State v. Patterson ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1082
Filed: 4 February 2020
Mecklenburg County, No. 17 CRS 030256
STATE OF NORTH CAROLINA
v.
MYLEICK SHAWN PATTERSON, Defendant.
Appeal by Defendant from judgment entered 10 May 2018 by Judge Karen
Eady-Williams in Mecklenburg County Superior Court. Heard in the Court of
Appeals 5 June 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Creecy
C. Johnson, for the State.
Gilda C. Rodriguez for defendant-appellant.
MURPHY, Judge.
Defendant argues the trial court committed plain error by admitting certain
photos into evidence during trial, but he does not state any reason or argument for
why the alleged error would seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Without this, we lack the information necessary
to give a meaningful review of Defendant’s plain error issue. We take that argument
as abandoned.
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Opinion of the Court
Defendant also argues, and the State concedes, the trial court erred by
sentencing him in the aggravated range. There was insufficient evidence presented
to the trial court to support the finding of an aggravating factor.
Next, Defendant argues, and the State concedes, the trial court erred when
assessing attorney fees. Nothing in the Record indicates that Defendant was afforded
any opportunity to be heard on the issue of attorney fees. We vacate Defendant’s
sentence and the civil judgment for attorney fees and remand to the trial court for
further proceedings on both matters.
Finally, we dismiss without prejudice Defendant’s claim of ineffective
assistance of counsel because the cold record reveals that further investigation is
required before we may pass on that issue.
BACKGROUND
This appeal arises out of two judgments: a criminal judgment finding
Defendant, Myleick Patterson, guilty of financial card theft; and a civil judgment
ordering him to pay court-appointed attorney fees. The jury convicted Defendant of
one count of financial card theft. The trial court sentenced him to 8 to 19 months
imprisonment, which was suspended, and placed him on 24 months supervised
probation. Defendant stipulated to being a Prior Record Level II, and the trial court
imposed a sentence in the aggravated range for a Class I Felony with a Prior Record
Level II. This was based on aggravating factor 12a per N.C.G.S. § 15A-
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Opinion of the Court
1340.16(d)(12a) (2019). The trial court also did not discuss with Defendant the
assessment of attorney fees. Outside of Defendant’s presence, the trial court later
entered a civil judgment of $2,250.00 against him for attorney fees.
Defendant appeals under N.C.G.S. §§ 7A-27(b) and 15A-1444(a) from a final
judgment of the Superior Court. A Petition for Writ of Certiorari was also filed asking
us to allow review of his conviction in the event we deem his oral notice of appeal
insufficient. Defendant also appeals from the civil judgment entered against him,
but he did not file a notice of appeal that satisfies the requirements of N.C. R. App.
P. 3(a). Accordingly, Defendant has filed a Petition for Writ of Certiorari concurrently
with his brief, seeking review under N.C. R. App. P. 21.
ANALYSIS
A. Jurisdiction
1. Motion to Dismiss
A threshold issue is whether we should allow the State’s Motion to Dismiss
Defendant’s Appeal from Civil Judgment. We have previously determined that
judgments entered against a defendant for attorney fees and appointment fees
constitute civil judgments, which require a defendant to comply with Rule 3(a) of the
North Carolina Rules of Appellate Procedure when appealing from those judgments.
State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 697 (2008) (citing State v.
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Opinion of the Court
Jacobs, 361 N.C. 565, 566, 648 S.E.2d 841, 842 (2007) (per curiam)). Rule 3(a)
provides that any party
entitled by law to appeal from a judgment or order of a
superior or district court rendered in a civil action or
special proceeding may take appeal by filing notice of
appeal with the clerk of superior court and serving copies
thereof upon all other parties within the time prescribed by
subsection (c) of this rule.
N.C. R. App. P. 3(a) (2019). Under Rule 3(c), a party must file and serve notice of
appeal within thirty days after entry of judgment. N.C. R. App. P. 3(c) (2019).
“Failure to give timely notice of appeal in compliance with . . . and [this rule] of the
North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely
attempt to appeal must be dismissed.” Booth v. Utica Mut. Ins. Co., 308 N.C. 187,
189, 301 S.E.2d 98, 99-100 (1983).
Here, the criminal judgment against Defendant was entered on 10 May 2018,
while the civil judgment granting attorney fees was entered on 28 June 2018.
Defendant gave oral notice of appeal from the criminal judgment in open court on 10
May 2018. The Record, however, does not indicate that Defendant gave written notice
of appeal from the 28 June 2018 civil judgment in accordance with the requirements
of Rule 3(a).
Defendant concedes in his Petition for Writ of Certiorari, “[t]he time for filing
a valid notice of appeal has now expired and [Defendant] may lose his appeal of right.”
We allow the State’s Motion to Dismiss Defendant’s Appeal from Civil Judgment
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Opinion of the Court
imposing attorney fees. As the State’s motion to dismiss is allowed, we turn to
whether we should allow Defendant’s Petition for Writ of Certiorari.
2. Petition
“The writ of certiorari may be issued in appropriate circumstances by either
appellate court to permit review of the judgments and orders of trial tribunals when
the right to prosecute an appeal has been lost by failure to take timely action.” N.C.
R. App. P. 21(a)(1) (2019). We have discretion to allow certiorari to review all
judgments. State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (2005)
(“While this Court cannot hear defendant’s direct appeal [for failure to comply with
Rule 4], it does have the discretion to consider the matter by granting a petition for
writ of certiorari[.]”). As discussed above, Defendant failed to comply with the
requirements for appealing the civil judgment. He also failed to meet the Rule 4
requirements for appealing a criminal judgment because, as he admits, “the oral
notice of appeal may have been insufficient and a written notice of appeal was not
filed pursuant to Rules 4(b) and 4(c) of the North Carolina Rules of Appellate
Procedure[.]” Defendant may also be denied his right to appeal the 10 May 2018
criminal judgment for not meeting these requirements, but Defendant contends it
would be in the interest of justice for us to allow his appeals of the criminal and civil
judgments entered against him.
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Opinion of the Court
In the exercise of our discretion, we allow the Petition for Writ of Certiorari
here as it relates to Defendant’s criminal conviction and sentencing. Whether we
should allow the Petition for Writ of Certiorari as it relates to the civil judgment for
attorney fees is a separate question.
We have stated that, under N.C.G.S. § 7A-455(b), “the trial court may enter a
civil judgment against a convicted indigent defendant for the amount of fees incurred
by the defendant’s court-appointed attorney.” State v. Jacobs, 172 N.C. App. 220,
235, 616 S.E.2d 306, 316 (2005). We have declared that a defendant is entitled to
notice and the opportunity to be heard regarding the amount of the fee award:
[B]efore entering money judgments against indigent
defendants for fees imposed by their court-appointed
counsel under N.C.G.S. § 7A-455, trial courts should ask
defendants—personally, not through counsel—whether
they wish to be heard on the issue. Absent a colloquy
directly with the defendant on this issue, the requirements
of notice and opportunity to be heard will be satisfied only
if there is other evidence in the record demonstrating that
the defendant received notice, was aware of the
opportunity to be heard on the issue, and chose not to be
heard.
State v. Friend, 257 N.C. App. 516, 523, 809 S.E.2d 902, 907 (2018).
After Defendant’s sentencing, the transcript reveals that Defendant’s counsel’s
total hours and corresponding fees were not yet available and that the trial court did
not engage Defendant in a colloquy to afford him the opportunity to be heard on his
court-appointed attorney fee. We allow the petition and issue the writ to review the
civil judgment.
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Opinion of the Court
B. Plain Error
The first substantive issue on appeal is whether the trial court committed plain
error when it admitted two photos into evidence under Rules 901 and 403. We “apply
the plain error standard of review to unpreserved instructional and evidentiary errors
in criminal cases.” State v. Maddux, 371 N.C. 558, 564, 819 S.E.2d 367, 371 (2018)
(reaffirming the plain error standard from State v. Lawrence, 365 N.C. 506, 518, 723
S.E.2d 326, 334 (2012)). One element of plain error is the alleged error “must
seriously affect the fairness, integrity or public reputation of judicial proceedings.”
State v. Thompson, 254 N.C. App. 220, 224, 801 S.E.2d 685, 693 (2017) (internal
marks and citations omitted); see State v. Juarez, 369 N.C. 351, 358, 794 S.E.2d 293,
300 (2016) (holding our “analysis was insufficient to conclude that the alleged error
rose to the level of plain error” when we “failed to analyze whether such error had the
type of prejudicial impact that seriously affected the fairness, integrity or public
reputation of the judicial proceeding”) (internal marks and citation omitted). “[P]lain
error is to be ‘applied cautiously and only in the exceptional case.’” Maddux, 371 N.C.
at 564, 819 S.E.2d at 371 (quoting Lawrence, 365 N.C. at 518, 723 S.E.2d at 334).
Moreover, “[i]ssues not presented in a party’s brief, or in support of which no
reason or argument is stated, will be taken as abandoned.” N.C. R. App. P. 28(b)(6)
(2019); see State v. Steen, 352 N.C. 227, 264, 536 S.E.2d 1, 23 (2000) (concluding that
a defendant abandoned an assignment of error when the defendant made “no such
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assessment or argument with cited authorities” and did “not present [the] assignment
of error in a way for this Court to give it meaningful review”). It is not our role “to
create an appeal for an appellant.” Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402,
610 S.E.2d 360, 361 (2005). “That burden rests solely with the appellant.” Krause v.
RK Motors, LLC, 252 N.C. App. 135, 140, 797 S.E.2d 335, 339 (2017). Defendant is
missing necessary reasons or arguments as to why the alleged error rises to plain
error. He offers nothing on why this is an exceptional case or why this will seriously
affect the fairness, integrity, or public reputation of judicial proceedings. Even if
there are no magic words required to invoke our plain error analysis, we do not see
the words “exceptional,” “fairness,” “integrity,” or “reputation” anywhere in
Defendant’s briefs. Without any information on this portion of plain error review, we
cannot impart any meaningful review for plain error. Thus, this issue is taken as
abandoned and is dismissed.
C. Sentencing
Defendant argues that he is entitled to a new sentencing hearing. He contends
the trial court erred in finding an aggravating factor beyond a reasonable doubt.
Sentencing errors are preserved for appellate review even if the defendant fails to
object at the sentencing hearing. State v. Jeffery, 167 N.C. App. 575, 579, 605 S.E.2d
672, 674 (2004). We review sentencing errors for “whether [the] sentence is supported
by evidence introduced at the trial and sentencing hearing.” State v. Deese, 127 N.C.
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App. 536, 540, 491 S.E.2d 682, 685 (1997). Whether the sentence is supported by
sufficient evidence is a question of law, see State v. Williams, 92 N.C. App. 752, 753,
376 S.E.2d 21, 22 (1989), we review de novo. State v. Cox, 367 N.C. 147, 151, 749
S.E.2d 271, 275 (2013).
The State has the burden of proof to establish the existence of an aggravating
factor beyond a reasonable doubt. N.C.G.S. § 15A-1340.16(a) (2019). If “the trial
judge errs in finding an aggravating factor and imposes a sentence in excess of the
presumptive term, the case must be remanded for a new sentencing hearing.” State
v. Wilson, 338 N.C. 244, 259, 449 S.E.2d 391, 400 (1994).
Here, the State sought to use aggravating factor 12a at sentencing, requiring
it to prove that “[t]he defendant ha[d], during the 10-year period prior to the
commission of the offense for which the defendant [was] being sentenced, been found
by a court of this State to [have been] in willful violation of the conditions of probation
imposed pursuant to a suspended sentence[.]” N.C.G.S. § 15A-1340.16(d)(12a) (2015).
However, as the State admits, the prosecutor “did not present evidence at trial that
defendant violated conditions of probation at any time prior to the commission of the
current offense.” The State concedes, and we agree, there was insufficient evidence
presented at trial to support the finding of an aggravating factor. We thus vacate the
sentence imposed and remand to the trial court for resentencing.
D. Attorney Fees
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Opinion of the Court
Defendant argues the trial court erred in ordering the payment of
court-appointed attorney fees without affording him a direct opportunity to be heard
on the issue. Whether the trial court gave a defendant adequate “notice and an
opportunity to be heard regarding the total amount of hours and fees claimed by the
court-appointed attorney” is a question of law, Jacobs, 172 N.C. App. at 236, 616
S.E.2d at 317, we review de novo. Cox, 367 N.C. at 151, 749 S.E.2d at 275. To have
been given an “opportunity to be heard,” “trial courts should ask defendants—
personally, not through counsel—whether they wish to be heard on the issue.” See
Friend, 257 N.C. App. at 523, 809 S.E.2d at 907.
Absent a colloquy directly with the defendant on this issue,
the requirements of notice and opportunity to be heard will
be satisfied only if there is other evidence in the record
demonstrating that the defendant received notice, was
aware of the opportunity to be heard on the issue, and
chose not to be heard.
Id.
The State admits that neither “the transcript nor the Record on Appeal in this
case indicate that [D]efendant was afforded any opportunity to be heard on this
issue.” It also “concedes that if the [Petition for Writ of Certiorari] is granted, the
civil judgment for attorney[] fees must be vacated and remanded to the trial court for
further proceedings.” We agree with the State’s concession where the trial court
never directly asked Defendant whether he wished to be heard on the issue and there
is no other evidence that the Friend structure was satisfied. At best, the trial court
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asked Defendant’s lawyer to “guesstimate [the number of hours worked] so
[Defendant] will have an idea as to what the legal fees will be?” The trial judge then
said, “I don’t know if [Defendant] is aware, to the extent you can separate his out
from the others.” This question and statement to Defendant’s counsel is insufficient
evidence to demonstrate that Defendant received notice, was aware of the
opportunity to be heard on the attorney fees issue, or chose not to be heard. Thus, we
vacate the civil judgment for attorney fees and remand to the trial court for further
proceedings.
E. Ineffective Assistance of Counsel
Defendant last argues that, in the event we do not find plain error, we should
analyze whether his defense counsel at trial invited error by stating he “had no
objection for illustrative purposes” to the admission of certain pictures. Defendant
argues his constitutional right to receive effective assistance of counsel was violated
if defense counsel’s actions invited error.
“To prevail on a claim of ineffective assistance of counsel, a defendant must
first show that his counsel’s performance was deficient and then that counsel’s
deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626
S.E.2d 271, 286 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 80
L. Ed. 2d 674 (1984)). However, “[i]t is well established that ineffective assistance of
counsel claims brought on direct review will be decided on the merits [only] when the
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cold record reveals that no further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the appointment of
investigators or an evidentiary hearing.” State v. Burton, 251 N.C. App. 600, 604,
796 S.E.2d 65, 68 (2017) (quoting State v. Turner, 237 N.C. App. 388, 395, 765 S.E.
2d 77, 83 (2014)). “[S]hould [we] determine that IAC claims have been prematurely
asserted on direct appeal, [we] shall dismiss those claims without prejudice to the
defendant’s right to reassert them during a subsequent motion for appropriate relief
proceeding.” State v. Stimson, 246 N.C. App. 708, 713, 783 S.E.2d 749, 752 (2016)
(quoting State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (alterations
omitted)).
Here, defense counsel did object to the admission of two pictures “for
substantive purposes,” but he had “no objection for illustrative purposes.” Defendant
makes no argument about what the prevailing professional norms are in that
situation, nor does he argue that an objection to the admission of evidence for
substantive purposes is insufficient to uphold such norms. The cold record reveals
that further investigation is required. Hence, we decline to reach this issue and
dismiss without prejudice to Defendant’s ability to file a motion for appropriate relief
in the trial court.
CONCLUSION
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Opinion of the Court
We conclude Defendant has abandoned his plain error argument because
Defendant has not argued whether the alleged error would seriously affect the
fairness, integrity, or public reputation of judicial proceedings. We vacate the civil
judgment for attorney fees, vacate Defendant’s aggravated sentence, and remand to
the trial court for further proceedings on both matters. We also dismiss without
prejudice Defendant’s ineffective assistance of counsel claim.
DISMISSED IN PART; VACATED AND REMANDED IN PART.
Judges TYSON and YOUNG concur.
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