State v. Stubbs , 231 N.C. App. 683 ( 2014 )

NO. COA13-174
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Cumberland County
No. 73 CRS 17584
LARRY STUBBS
Appeal by the State from judgment entered 5 December 2012 by
Judge Gregory A. Weeks in Cumberland County Superior Court. Heard
in the Court of Appeals 5 June 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O’Brien, for the State.
Sarah Jessica Farber for defendant-appellee.
BRYANT, Judge.
Where the trial court erred in concluding that defendant’s
sentence of life in prison with the possibility of parole was a
violation of the Eighth Amendment, we reverse and remand the trial
court order modifying defendant’s original sentence.
On 7 May 1973, a complaint and warrant for arrest was issued
against seventeen-year-old defendant Larry Connell Stubbs in
Cumberland County.
[The complainant alleged that on that day,
defendant] unlawfully, willfully, and
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feloniously and burglariously [sic] did break
and enter, at or about the hour of two o’clock
AM in the night . . . the dwelling house of
[the victim] located at 6697 Amanda Circle,
Fayetteville, N.C. and then and there actually
occupied by the said [victim], with the
felonious intent [defendant], [sic] the goods
and chattels of the said [victim], in the said
dwelling house then and there being, then and
there feloniously and burglariously [sic] to
steal and carry away, said items stolen and
carried away, one table lamp, one General
Electric Record Player; one Magnus Electric
Organ; One Portable General Electric 19”
television set; . . . one man’s suit color
black, the personal property of [the victim],
and valued at $394.00.
In addition to first-degree burglary and felonious larceny,
defendant was charged with and later indicted on the charge of
rape. On 6 August 1973, defendant pled guilty to second-degree
burglary and assault with intent to commit rape. The State
dismissed the charge of felonious larceny.
On the charge of second-degree burglary, the trial court
accepted defendant’s plea, entered judgment, and sentenced
defendant to an active term for “his natural life.”1 On the charge
1 Pursuant to N.C. Gen. Stat. ' 148-58, effective in 1973, “Time
of eligibility of prisoners to have cases considered,” “any
prisoner serving sentence for life shall be eligible [to have their
cases considered for parole] when he has served 10 years of his
sentence.” N.C. Gen. Stat. ' 148-58 (1973) (amended in 1973,
effective 1 July 1974, to provide that the period a prisoner
sentenced to life imprisonment must serve before being eligible
for parole would be changed from ten to twenty years) (repealed
1977).
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of assault with intent to commit rape, the trial court sentenced
defendant to an active term of fifteen years to run concurrently
with his life sentence.
On 11 May 2011, defendant filed a pro se motion for
appropriate relief (MAR) in the Cumberland County Superior Court
asking that his sentence of life in prison on the charge of second-
degree burglary be set aside, that he be resentenced, and after
awarding time served as credit toward the new sentence, that he be
released from prison. As a statutory basis for the relief
requested, defendant cited N.C. Gen. Stat. § 15A-1415(b)(7),
“Grounds for appropriate relief which may be asserted by defendant
after verdict; limitation as to time”, and G.S. § 15A-1340.17,
“Punishment limits for each class of offense and prior record
level” pursuant to the Structured Sentencing Act codified at §§
15A-1340.10, et seq. Defendant’s contention was that his original
sentence was grossly disproportionate to the maximum sentence he
could receive for the same crime if sentenced today. Sentenced to
an active term for his natural life for second-degree burglary,
defendant maintained that if he had been sentenced under the
Structured Sentencing Act, effective 1 October 1994, his term would
have been between twenty-nine and forty-four months. “Because
there has been a ‘significant change’ in the law,” defendant
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asserted that his life sentence should now be considered cruel and
unusual punishment. Defendant petitioned the Superior Court to
resentence him based on “evolving standards of decency under the
Eighth Amendment of the United States Constitution which prohibits
cruel and unusual punishment being inflicted[,] as does [] Article
I, section 27 of the North Carolina Constitution.” Defendant also
petitioned to proceed in forma pauperis.
On 10 October 2011, Senior Resident Superior Court Judge
Gregory A. Weeks filed an order in which he concluded that
defendant’s “Motion for Appropriate Relief [was] not frivolous,
[had] merit, that a summary disposition [was] inappropriate, and
that a hearing [was] necessary.” The court appointed the Office
of North Carolina Prisoner Legal Services to represent defendant.
On 13 August 2012, the State filed its Memorandum Opposing
Defendant’s Motion for Appropriate Relief. In its memorandum, the
State addressed defendant’s motion as a request for retroactive
application of the Structured Sentencing Act and a challenge to
his life sentence pursuant to the Cruel and Unusual Punishments
Clause of the Eighth Amendment to the United States Constitution.
The State maintained that defendant was not entitled to the relief
sought: the Structured Sentencing Act was applicable to criminal
offenses occurring on or after 1 October 1994; and “[t]o the extent
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that [] Defendant’s argument challenges his sentence pursuant to
the Cruel and Unusual Punishments Clause of the Eighth Amendment
to the United States Constitution,” Eighth Amendment jurisprudence
proscribes a different analysis than the one proposed by defendant.
The State further asserted that our State Appellate Courts have
rejected arguments similar to the one defendant presented.
On 15 August 2012, defendant, through appointed counsel,
filed a Memorandum Supporting Defendant’s Motion for Appropriate
Relief. Acknowledging our North Carolina Supreme Court’s holding
which declined to retroactively apply the sentencing provisions
codified under the Structured Sentencing Act, see State v.
Whitehead, 365 N.C. 444, 722 S.E.2d 492 (2012), defendant asserted
that he was entitled to relief “because his sentence of Life
Imprisonment for his conviction of Second Degree Burglary in 1973
is unconstitutionally excessive under evolving standards of
decency and the Eighth Amendment to the United States Constitution
. . . and Article I, Section 27 of the North Carolina
Constitution.” Defendant asserted that “[t]o gauge evolving
standards of decency, the [United States] Supreme Court looks to
legislative changes and enactments.” Defendant also asserted that
“[t]he [Structured Sentencing Act] is the most current expression
of North Carolina’s assessment of appropriate and humane
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sentences, and [] is an objective index of sentence proportionality
for Eighth Amendment analysis purposes.” “As of today, Defendant
has served nearly forty years in prison for his Second Degree
Burglary conviction. This is nearly ten times the length of time
that any defendant could be ordered to serve today.” Defendant
contended that his sentence was excessive, that it violated the
United States Constitution and the North Carolina Constitution
“making it necessary to vacate Defendant’s life sentence and to
resentence him to a term of years that is not disproportionate,
cruel, or unusual.”
Following a 13 August 2012 hearing, the trial court on 5
December 2012 entered an order in which it found that on 6 August
1973, defendant pled guilty to second-degree burglary and assault
with intent to commit rape. Defendant had been sentenced to life
in prison for second-degree burglary along with a concurrent
sentence of fifteen years imprisonment for assault with intent to
commit rape. Defendant completed his sentence for assault with
intent to commit rape in 1983 and was currently incarcerated solely
for his second-degree burglary conviction. “As of 30 November
2012, [defendant] has been in the custody of the North Carolina
Department of Public Safety for this crime for more than thirty-
six years.” The court found that defendant was paroled in December
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2008 and that while on parole, he was charged with and convicted
of driving while impaired. Subsequent to his conviction,
defendant’s parole status was revoked, and he was returned to
incarceration. The trial court concluded that under “evolving
standards, [defendant’s] sentence violated the Eighth Amendment
and is invalid as a matter of law.” The trial court granted
defendant’s motion for appropriate relief and vacated the judgment
entered 6 August 1973 as to the second-degree burglary conviction,
resentencing defendant to a term of thirty years. Defendant was
given credit for 13,652 days spent in confinement. The trial court
further ordered that the North Carolina Department of Public Safety
Division of Adult Correction release defendant immediately.
The State filed with this Court petitions for a writ of
certiorari to review the 5 December 2012 trial court order and a
writ of supersedeas to stay imposition of the trial court’s order
pending appeal. Both petitions were granted.2
2 We acknowledge with appreciation the responsiveness of the State
and defense counsel in providing this Court with memoranda of
additional authority regarding a question presented by this Court
at oral argument reflecting on our jurisdiction to hear this
appeal. We also note that because one panel of this Court has
previously decided the jurisdictional issue by granting the
State’s petition for a writ of certiorari to hear the appeal, we
cannot overrule that decision. N.C.N.B. v. Virginia Carolina
Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983) (“[O]nce
a panel of the Court of Appeals has decided a question in a given
case that decision becomes the law of the case and governs other
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_______________________________
On appeal, the State brings forth the issue of whether the
Superior Court erred by ruling that defendant’s 1973 sentence of
life imprisonment with the possibility of parole for a second-
degree burglary conviction is now in violation of the Eighth
Amendment to the United States Constitution, vacating defendant’s
1973 judgment, and resentencing him. The State argues on appeal
that (A) the trial court lacked jurisdiction over the original
judgment and (B) that it incorrectly interpreted the precedent of
the Supreme Court of the United States.
“Our review of a trial court's ruling on a defendant's MAR is
‘whether the findings of fact are supported by evidence, whether
the findings of fact support the conclusions of law, and whether
the conclusions of law support the order entered by the trial
court.’” State v. Peterson, ___ N.C. App. ___, ___, 744 S.E.2d
panels which may thereafter consider the case. Further, since the
power of one panel of the Court of Appeals is equal to and
coordinate with that of another, a succeeding panel of that court
has no power to review the decision of another panel on the same
question in the same case. Thus the second panel in the instant
case had no authority to exercise its discretion [against]
reviewing the trial court's order when a preceding panel had
earlier decided to the contrary.”). However, a separate concurring
and a separate dissenting opinion further address the issue of
jurisdiction to hear this appeal.
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153, 157 (2013) (quoting State v. Stevens, 305 N.C. 712, 720, 291
S.E.2d 585, 591 (1982)).
A
The State argues that the trial court lacked jurisdiction
over the original judgment. Specifically, the State contends that
defendant’s motion for appropriate relief was made pursuant to
N.C. Gen. Stat. § 15A-1415 but that no provision of section 15A-
1415 granted the trial court jurisdiction to modify the original
sentence. We disagree.
A trial court loses jurisdiction to modify a defendant’s
sentence, “subject to limited exceptions, after the adjournment of
the session of court in which [the] defendant receive[s] this
sentence[,] [a]lthough a trial court may properly modify a sentence
after the trial term upon submission of a [Motion for Appropriate
Relief (MAR)][.]” Whitehead, 365 N.C. at 448, 722 S.E.2d at 495(citations omitted). Section 15A-1415 of the North Carolina
General Statutes lists “the only grounds which the defendant may
assert by a motion for appropriate relief made more than 10 days
after entry of judgment[.]” N.C. Gen. Stat. § 15A-1415(b) (2011).
At the 13 August 2012 hearing on defendant’s MAR, defendant
contended that he was entitled to relief pursuant to N.C. Gen.
Stat. § 15A-1415(b)(8). In its 5 December 2012 order, the trial
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court concluded that its authority over the 6 August 1973 judgment
was allowed pursuant to N.C.G.S. § 15A-1415(b)(4) & (b)(8).
Pursuant to General Statutes, section 15A-1415, a defendant
may assert by MAR made more than ten days after entry of judgment
the following grounds:
(4) The defendant was convicted or sentenced
under a statute that was in violation of the
Constitution of the United States or the
Constitution of North Carolina.
. . .
(8) The sentence imposed was unauthorized at
the time imposed, contained a type of sentence
disposition or a term of imprisonment not
authorized for the particular class of offense
and prior record or conviction level was
illegally imposed, or is otherwise invalid as
a matter of law.
N.C.G.S. § 15A-1415(b)(4) & (b)(8).
The gravamen of the argument presented in defendant’s MAR
submitted to the trial court is that because “his sentence of Life
Imprisonment for his conviction of Second Degree Burglary in 1973
is unconstitutionally excessive under evolving standards of
decency and the Eighth Amendment to the United States Constitution
. . . and Article I, Section 27 of the North Carolina
Constitution,” the trial court had jurisdiction over the 6 August
1973 judgment to consider whether defendant’s sentence was
“invalid as a matter of law.” N.C.G.S. § 15A-1415(b)(8); see also
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N.C.G.S. ' 15A-1415(b)(4). We agree and therefore, overrule the
State’s challenge to the trial court’s jurisdiction.
B
The State further contends that the trial court misapplied
United States Supreme Court precedent, applying the wrong test to
determine whether an Eighth Amendment violation has occurred. We
agree in part.
The Eighth Amendment to the United States Constitution states
that “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted[,]” U.S.
Const. amend. VIII, and is made applicable to the States by the
Fourteenth Amendment, id. amend. XIV. The Constitution of North
Carolina similarly states, “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel or unusual
punishments inflicted.” N.C. Const. art. I, § 27. Despite the
difference between the two constitutions, one prohibiting “cruel
and unusual punishments,” the other “cruel or unusual
punishments,” “[our North Carolina Supreme Court] historically has
analyzed cruel and/or unusual punishment claims by criminal
defendants the same under both the federal and state
Constitutions.” State v. Green, 348 N.C. 588, 603, 502 S.E.2d
819, 828 (1998) (citations omitted), superseded by statute on other
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grounds as stated in In re J.L.W., 136 N.C. App. 596, 525 S.E.2d
500 (2000).
“The basic concept underlying the Eighth Amendment is nothing
less than the dignity of man. . . . [T]he words of the Amendment
are not precise, and [] their scope is not static. The Amendment
must draw its meaning from the evolving standards of decency that
mark the progress of a maturing society.” Trop v. Dulles, 356
U.S. 86, 100-01, 2 L. Ed. 2d 630, 642 (1958) (citation omitted).
“The [Eighth] Amendment embodies broad and idealistic concepts of
dignity, civilized standards, humanity, and decency . . . , against
which we must evaluate penal measures.” Estelle v. Gamble, 429
U.S. 97, 102-03, 50 L. Ed. 2d 251, 259 (1976) (citation and
quotations omitted).
In Estelle v. Gamble, the United States Supreme Court observed
that when the Court initially applied the Eight Amendment, the
challenged punishments regarded methods of execution. Id. at 102,
50 L. Ed. 2d at 258. However, “the Amendment proscribes more than
physically barbarous punishments.” Id. at 102, 50 L. Ed. 2d 259.
To determine whether a punishment is
cruel and unusual, courts must look beyond
historical conceptions to the evolving
standards of decency that mark the progress of
a maturing society. This is because the
standard of extreme cruelty is not merely
descriptive, but necessarily embodies a moral
judgment. The standard itself remains the
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same, but its applicability must change as the
basic mores of society change.
Graham v. Florida, 560 U.S. 48, 58, 176 L. Ed. 2d 825, 835 (2010)
(citations, quotations, and bracket omitted).
[T]he Eighth Amendment's protection against
excessive or cruel and unusual punishments
flows from the basic precept of justice that
punishment for a crime should be graduated and
proportioned to the offense. Whether this
requirement has been fulfilled is determined
not by the standards that prevailed when the
Eighth Amendment was adopted in 1791 but by
the norms that currently prevail. The
Amendment draws its meaning from the evolving
standards of decency that mark the progress of
a maturing society.
Kennedy v. Louisiana, 554 U.S. 407, 419, 171 L. Ed. 2d 525, 538
(citations and quotations omitted) opinion modified on denial of
reh'g, 554 U.S. 945, 171 L. Ed. 2d 932 (2008).
The concept of proportionality is central to
the Eighth Amendment. . . .
The Court’s cases addressing the
proportionality of sentences fall within two
general classifications. The first involves
challenges to the length of term-of-years
sentences given all the circumstances in a
particular case. The second comprises cases in
which the Court implements the proportionality
standard by certain categorical restrictions
on the death penalty.
Graham, 560 U.S. at 59, 176 L. Ed. 2d at 835-36.
As to the first classification, in which the Court considers
whether a term-of-years sentence is unconstitutionally excessive
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given the circumstances of a case, the Court noted that “it has
been difficult for [challengers] to establish a lack of
proportionality.” Id. at 59, 176 L. Ed. 2d at 836. Referring to
Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836 (1991), as
a leading case on the review of Eighth Amendment challenges to
term-of-years sentences as disproportionate, Justice Kennedy
delivering the opinion of the Graham Court acknowledged his
concurring opinion in Harmelin: “[T]he Eighth Amendment contains
a ‘narrow proportionality principle,’ that ‘does not require
strict proportionality between crime and sentence’ but rather
‘forbids only extreme sentences that are “grossly
disproportionate” to the crime.’” Graham, 560 U.S. at 59-60, 176
L. Ed. 2d at 836 (quoting Harmelin, 501 U.S. at 997, 1000–1001,
115 L. Ed. 2d at 836 (Kennedy, J., concurring in part and
concurring in judgment)). Accord Rummel v. Estelle, 445 U.S. 263,
288, 63 L. Ed. 2d 382 (1980) (Powell, J., dissenting (The scope of
the Cruel and Unusual Punishments Clause extends . . . to
punishments that are grossly disproportionate. Disproportionality
analysis . . . focuses on whether, a person deserves such
punishment . . . . A statute that levied a mandatory life sentence
for overtime parking might well deter vehicular lawlessness, but
it would offend our felt sense of justice. The Court concedes today
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that the principle of disproportionality plays a role in the review
of sentences imposing the death penalty, but suggests that the
principle may be less applicable when a noncapital sentence is
challenged.”)).
In Harmelin, 501 U.S. 957, 115 L. Ed. 2d 836, the defendant
challenged his sentence of life in prison without possibility of
parole on the grounds that it was “significantly” disproportionate
to his crime, possession of 650 or more grams of cocaine. The
defendant further argued that because the sentence was mandatory
upon conviction, it amounted to cruel and unusual punishment as it
precluded consideration of individual mitigating circumstances.
Id. at 961, 115 L. Ed. 2d at 843 n.1. In an opinion delivered by
Justice Scalia, a majority of the Court held that the sentence was
not cruel and unusual punishment solely because it was mandatory
upon conviction. In addressing the defendant’s alternative
argument, that his sentence of life in prison without possibility
of parole was significantly disproportionate to his crime of
possessing 650 or more grams of cocaine, a majority of the Court
concluded that the defendant’s sentence did not run afoul of the
Eighth Amendment; however, the Court revealed varied views as to
whether the Eighth Amendment includes a protection against
disproportionate sentencing and if so, to what extent. See also
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Ewing v. California, 538 U.S. 11, 155 L. Ed. 2d 108 (2003) (holding
that the defendant’s sentence of twenty-five years to life for
felony grand theft under California’s “three strikes and you’re
out” law did not violate the Eighth Amendment’s prohibition on
cruel and unusual punishments). Cf. Solem v. Helm, 463 U.S. 277,
77 L. Ed. 2d 637 (1983) (holding that South Dakota’s sentence of
life without possibility of parole for uttering a “no account”
check after the defendant had previously been convicted of six
non-violent felonies was disproportionate to his crime and
prohibited by the Eighth Amendment).
We return our attention to Graham v. Florida which sets out
the second classification of Eighth Amendment proportionality
challenges as “implement[ing] the proportionality standard by
certain categorical restrictions on the death penalty.” Graham,
560 U.S. at 59, 176 L. Ed. 2d at 836. But, rather than a challenge
to a capital sentence, the Graham Court was presented with a
categorical challenge to a term-of-years sentence: whether the
imposition of life in prison without the possibility of parole for
a nonhomicide crime committed by a sixteen-year-old juvenile
offender violated the Eighth Amendment. In its reasoning, the
Court made the following observation:
[L]ife without parole is the second most
severe penalty permitted by law. . . . [L]ife
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without parole sentences share some
characteristics with death sentences that are
shared by no other sentences. . . . [T]he
sentence alters the offender's life by a
forfeiture that is irrevocable. It deprives
the convict of the most basic liberties
without giving hope of restoration, except
perhaps by executive clemency—the remote
possibility of which does not mitigate the
harshness of the sentence.
Id. at 69-70, 176 L. Ed. 2d at 842. The Court concluded that the
severity of a sentence imposing life without parole for a person
who was a juvenile at the time his nonhomicide offense was
committed is a sentencing practice that is cruel and unusual. Id.
at 74, 176 L. Ed. 2d at 845. However, the Court went on to note
that this sentencing preclusion may not lessen the duration of a
sentence.
A State is not required to guarantee eventual
freedom to a juvenile offender convicted of a
nonhomicide crime. What the State must do,
however, is give [the] defendant[] . . . some
meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation.
It is for the State, in the first instance, to
explore the means and mechanisms for
compliance. It bears emphasis . . . that while
the Eighth Amendment forbids a State from
imposing a life without parole sentence on a
juvenile nonhomicide offender, it does not
require the State to release that offender
during his natural life. . . . The Eighth
Amendment does not foreclose the possibility
that persons convicted of nonhomicide crimes
committed before adulthood will remain behind
bars for life.
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Id. at 75, 176 L. Ed. 2d at 845-46 (emphasis added).
As a means of obtaining release from incarceration, our North
Carolina General Assembly has created by statute a Post-Release
Supervision and Parole Commission. N.C. Gen. Stat. ' 143B-720
(2011). With the exception of those sentenced under the Structured
Sentencing Act, the Commission has “authority to grant paroles .
. . to persons held by virtue of any final order or judgment of
any court of this State . . . .” Id. ' 143B-720(a). Furthermore,
the Commission is to assist the Governor and perform such services
as the Governor may require in exercising his executive clemency
powers. Id. We note that in State v. Whitehead, 365 N.C. 444,
722 S.E.2d 492 (2012), a case reviewing the retroactive application
of a less severe sentencing statute, our Supreme Court also drew
attention to the powers of the Post-Release Supervision and Parole
Commission.
In 2005, 2007, 2009, and 2011, the General
Assembly directed the Post–Release
Supervision and Parole Commission to determine
whether inmates sentenced under previous
sentencing standards have served more time in
custody than they would have served if they
had received the maximum sentence under the
SSA. [Defendant’s sentence appears to fall
within the purview of this directive.]. . . In
addition, wholly independent of the
Commission's grant of authority, the state
constitution empowers the Governor to “grant
reprieves, commutations, and pardons, after
conviction, for all offenses ... upon such
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conditions as he may think proper.” N.C.
Const. art. III, § 5(6).
Id. at 448, 722 S.E.2d at 496 n.1 (emphasis added).3
The Whitehead Court considered a trial court order granting
a defendant’s MAR requesting that his life sentence imposed
following a guilty plea entered 29 July 1994 and imposed pursuant
to the Fair Sentencing Act for a homicide occurring 25 August 1993
be modified by retroactively applying the sentencing provisions of
the Structured Sentencing Act applicable to offenses committed on
or after 1 October 1994. Id. Vacating and remanding the judgment
and order of the trial court, our Supreme Court stated that
“[c]riminal sentences may be invalidated for cognizable legal
error demonstrated in appropriate proceedings. But, in the absence
of legal error, it is not the role of the judiciary to engage in
discretionary sentence reduction.” Id. at 448, 722 S.E.2d at 496.
In the matter before us, we note that on 7 May 1973, the date
of the offense for which defendant was charged with committing the
offense of second-degree burglary, he was seventeen years old.4
3 While this quote from Whitehead, 365 N.C. at 448, 722 S.E.2d at496 n.1, is a footnote, we think it is relevant to the instant
case wherein defendant, like the defendant in Whitehead, was
sentenced under a “previous sentencing standard,” and defendant
would have fallen within the directives of the Parole Commission.
4 At the time of his offense, North Carolina General Statutes,
Chapter 7A, Article 23, entitled “Jurisdiction and Procedure
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On 6 August 1973, the date defendant pled guilty to second-degree
burglary, defendant was eighteen. Defendant was sentenced to
incarceration for “his natural life.” Pursuant to our General
Statutes in effect at that time, any prisoner serving a life
sentence was eligible to have his case considered for parole after
serving ten years of his sentence. N.C.G.S. ' 148-58. The record
is not clear how often defendant was considered for parole.
However, after serving over thirty-five years, defendant was
paroled in December 2008. In 2010, defendant was convicted of
driving while impaired. He was sentenced and served 120 days in
jail. Thereafter, his parole was revoked and his life sentence
reinstated.
“[L]ife imprisonment with possibility of parole is [] unique
in that it is the third most severe [punishment].” Harmelin, 501
U.S. at 996, 115 L. Ed. 2d at 865. Nevertheless, in the body of
case law involving those who commit nonhomicide criminal offenses
even as juveniles, sentences allowing for the “realistic
opportunity to obtain release before the end of [a life] term” do
not violate the prohibitions of the Eighth Amendment. Graham, 560
Applicable to Children,” defined “Child” as “any person who has
not reached his sixteenth birthday.” N.C. Gen. Stat. ' 7A-278(1)
(1973). As defendant was seventeen at the time of his offense, he
did not come within the aegis of the Chapter 7A, Article 23.
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U.S. at 82, 176 L. Ed. 2d at 850. Defendant’s sentence allows for
the realistic opportunity to obtain release before the end of his
life. In fact, defendant was placed on parole in December 2008
prior to his 2010 conviction for the offense of driving while
impaired, which led to the revocation of his parole and
reinstatement of his life sentence. As our Supreme Court has not
indicated a preference for discretionary sentence reduction, see
Whitehead, 365 N.C. at 448, 722 S.E.2d at 496 (“[I]t is not the
role of the judiciary to engage in discretionary sentence
reduction.”), and our General Assembly has directed the Post–
Release Supervision and Parole Commission to review matters of
proportionality, see N.C.G.S. ' 143B-720; Whitehead, 365 N.C. at
449, 722 S.E.2d at 496 n.1, we hold that the trial court erred in
concluding defendant’s life sentence violated the prohibitions of
the Eighth Amendment to the United States Constitution. See Rummel
v. Estelle, 445 U.S. 263, 283-84, 63 L. Ed. 2d 382, 397 (1980)
(“Perhaps . . . time works changes upon the Eighth Amendment,
bringing into existence new conditions and purposes. We all, of
course, would like to think that we are moving down the road toward
human decency. Within the confines of this judicial proceeding,
however, we have no way of knowing in which direction that road
lies. Penologists themselves have been unable to agree whether
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sentences should be light or heavy, discretionary or determinate.
This uncertainty reinforces our conviction that any nationwide
trend toward lighter, discretionary sentences must find its source
and its sustaining force in the legislatures, not in the []
courts.” (citations and quotations omitted)). It should be stated
that by all accounts based on today’s sentencing standards,
defendant’s sentence cannot be viewed as anything but severe.
Since 1973 at the age of eighteen, defendant has been incarcerated
for all but less than two years. There is no record of an appeal
from the 1973 conviction, and the record before us does not provide
details of the circumstances which led to defendant’s arrest or
the injury to the victim. Regardless, we must address only what
is, as opposed to what is not, before us. Upon review of the
arguments presented and cases cited, defendant’s outstanding
sentence of life in prison with possibility of parole for second-
degree burglary, though severe, is not cruel or unusual in the
constitutional sense. See Green, 348 N.C. at 603, 502 S.E.2d at
828. Accordingly, we reverse the Superior Court’s 5 December order
modifying defendant’s original sentence and remand to the trial
court for reinstatement of the original 6 August 1973 judgment and
commitment.
Reversed and remanded.
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Judge DILLON concurs by separate opinion.
Judge STEPHENS dissents by separate opinion.
NO. COA13-174
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Cumberland County
No. 73 CRS 17584
LARRY STUBBS
DILLON, Judge, concurring in separate opinion.
I agree with the majority opinion. However, I write to
address the jurisdiction question raised by the parties and
discussed in footnote 2 of the majority opinion. I believe that
the “law of the case” principle, referenced in that footnote,
generally compels a panel of this Court to follow the decisions of
another panel made in the same case. However, I do not believe a
panel is compelled to follow the “law of the case” where the issue
concerns subject matter jurisdiction. See McAllister v. Cone Mills
Corporation, 88 N.C. App. 577, 364 S.E.2d 186 (1988). In
McAllister we held that a superior court judge had the authority
to determine whether it had subject matter jurisdiction to consider
a matter after another superior court judge, in a prior hearing,
had denied a motion to dismiss the matter based on lack of subject
matter jurisdiction, stating that “[i]f a court finds at any stage
of the proceedings that it lacks jurisdiction over the subject
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matter of a case, it must dismiss the case for want of
jurisdiction.” Id. at 579, 364 S.E.2d at 188. Therefore, I
believe we are compelled to make a determination whether the panel
of this Court which granted the State’s petition for writ of
certiorari – which is the basis for our panel’s jurisdiction - had
the authority to do so.
The North Carolina Constitution states that this Court has
appellate jurisdiction “as the General Assembly may prescribe.”
N.C. Const. Article IV, Section 12(2). Our General Assembly has
prescribed that this Court has jurisdiction “to issue . . .
prerogative writs, including . . . certiorari . . . to supervise
and control the proceedings of any of the trial courts. . . .”
N.C. Gen. Stat. § 7A-32(c) (2011).5 The General Assembly further
has prescribed that the “practice and procedure” by which this
Court exercises its jurisdiction to issue writs of certiorari is
provided, in part, by “rule of the Supreme Court.” Id. The
Supreme Court has enacted the Rules of Appellate Procedure, which
includes Rule 21, providing that writs of certiorari may be issued
by either this Court or the Supreme Court in three specific
5 This language employed by the General Assembly is similar to the
language in our Constitution defining the jurisdictional limits of
our Supreme Court, which includes the authority of “general
supervision and control over the proceedings of the other courts.”
N.C. CONST. art. IV, § 12(1).
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circumstances, none of which applies to the State’s appeal in this
case.
Defendant argues that the subject matter jurisdiction of this
Court to issue writs of certiorari is limited to the three
circumstances listed in Rule 21. The State argues that Rule 21 is
not intended to limit the subject matter jurisdiction of this Court
but is simply a “rule” establishing a “practice and procedure,”
and that Rule 2 – which allows this Court to “suspend or vary the
requirements of any of these rules” – provides an avenue by which
this Court may exercise the jurisdiction granted by the General
Assembly in N.C. Gen. Stat. § 7A-32 to issue writs of certiorari
for matters not stated in Rule 21. There is language in decisions
of this Court which suggests that our authority to grant writs of
certiorari is limited to the three circumstances described in Rule
21. See, e.g., State v. Pimental, 153 N.C. App. 69, 77, 568 S.E.2d
867, 872 (2002) (dismissing a petition for writ of certiorari,
stating that since the appeal was not within the scope of Rule 21,
this Court “does not have the authority to issue a writ of
certiorari”). However, there is language in other decisions which
suggests that this Court may invoke Rule 2 to consider writs of
certiorari in circumstances not covered by Rule 21. See, e.g.,
State v. Starkey, 177 N.C. App. 264, 268, 628 S.E.2d 424, 426
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(2006) (denying a petition for writ of certiorari by refusing to
invoke Rule 2).
I believe that our approach in Starkey – suggesting that our
subject matter jurisdiction to issue writs of certiorari is not
limited to the circumstances contained in Rule 21 – is correct.
Our Supreme Court and this Court has recognized the authority of
our appellate courts to issue writs of certiorari in circumstances
not contained in Rule 21. See, e.g., State v. Bolinger, 320 N.C.
596, 601-02, 359 S.E.2d 459, 462 (1987) (holding that a defendant
may obtain appellate review through a writ of certiorari to
challenge the procedures followed in accepting a guilty plea,
notwithstanding that the defendant does not have the statutory
right to appellate review); see also State v. Carriker, 180 N.C.
App. 470, 471, 637 S.E.2d 557, 558 (2006) (holding that a challenge
to procedures in accepting a guilty plea is reviewable by
certiorari). Additionally, in Rule 1 of the Rules of Appellate
Procedure, our Supreme Court stated that the appellate rules “shall
not be construed to extend or limit the jurisdiction of the courts
of the appellate division[.]” Id.Accordingly, I believe that the panel of this Court which
considered the State’s petition for a writ of certiorari had the
authority to grant the writ, notwithstanding that an appeal by the
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State from an order granting a defendant’s motion for appropriate
relief is not among the circumstances contained in N.C.R. App. P.
21; and, therefore, we are bound by the decision of that panel.
NO. COA13-174
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Cumberland County
No. 73 CRS 17584
LARRY STUBBS
STEPHENS, Judge, dissenting.
Because I believe that this Court lacks subject matter
jurisdiction to review the State’s arguments, I respectfully
dissent.
In support of its determination that this panel is bound by
the decision of a petition panel of this Court that we have subject
matter jurisdiction to grant the State’s petition for writ of
certiorari, the majority cites our Supreme Court’s opinion in North
Carolina Nat. Bank v. Virginia Carolina Builders, 307 N.C. 563,
567, 299 S.E.2d 629, 631-32 (1983) (“[O]nce a panel of the Court
of Appeals has decided a question in a given case that decision
becomes the law of the case and governs other panels which may
thereafter consider the case. Further, since the power of one
panel of the Court of Appeals is equal to and coordinate with that
of another, a succeeding panel of that court has no power to review
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the decision of another panel on the same question in the same
case. Thus the second panel in the instant case had no authority
to exercise its discretion in favor of reviewing the trial court’s
order when a preceding panel had earlier decided to the
contrary.”). In my view, Virginia Carolina Builders is clearly
distinguishable from the issue presented in the case at bar because
it concerned a Court of Appeals panel’s reconsideration of a prior
panel’s exercise of discretion, rather than a question regarding
this Court’s subject matter jurisdiction over a matter.
In Virginia Carolina Builders, the appellant sought review of
an interlocutory order. Id. at 565, 299 S.E.2d at 630. The
appellant gave notice of appeal from the order, but prior to filing
the record with this Court, he petitioned for writ of certiorari.
Id. A panel of this Court denied that petition. Id. Thereafter,
the appellant filed the record on appeal with this Court and
presented arguments on the merits of his claims. Id. Two judges
of a second panel of this Court, to whom the appeal was assigned,
recognized that the order appealed from was interlocutory and would
ordinarily be nonappealable, but nonetheless elected to reach the
merits in their “discretion[.]” Id. at 565, 299 S.E.2d at 630-
31. Based on the dissent of one judge who would have dismissed
the appeal, the appellees sought review as a matter of right in
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the Supreme Court. Id. at 565-66, 299 S.E.2d at 631.
The Supreme Court stated:
Although we have never considered the
question, well-established analogies in our
law lead us to conclude that the second panel
of the Court of Appeals was without authority
to overrule the first on the same question in
the same case. Once an appellate court has
ruled on a question, that decision becomes the
law of the case and governs the question not
only on remand at trial, but on a subsequent
appeal of the same case. At the trial level
the well[-]established rule in North Carolina
is that no appeal lies from one Superior Court
judge to another; that one Superior Court
judge may not correct another’s errors of law;
and that ordinarily one judge may not modify,
overrule, or change the judgment of another
Superior Court judge previously made in the
same action. The power of one judge of the
superior court is equal to and coordinate with
that of another, and a judge holding a
succeeding term of court has no power to
review a judgment rendered at a former term on
the ground that the judgment is erroneous.
Applying these principles to the question
before us, we conclude that once a panel of
the Court of Appeals has decided a question in
a given case that decision becomes the law of
the case and governs other panels which may
thereafter consider the case. Further, since
the power of one panel of the Court of Appeals
is equal to and coordinate with that of
another, a succeeding panel of that court has
no power to review the decision of another
panel on the same question in the same case.
Thus the second panel in the instant case had
no authority to exercise its discretion in
favor of reviewing the trial court’s order
when a preceding panel had earlier decided to
the contrary.
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Our decision on this point in no way impinges
on the power of this Court or the Court of
Appeals to change its ruling upon a motion to
rehear, or on the court’s own motion, if the
court determines that its former ruling was
clearly erroneous. In the case of the Court
of Appeals, however, such a change must be
made, if at all, by the same panel which
initially decided the matter. Otherwise, a
party against whom a decision was made by one
panel of the Court of Appeals could simply
continue to press a point in that court hoping
that some other panel would eventually decide
it favorably, as indeed the plaintiff did in
this case; and we would not have that orderly
administration of the law by the courts, which
litigants have a right to expect.
Id. at 566-67, 299 S.E.2d at 631-32 (citations, internal quotation
marks, and some brackets omitted).
I fully agree that in matters such as the exercise of
discretion, factual determinations, and legal rulings, one panel
of this Court cannot overrule another. However, I believe that
determination of subject matter jurisdiction presents a different
situation, one to which the analysis of Virginia Carolina Builders
plainly does not apply. “Characterizing a rule as jurisdictional
renders it unique in our adversarial system.” Sebelius v. Auburn
Reg’l Med. Ctr., __ U.S. __, __, 184 L. Ed. 2d 627, 637 (2013)
(noting that “[o]bjections to a tribunal’s jurisdiction can be
raised at any time, even by a party that once conceded the
tribunal’s subject-matter jurisdiction over the controversy”).
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“Subject[]matter jurisdiction defines the court’s authority to
hear a given type of case[.]” United States v. Morton, 467 U.S.
822, 828, 81 L. Ed. 2d 680, 688 (1984). A “lack of jurisdiction
of the subject matter may always be raised by a party, or the court
may raise such defect on its own initiative.” Dale v. Lattimore,
12 N.C. App. 348, 352, 183 S.E.2d 417, 419, cert. denied, 279 N.C.
619, 184 S.E.2d 113 (1971). “If a court finds at any stage of the
proceedings that it lacks jurisdiction over the subject matter of
a case, it must dismiss the case for want of jurisdiction.”
McAllister v. Cone Mills Corp., 88 N.C. App. 577, 579, 364 S.E.2d
186, 188 (1988) (emphasis added) (citing Burgess v. Gibbs, 262
N.C. 462, 465, 137 S.E. 2d 806, 808 (1964) (“[T]he proceedings of
a court without jurisdiction of the subject matter are a nullity.
If a court finds at any stage of the proceedings it is without
jurisdiction, it is its duty to take notice of the defect and stay,
quash or dismiss the suit. This is necessary, to prevent the court
from being forced into an act of usurpation, and compelled to give
a void judgment. So, ex necessitate, the court may, on plea,
suggestion, motion, or ex mero motu, where the defect of
jurisdiction is apparent, stop the proceeding.”) (citation and
internal quotation marks omitted)). Further, “parties cannot
stipulate to give a court subject matter jurisdiction where no
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such jurisdiction exists.” Northfield Dev. Co. v. City of
Burlington, 165 N.C. App. 885, 887, 599 S.E.2d 921, 924 (citation
omitted), disc. review denied, 359 N.C. 191, 607 S.E.2d 278 (2004).
My careful review of our State’s statutory and case law
reveals that this Court lacks subject matter jurisdiction to
consider the State’s arguments via review of a trial court’s
allowance of a motion for appropriate relief (“MAR”) or by issuance
of a writ of certiorari.
In State v. Starkey, immediately after entering judgment on
a jury’s verdict, the trial court entered an order sua sponte
granting its own MAR regarding the defendant’s sentence. 177 N.C.
App. 264, 266, 628 S.E.2d 424, 425, cert denied, __ N.C. __, 636
S.E.2d 196 (2006). The trial court found that the defendant’s
sentence violated “his rights under the Eighth and Fourteenth
Amendments to the United States Constitution.” Id. On appeal, in
Starkey, we considered the same two issues as presented in this
matter: “(I) whether the State ha[d] a right to appeal from the
entry of [an] order granting the trial court’s motion for
appropriate relief; and (II) whether this Court [could] grant the
State’s [p]etition for [w]rit of [c]ertiorari.”) (italics added).
Id.As noted in that case, “the right of the State to appeal in
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a criminal case is statutory, and statutes authorizing an appeal
by the State in criminal cases are strictly construed.” Id.(citation, internal quotation marks, and brackets omitted). Two
sections of our General Statutes touch on the State’s possible
right of appeal here: that discussing appeals by the State in
general and those covering appeals from MARs specifically. My
careful review, along with a plain reading of Starkey, reveals no
authority for the State’s purported appeal or petition for writ of
certiorari here.
Our General Statutes provide:
(a) Unless the rule against double jeopardy
prohibits further prosecution, the State may
appeal6 from the superior court to the
appellate division:
6 As this Court has noted,
[a]ppeal is defined in [section] 15A-101(0.1):
“Appeal. — When used in a general context, the
term ‘appeal’ also includes appellate review
upon writ of certiorari.” Applying this
definition to [section] 15A-1445, we hold the
word “appeal” in the statute includes
“appellate review upon writ of certiorari.”
Otherwise, the legislature would have used
such language as “the [S]tate shall have a
right of appeal.” By way of contrast, the
legislature in setting out when a defendant
may appeal, uses the phrase “is entitled to
appeal as a matter of right.” N.C. Gen. Stat.
[§] 15A-1444(a).
State v. Ward, 46 N.C. App. 200, 204, 264 S.E.2d 737, 740 (1980)
(italics added).
-8-
(1) When there has been a decision or
judgment dismissing criminal charges as to one
or more counts.
(2) Upon the granting of a motion for a new
trial on the ground of newly discovered or
newly available evidence but only on questions
of law.
(3) When the State alleges that the
sentence imposed:
a. Results from an incorrect
determination of the defendant’s prior record
level under [section] 15A-1340.14 or the
defendant’s prior conviction level under
[section] 15A-1340.21;
b. Contains a type of sentence
disposition that is not authorized by
[section] 15A-1340.17 or [section] 15A-
1340.23 for the defendant’s class of offense
and prior record or conviction level;
c. Contains a term of imprisonment that
is for a duration not authorized by [section]
15A-1340.17 or [section] 15A-1340.23 for the
defendant’s class of offense and prior record
or conviction level; or
d. Imposes an intermediate punishment
pursuant to [section] 15A-1340.13(g) based on
findings of extraordinary mitigating
circumstances that are not supported by
evidence or are insufficient as a matter of
law to support the dispositional deviation.
(b) The State may appeal an order by the
superior court granting a motion to suppress
as provided in [section] 15A-979.
N.C. Gen. Stat. § 15A-1445 (2013) (emphasis added).
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As observed in Starkey, an appeal from the grant of a
defendant’s MAR as occurred here implicates none of these
conditions:
The relief granted by the trial court might be
considered to have effectively dismissed [the]
defendant’s charge of having attained the
status of an habitual felon or imposed an
unauthorized prison term in light of [the]
defendant’s status as an habitual felon.
However, it is the underlying judgment and not
the order granting this relief from which the
State must have the right to take an appeal.
The State does not argue and we do not find
that the underlying judgment dismisses a
charge against defendant or that the term of
imprisonment imposed was not authorized. The
State therefore has no right to appeal from
the underlying judgment and this appeal is not
one “regularly taken.” This appeal must be
dismissed.
Starkey, 177 N.C. App. at 267, 628 S.E.2d at 426.
The mention of an appeal “regularly taken” refers to
subsection 15A-1422(b) of our General Statutes, which covers MARs:
“The grant or denial of relief sought pursuant to [section] 15A-
1414 is subject to appellate review only in an appeal regularly
taken.” N.C. Gen. Stat. § 15A-1422(b) (2013). In turn, section
15A-1414 covers errors which may be asserted in MARs filed within
ten days following entry of a judgment upon conviction, N.C. Gen.
Stat. § 15A-1414 (2013), while section 15A-1415 specifies the
“[g]rounds for appropriate relief which may be asserted by [a]
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defendant” outside that ten-day time period. N.C. Gen. Stat. §
15A-1415 (2013). Because Defendant here filed his MAR more than
ten days after entry of judgment upon his convictions, section
15A-1422(c) applies to the matter before us:7
The court’s ruling on a motion for appropriate
relief pursuant to [section] 15A-1415 is
subject to review:
(1) If the time for appeal from the
conviction has not expired, by appeal.
(2) If an appeal is pending when the ruling
is entered, in that appeal.
(3) If the time for appeal has expired and
no appeal is pending, by writ of certiorari.
N.C. Gen. Stat. § 15A-1422(c) (emphasis added). Here, the time
for appeal had long passed, and there was no appeal pending when
the MAR was ruled upon, rendering subsections (a) and (b)
inapplicable.
As for the availability of appellate review via writ of
certiorari, this Court in Starkey held:
Review by this Court pursuant to a [p]etition
for [w]rit of [c]ertiorari is governed by Rule
21 of the North Carolina Rules of Appellate
Procedure. Pursuant to Rule 21, this Court is
7 Nothing in Starkey or the relevant statutes suggests that the
timing of the MAR’s filing (i.e., within or outside of the ten-
day period) would have any effect on the reasoning of the Court in
dismissing the State’s purported appeal. Neither section 15A-1414
nor 15A-1415 would permit the appeal by the State in the case
before us.
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limited to issuing a writ of certiorari:
to permit review of the judgments and orders
of trial tribunals when [1] the right to
prosecute an appeal has been lost by failure
to take timely action, or [2] when no right of
appeal from an interlocutory order exists, or
[3] for review pursuant to [section] 15A-
1422(c)(3) of an order of the trial court
denying a motion for appropriate relief.
The State recognizes that its petition does
not satisfy any of the conditions of Rule 21
and asks this Court to invoke Rule 2 of the
North Carolina Rules of Appellate Procedure
and review the trial court’s order.
Starkey, 177 N.C. App. at 268, 628 S.E.2d at 426 (citation and
internal quotation marks omitted; italics added). This Court
declined “the State’s request to invoke Rule 2 and den[ied] the
State’s [p]etition for [w]rit of [c]ertiorari.” Id.8 (italics
added). As noted supra and as was the case in Starkey, none of
the circumstances permitting this Court to grant a writ of
certiorari are presented in the matter before us.
The order entered by this Court on 13 December 2012 cites
8 Although the language used by this Court in Starkey suggests that
the panel could have invoked Rule 2 and granted the petition, Rule
21 is jurisdictional, see N.C. Gen. Stat. § 7A-32(c) (2013), and
thus cannot be obviated by invocation of Rule 2. See Dogwood Dev.
& Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657
S.E.2d 361, 365 (2008) (noting that “in the absence of
jurisdiction, the appellate courts lack authority to consider
whether the circumstances of a purported appeal justify
application of Rule 2”).
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three authorities which purportedly give this Court jurisdiction
to grant the State’s petition: N.C. Const. art. IV, § 12(2), N.C.
Gen. Stat. § 7A-32(c), and State v. Whitehead, 365 N.C. 444, 722
S.E.2d 492 (2012). The cited constitutional provision merely
states that “[t]he Court of Appeals shall have such appellate
jurisdiction as the General Assembly may prescribe.” N.C. Const.
art. IV, § 12(2). In turn, section 7A-32(c) provides:
The Court of Appeals has jurisdiction,
exercisable by one judge or by such number of
judges as the Supreme Court may by rule
provide, to issue the prerogative writs,
including mandamus, prohibition, certiorari,
and supersedeas, in aid of its own
jurisdiction, or to supervise and control the
proceedings of any of the trial courts of the
General Court of Justice, and of the Utilities
Commission and the Industrial Commission. The
practice and procedure shall be as provided by
statute or rule of the Supreme Court, or, in
the absence of statute or rule, according to
the practice and procedure of the common law.
N.C. Gen. Stat. § 7A-32(c) (emphasis added). The 13 December 2012
order states that this Court has jurisdiction to grant the State’s
petition in order “to supervise and control the proceedings of any
of the trial courts of the General Court of Justice[.]” Id.
However, the plain language of the statute states that this
jurisdiction is circumscribed by “statute[,] rule of the Supreme
Court, . . . [or] the common law.” Id. There is no statute or
common law principle giving us jurisdiction to grant the State’s
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petition. Further, as discussed supra, Rule 21 of our Rules of
Appellate Procedure, set forth by our Supreme Court, does not
permit this Court to grant petitions of certiorari in the
circumstances presented here.
Finally, Whitehead is inapposite. That case was issued by
our Supreme Court which, in contrast to the purely statutory and
rule-based jurisdiction and power of this Court, has independent
constitutional “‘jurisdiction to review upon appeal any decision
of the courts below.’” 365 N.C. at 445, 722 S.E.2d at 494 (quoting
N.C. Const. art. IV, § 12(1) (“The Supreme Court shall have
jurisdiction to review upon appeal any decision of the courts
below, upon any matter of law or legal inference.”)). The Supreme
Court stated that it “will not hesitate to exercise its rarely
used general supervisory authority when necessary . . . .” Id. at
446, 722 S.E.2d at 494 (citation and internal quotation marks
omitted; emphasis added). I find it telling that the Supreme
Court, exercising its constitutional general supervisory
authority, allowed the State’s petition for writ of certiorari in
Whitehead to review the identical issue as is raised in the case
at bar, with no prior review by this Court. This suggests that
the State’s procedure in Whitehead, to wit, seeking review of the
trial court’s MAR decision via petition for certiorari directly to
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the Supreme Court, is the proper route for this appeal.
In sum, this Court lacks jurisdiction to review the State’s
arguments by direct appeal, writ of certiorari, or any other
procedure.9 Accordingly, I dissent.
9 Further, the decision of the petition panel overruled this
Court’s published opinion in Starkey, which constituted binding
precedent mandating that we dismiss the State’s purported appeal
and deny its petition for writ of certiorari. See In re Appeal
from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)
(“Where a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court
is bound by that precedent, unless it has been overturned by a
higher court.”).