to N.C. Gen. Stat. § 15A-1444(e) to grant
the writ.
Although N.C. Gen. Stat. § 15A-1444(e) states a defendant who pleads guilty
to a criminal offense “may petition the appellate division for review by writ of
certiorari,” this Court’s authority to issue writs of certiorari is circumscribed by the
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Opinion of the Court
North Carolina Rules of Appellate Procedure. Appellate Rule 21(a)(1) limits the
Court’s ability to grant petitions for writ of certiorari to the following situations: (1)
“when the right to prosecute an appeal has been lost by failure to take timely action;”
(2) “when no right of appeal from an interlocutory order exists;” or (3) to “review
pursuant to [N.C. Gen. Stat.] § 15A-1422(c)(3) of an order of the trial court ruling on
a motion for appropriate relief.” N.C. R. App. P. 21(a)(1) (2015); see State v. Stubbs,
___ N.C. ___, ___, 770 S.E.2d 74, 76 (2015) (noting a writ of certiorari is appropriate
to review the State’s appeal of a trial court’s grant of the defendant’s motion for
appropriate relief pursuant to N.C. Gen. Stat. § 15A-1422(c)(3)). Here, Defendant’s
petition under N.C. Gen. Stat. § 15A-1444(e) does not invoke any of the three grounds
set forth in Appellate Rule 21 to enable this Court to issue the writ under this rule.
N.C. R. App. P. 21(a)(1).
“In considering [A]ppellate Rule 21 and N.C. Gen. Stat. § 15A-1444, this Court
has reasoned that since the appellate rules prevail over conflicting statutes, we are
without authority to issue a writ of certiorari except as provided in [Appellate] Rule
21.” State v. Smith, 193 N.C. App. 739, 742, 668 S.E.2d 612, 614 (2008); see also State
v. Nance, 155 N.C. App. 773, 774, 574 S.E.2d 692, 693 (2003); Pimental, 153 N.C. App.
at 73-74, 568 S.E.2d at 870; State v. Dickson, 151 N.C. App. 136, 137-38, 564 S.E.2d
640, 640-41 (2002).
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STATE V. LEDBETTER
Opinion of the Court
These holdings are rooted in precedents from our Supreme Court. See State v.
Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790 (1983) (noting because rules of
practice and procedure are “promulgated by the Supreme Court pursuant to its
exclusive authority under the Constitution of North Carolina, Article IV, Section
13(2),” where a statute is in conflict with an appellate rule, “the statute must fail.”);
see also State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (striking down
Rule of Evidence 103(a)(2) “to the extent it conflicts with Rule of Appellate Procedure
10(b)(1)”).
A. Suspension of Rule 21(a)(1)
Precedents from our Supreme Court and this Court issued a writ of certiorari
in circumstances not set forth by Appellate Rule 21(a)(1). See Ahern, 307 N.C. at 605,
300 S.E.2d at 702; State v. Bolinger, 320 N.C. 596, 601-02, 359 S.E.2d 459, 462 (1987);
State v. O’Neal, 116 N.C. App. 390, 394-95, 448 S.E.2d 306, 310, disc. rev. denied, 338
N.C. 522, 452 S.E.2d 821 (1994); see also State v. Demaio, 216 N.C. App. 558, 563-64,
716 S.E.2d 863, 866-67 (2011); State v. Blount, 209 N.C. App. 340, 345, 703 S.E.2d
921, 925 (2011); State v. Keller, 198 N.C. App. 639, 641-42, 680 S.E.2d 212, 213-14
(2009); State v. Carriker, 180 N.C. App. 470, 471, 637 S.E.2d 557, 558 (2006); State v.
Carter, 167 N.C. App. 582, 585, 605 S.E.2d 676, 678 (2004); State v. Rhodes, 163 N.C.
App. 191, 193-94, 592 S.E.2d 731, 732-33 (2004).
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Opinion of the Court
In Ahearn, the defendant pleaded guilty to felonious child abuse and voluntary
manslaughter and filed an appeal. Ahearn, 307 N.C. at 601, 300 S.E.2d at 699.
Ahearn argued no factual basis was shown to support his plea of guilty to felonious
child abuse. Id. at 605, 300 S.E.2d at 702.
Our Supreme Court cited N.C. Gen. Stat. § 15A-1444(e), and recognized a
defendant who has pleaded guilty has no right of appeal, except as provided in N.C.
Gen. Stat. §§ 15A-1444 and 15A-979. Id. Defendant’s argument was not a ground
enumerated in either N.C. Gen. Stat. §§ 15A-1444 or 15A-979. Id. The Court
reasoned “if we are to consider this assignment of error, we must treat it as a petition
for writ of certiorari, which we do.” Id.
The Court then reviewed the merits of the defendant’s argument through a
writ of certiorari. Id. at 605-07, 300 S.E.2d at 702-03. The Supreme Court in Ahearn
did not cite nor discuss Appellate Rule 21. See id. at 593-608, 300 S.E.2d at 695-704.
In Bolinger, the defendant contended the trial judge violated N.C. Gen. Stat. §
15A-1022 by accepting his guilty plea. Bolinger, 320 N.C. at 601, 359 S.E.2d at 462.
Our Supreme Court held “defendant is not entitled as a matter of right to appellate
review of his contention that the trial court improperly accepted his guilty plea.” Id.
The Court further held that “[d]efendant may obtain appellate review of this issue
only upon grant of a writ of certiorari.” Id. Defendant Bolinger failed to petition the
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Opinion of the Court
Court for a writ of certiorari, and the Court nonetheless elected to review the merits
of the defendant’s argument. Id. at 601-02, 359 S.E.2d at 462.
Our Supreme Court did not cite nor address Appellate Rule 21 in either Ahern
or Bolinger. The Court stated: “Neither party to this appeal appears to have
recognized the limited bases for appellate review of judgments entered upon pleas of
guilty. For this reason we nevertheless choose to review the merits of defendant’s
contention.” Id. In cases which precede Bolinger, our Supreme Court has specifically
stated where a conflict exists between the General Statutes and the Appellate Rules,
the Appellate Rules control. Bennett, 308 N.C. at 535, 302 S.E.2d at 790; State v.
Elam, 302 N.C. 157, 160-61, 273 S.E.2d 661, 664 (1981).
In O’Neal, defendant pleaded guilty to second-degree murder and received a
life sentence. O’Neal, 116 N.C. App. at 391, 448 S.E.2d at 308. Defendant argued,
inter alia, the trial court erred in denying his pretrial motion for further mental
evaluation. Id. at 394, 448 S.E.2d at 310. This Court in O’Neal stated: “[g]enerally, a
defendant who has entered a plea of guilty to a felony is not entitled to appellate
review as a matter of right.” Id. at 394-95, 448 S.E.2d at 310 (citing Ahearn, 307 N.C.
at 605, 300 S.E.2d at 702; N.C. Gen. Stat. § 15A-1444).
After recognizing defendant did not have a right to appeal the issue he argued,
the Court stated defendant “may petition the appellate division for review by writ of
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Opinion of the Court
certiorari.” Id. at 395, 448 S.E.2d at 310 (quoting N.C. Gen. Stat. § 15A-1444(e)). The
Court stated:
[I]n the present case where defendant pled guilty, we may
not consider this assignment of error unless we treat his
appeal as a writ of certiorari with respect to this
assignment of error. Given the life sentence imposed upon
defendant, we elect to treat the appeal as a petition for a
writ of certiorari.
Id. This Court issued the writ of certiorari and reviewed the merits of the defendant’s
appeal. Id. As in Ahearn and Bolinger, this Court in O’Neal did not cite nor discuss
Appellate Rule 21. Id. at 391-96, 488 S.E.2d at 308-11.
N.C. Gen. Stat. § 15A-1444(e) clearly grants jurisdiction to the appellate courts
to issue writs of certiorari to review the merits of defendant’s argument, when no
right of appeal exists following a plea of guilty pursuant to N.C. Gen. Stat. §§ 15A-
1444(a1)-(a2). We recognize an apparent tension when comparing N.C. Gen. Stat. §
15A-1444(e), which grants appellate courts’ jurisdiction to issue writs of certiorari,
and Appellate Rule 21, which limits this Court’s ability to grant such writs under the
three specific grounds, none of which are applicable here. N.C. R. App. P. 21.
In neither Ahearn nor Bolinger did our Supreme Court cite to or address the
requirements of Appellate Rule 21. In cases where this Court has issued the writ of
certiorari to review issues surrounding guilty pleas under N.C. Gen. Stat. § 15A-
1444(e), this Court also did not cite nor analyze the three grounds to issue the writ
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Opinion of the Court
set forth in Appellate Rule 21 to determine whether they applied to the facts of the
case. See e.g., O’Neal, 116 N.C. App. at 395, 448 S.E.2d at 310.
Other panels of this Court allowed certiorari by citing Bolinger and reached
the merits of the defendants’ arguments pursuant to N.C. Gen. Stat § 15A-1444(e) for
grounds not set forth in N.C. Gen. Stat. § 15A-1444(a) or Appellate Rule 21. See, e.g.,
Rhodes, 163 N.C. App. at 193, 592 S.E.2d at 732-33 (holding this Court could issue
the writ of certiorari to review the defendant’s challenge to the trial court’s
procedures employed in accepting his guilty plea); Demaio, 216 N.C. App. at 563-64,
716 S.E.2d at 866-67 (holding this Court could issue the writ of certiorari to review
the defendant’s argument that his plea was not the product of informed choice); see
also Keller, 198 N.C. App. at 641, 680 S.E.2d at 213; Carter, 167 N.C. App. at 585,
605 S.E.2d at 678.
B. Appellate Rule 2
Although the aforementioned cases do not cite nor discuss Appellate Rule 2,
Rule 2 gives this Court the authority to suspend the limits of the Rules of Appellate
Procedure:
To prevent manifest injustice to a party, or to expedite
decision in the public interest, either court of the appellate
division may, except as otherwise expressly provided by
these rules, suspend or vary the requirements or provisions
of any of these rules in a case pending before it upon
application of a party or upon its own initiative, and may
order proceedings in accordance with its directions.
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Opinion of the Court
N.C. R. App. P. 2. The Appellate Rules may be suspended as long as such suspension
does not enlarge the jurisdiction of the Court. N.C. R. App. P. 1(c) (noting the Rules
of Appellate Procedure “shall not be construed to extend or limit the jurisdiction of
the courts of the appellate division as that is established by law”); see also Bailey v.
North Carolina, 353 N.C. 142, 157, 540 S.E.2d 313, 323 (2000) (citations omitted)
(noting “suspension of the appellate rules under Rule 2 is not permitted for
jurisdictional concerns”).
The plain language of Appellate Rule 2 “grants this Court the discretion to
suspend appellate rules either ‘upon application of a party’ or ‘upon its own
initiative.’” Bailey, 353 N.C. at 157, 540 S.E.2d at 323. Appellate Rule 2 “relates to
the residual power of our appellate courts to consider, in exceptional circumstances,
significant issues of importance in the public interest, or to prevent injustice which
appears manifest to the Court and only in such instances.” Steingress v. Steingress,
350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999). This Court’s discretionary exercise
to invoke Rule 2 is “intended to be limited to occasions in which a ‘fundamental
purpose’ of the appellate rules is at stake, which will necessarily be ‘rare occasions.’”
State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) (citations omitted).
On the record before us, Defendant has not demonstrated, and we do not find,
the exceptional circumstances necessary to invoke Appellate Rule 2. We decline to
suspend Appellate Rule 21(a)(1) pursuant to Appellate Rule 2 to exercise our
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Opinion of the Court
discretionary review of Defendant’s petition for writ of certiorari pursuant to N.C.
Gen. Stat. § 15A-1444(e).
We are bound by decisions of the Supreme Court of North Carolina. See
Cannon v. Miller, 313 N.C. 324, 324, 327 S.E.2d 888, 888 (1985) (holding the Court of
Appeals has a “responsibility to follow” decisions of the Supreme Court, “until
otherwise ordered” by our Supreme Court). Likewise, a subsequent panel of this
Court has no authority to overrule a previous panel on the same issue. In re Civil
Penalty, 324 N.C. at 384, 379 S.E.2d at 37. We must follow our Supreme Court’s
holdings in Bennett and Oglesby that the appellate rules promulgated by our Supreme
Court under constitutional authority prevail over conflicting general statutes,
Bennett, 308 N.C. at 535, 302 S.E.2d at 790; Oglesby, 361 N.C. at 554, 648 S.E.2d at
821, and this Court’s oldest precedent ruling on the issue. E.g., Smith, 193 N.C. App.
at 742, 668 S.E.2d at 614; Nance, 155 N.C. App. at 774, 574 S.E.2d at 693; Pimental,
153 N.C. App. at 73-74, 568 S.E.2d at 870; Dickson, 151 N.C. App. at 137-38, 564
S.E.2d at 640-41.
On the record before us, Defendant has not demonstrated, and we do not find,
the ‘exceptional circumstances’ necessary to invoke Rule 2 and suspend the
requirements of Rule 21 to review the merits of Defendant’s argument by certiorari.
V. Conclusion
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Opinion of the Court
Under these facts, Defendant does not have a statutory right to appeal from
the trial court’s denial of her motion to dismiss prior to her plea of guilty. Defendant’s
petition to issue a writ of certiorari does not assert grounds which are included in or
permitted by Appellate Rule 21(a)(1). In the exercise of our discretion, we decline to
invoke Appellate Rule 2 to suspend the requirements of the appellate rules to grant
the writ of certiorari pursuant to N.C. Gen. Stat. § 15A-1444(e) to review Defendant’s
argument. Defendant’s petition is denied. Defendant’s appeal is dismissed.
DENIED AND DISMISSED.
Judges McCULLOUGH and DIETZ concur.
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