State v. McDonald ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-672
Filed 01 August 2023
Robeson County, No. 11 CRS 711839
STATE OF NORTH CAROLINA
v.
KENNETH MARTIN MCDONALD, Defendant.
Appeal by Defendant from judgment entered 3 February 2022 by Judge Tiffany
Peguise-Powers in Robeson County Superior Court. Heard in the Court of Appeals
22 March 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Michael T.
Henry, for the State.
Patterson Harkavy LLP, by Narendra K. Ghosh and Paul E. Smith, for
Defendant.
GRIFFIN, Judge.
Defendant Kenneth Martin McDonald pled guilty to misdemeanor death by
motor vehicle and the trial court continued judgment. Years later, the State prayed
judgment on that conviction and the motion was allowed by the trial court. Defendant
appeals from that judgment. Defendant contends the trial court erred in entering
judgment because (1) the prayer for judgment continued (“PJC”) was intended to be
a final judgment and (2) the nearly seven-year delay in entering judgment was
unreasonable. We affirm.
STATE V. MCDONALD
Opinion of the Court
I. Factual and Procedural Background
This case arises from a vehicular collision between Defendant’s vehicle and a
motorcycle, resulting in the death of the motorcycle driver. The evidence at trial
tended to show as follows:
On 6 October 2011, Defendant was preparing to make a left turn when he
stopped his vehicle about three feet over the center yellow lines and into the
neighboring lane. Ricky Oldfield was traveling on a motorcycle in the left, oncoming
lane toward Defendant at that time. Oldfield saw Defendant stop in front of him and
attempted to stop his motorcycle by engaging the brakes and sliding. Oldfield was
unable to stop and collided with Defendant’s vehicle. Oldfield hit his head on the
front bumper of Defendant’s car and died as a result of the accident.
Defendant was charged with misdemeanor death by motor vehicle. Defendant
pled not guilty and his case came on for trial in April 2012 in Robeson County District
Court. On 25 April 2012, Defendant was found guilty of misdemeanor death by
vehicle and the District Court imposed a suspended sentence of twelve months of
probation. Defendant appealed to superior court.
On 28 October 2014, Defendant pled guilty to the charge of misdemeanor death
by vehicle in Robeson County Superior Court. Defendant’s plea agreement stated
that, as conditions for the acceptance of his plea, “Defendant shall plead guilty” and
“Defendant shall acknowledge responsibility in open court.” The agreement further
stated that the trial court would “then enter a Prayer for Judgment in this matter.”
-2-
STATE V. MCDONALD
Opinion of the Court
The trial court proceeded to sentencing following Defendant’s plea. During
sentencing, Defendant issued an apology to the court and to Oldfield’s family. After
hearing from Defendant and Oldfield’s family, the trial court concluded the hearing
with the following remarks:
Pursuant to the transcript of plea, judgment’s continued in
this matter upon payment of the costs.
I hope that both sides can have some peace and resolution
in this matter.
...
I wish both sides every good fortune.
The trial court then entered a written order “that prayer for judgment be continued
from day to day, week to week, term to term until further motion of the state, upon
payment of cost.”
On 14 August 2020, nearly six years later, the State filed a motion to calendar
and pray judgment after Defendant was charged with involuntary manslaughter in
connection with another motor vehicle accident. On 25 September 2020, Defendant
filed a motion in opposition. On 3 February 2022, the trial court filed a written
judgment granting the State’s motion to pray judgment and entering judgment on
Defendant’s 2014 conviction, sentencing Defendant to 150 days’ imprisonment,
suspended for twelve months of supervised probation. Defendant appeals.
II. Analysis
-3-
STATE V. MCDONALD
Opinion of the Court
Defendant contends the trial court erred in allowing the State’s prayer for
judgment and entering judgment on his 2014 conviction because (1) the court
intended for his PJC to be a final judgment and (2) it was unreasonable to delay entry
of judgment until nearly seven years after Defendant’s conviction.
A. Jurisdiction
Defendant acknowledges he has no right to appeal from the entry of judgment
upon his guilty plea. Accordingly, Defendant asks this Court to grant his petition for
a writ of certiorari pursuant to N.C. Gen. Stat. § 15A-1444(e). See N.C. Gen. Stat. §
15A-1444(e) (2021) (stating a defendant who pleads guilty and thus has no right to
appeal “may petition the appellate division for review by writ of certiorari”). We
exercise our discretionary authority and grant review. See State v. Posner, 277 N.C.
App. 117, 120, 857 S.E.2d 870, 872 (2021).
B. The PJC was not a Final Judgment
Defendant first argues the trial court erred in entering judgment in 2022
because the “2014 [PJC] was meant to be final.” This Court reviews the issue of
whether a PJC constitutes a final judgment de novo. See State v. Popp, 197 N.C. App.
226, 228, 676 S.E.2d 613, 614 (2009).
“A trial court has the inherent power to designate the manner by which its
judgments shall be executed.” State v. Lea, 156 N.C. App. 178, 180, 576 S.E.2d 131,
132 (2003). “For example, a court is authorized to continue a case to a subsequent
date for sentencing.” Id. “This continuance is frequently referred to as a ‘[PJC]’ and
-4-
STATE V. MCDONALD
Opinion of the Court
vests a trial judge presiding at a subsequent session of court with the jurisdiction to
sentence a defendant for crimes previously adjudicated.” Id. “When, however, the
trial judge imposes conditions ‘amounting to punishment’ on the continuation of the
entry of [the] judgment, the judgment loses its character as a PJC and becomes a final
judgment.” State v. Brown, 110 N.C. App. 658, 659, 430 S.E.2d 433, 434 (1993)
(citation omitted). We have held that fines and imprisonment terms constitute
conditions “amounting to punishment,” and transforming a PJC into a final
judgment, while conditions requiring a defendant to “obey the law” and pay court
costs do not cause such a change. Id.; State v. Absher, 335 N.C. 155, 157, 436 S.E.2d
365, 366 (1993) (“In this state, we have made a distinction between cases in which
prayer for judgment is continued with conditions imposed and cases in which prayer
for judgment is continued without any conditions.”).
Defendant argues his PJC became a final judgment by operation of law because
the trial court included a condition amounting to punishment. Specifically,
Defendant’s argument turns upon the fact that his PJC was allowed only after he
“acknowledge[d] responsibility in open court” by an oral apology, as outlined in his
plea agreement.
Defendant relies on this Court’s decision in State v. Popp to support his
contention. In Popp, the defendant agreed to plead guilty to certain crimes charged
upon the condition that the State would dismiss other charges. The trial court then
continued judgment on the defendant’s conviction, but also ordered him to “abide by
-5-
STATE V. MCDONALD
Opinion of the Court
a curfew, complete high school, enroll in an institution of higher learning or join the
armed forces, cooperate with random drug testing, complete 100 hours of community
service, remain employed, and write a letter of apology.” Popp, 197 N.C. App. at 228,
676 S.E.2d at 615. On appeal, our Court held that the defendant had been “ordered
to complete a number of conditions which [were] beyond a requirement to obey the
law,” and his PJC therefore “lost its character as a PJC and was transformed into a
final judgment.” Id. at 228, 676 S.E.2d at 615. In the similar case of State v. Brown,
our Court found the defendant was required to do more than obey the law when he
was ordered to continue mental health treatment in the future. Brown, 110 N.C. App.
at 659, 430 S.E.2d at 434. Notably, the defendants in Popp and Brown were ordered
to take actions following the grant of their PJCs which would require further court
supervision or monitoring by the State.
Defendant’s case is distinguishable from both Popp and Brown. In Popp and
Brown, the defendants’ PJCs were predicated on additional conditions which were to
be completed after entry of the PJC. In the present case, Defendant was asked to
follow through on his promise to issue an oral apology, after he had formally admitted
responsibility in his plea agreement. Indeed, Defendant concedes in his brief on
appeal that “[r]equiring [Defendant] to make an apology was . . . part of the ‘terms
and conditions’ of the plea agreement”—terms which included that Defendant would
receive a PJC. The language of Defendant’s plea agreement shows that he signed the
-6-
STATE V. MCDONALD
Opinion of the Court
plea upon consideration that he would receive a PJC. He cannot now claim that the
State’s reciprocal terms were an improper condition on that subsequent PJC.
Once the PJC was granted, Defendant was free of additional requirements;
other than the general requirement to obey the law. The State prayed for judgment
in this case only after Defendant was charged with a separate, but similar, crime.
Defendant was not ordered to complete any condition that amounted to punishment
transforming his PJC into a final judgment.
Defendant further argues the trial court intended the judgment to be final
because the trial judge stated in open court that he hoped “both sides can have some
peace and resolution in the matter” following entry of Defendant’s PJC. Defendant’s
brief cites no authority in support of this argument. Rule 28(b)(6) of the North
Carolina Rules of Appellate Procedure requires that, in an appellant’s brief on appeal,
“[t]he body of the argument and the statement of applicable standard(s) of review
shall contain citations of authorities upon which the appellant relies.” N.C. R. App.
P. 28(b)(6). Defendant cites no authority and his argument is therefore abandoned.
See Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 401–02, 610 S.E.2d 360, 361 (2005).
Nonetheless, assuming that this issue is properly before us, we are not persuaded
that the trial court’s statement caused Defendant’s PJC to become a final judgment.
Our criminal justice system consents to the entry of PJCs with purposeful hope that
further action by the courts will not be necessary, while understanding that the need
for such action may arise. See State v. Miller, 225 N.C. 213, 215, 34 S.E.2d 143, 145
-7-
STATE V. MCDONALD
Opinion of the Court
(1945) (discussing that PJCs give a defendant the opportunity to escape punishment
altogether). The trial judge’s statements following heartfelt presentations from
Defendant and Oldfield’s family were well-wishes for the future, not statements of
binding legal effect.
We hold that Defendant’s PJC was not a final judgment. We now turn to
whether it was reasonable for the court to enter judgment on Defendant’s 2014
conviction in 2022.
C. The Trial Court’s Delay was Not Unreasonable
Defendant argues the trial court erred in entering judgment because “the delay
in the State’s prayer for judgment was unreasonable.” This Court reviews the issue
of whether the delay between a PJC and the entry of judgment on the continued
conviction was unreasonable de novo. State v. Degree, 110 N.C. App. 638, 641, 430
S.E.2d 491, 493 (1993).
A continuance resulting from a PJC “may be for a definite or indefinite period
of time, but in any event the sentence must be entered ‘within a reasonable time’ after
the conviction.” Id. The State is authorized, pursuant to N.C. Gen. Stat. § 15A-
1416(b)(1), to motion for prayer for judgment “[a]t any time after verdict.” Id.; N.C.
Gen. Stat. § 15A-1416(b)(1) (2021). Nonetheless, “the State’s failure to do so within
a reasonable time divests the trial court of jurisdiction to grant the motion.” Id.
“‘Deciding whether sentence has been entered within a ‘reasonable time’ requires
consideration of [1] the reason for delay, [2] the length of delay, [3] whether defendant
-8-
STATE V. MCDONALD
Opinion of the Court
has consented to the delay, and [4] any actual prejudice to [the] defendant which
results from the delay.’” State v. Marino, 265 N.C. App. 546, 550, 828 S.E.2d 689, 693
(2019) (citation omitted); see Absher, 335 N.C. at 156, 436 S.E.2d at 366 (“As long as
a prayer for judgment is not continued for an unreasonable period . . . and the
defendant was not prejudiced . . . , the court does not lose the jurisdiction to impose a
sentence.”).
In this case, Defendant’s judgment was entered almost seven years after
judgment on Defendant’s conviction was continued. Based upon the circumstances
of this particular case, we hold that this delay was not unreasonable.
The State delayed its motion to pray judgment because it had no reason to do
so before Defendant was charged with another motor vehicle offense. The delay was
not caused by the State’s negligence or failure to otherwise timely pray for judgment,
and judgment was not continued for a definite period of time shorter than seven
years. See State v. Pelley, 221 N.C. 487, 20 S.E.2d 850, 857 (1942) (finding no error
in entry of judgment after seven-year delay, while conceding that jurisdiction would
have been lost if court had failed to seek custody of the defendant prior to the
prescribed five-year fixed continuance term); Degree, 110 N.C. App. at 641, 430 S.E.2d
at 493 (affirming entry of continued judgment where “[t]he record [did] not reveal any
improper purpose for the delay in sentencing”). Rather, Defendant was charged with
a similar crime and the State motioned to calendar and pray judgment soon
thereafter, even before Defendant’s trial on the new charge. The length of the delay
-9-
STATE V. MCDONALD
Opinion of the Court
in this case mirrors that of the longest delay this Court has previously found
acceptable, see Pelley, 221 N.C. 487, 20 S.E.2d at 857, and, in light of Defendant’s
additional, similar charges, we see no reason to reach a different result.
Whatever weight we would give to the somewhat novel length of delay in this
case is diminished by Defendant’s consent to the delay. This Court has consistently
held that, where a defendant does not initially object to PJC and does not thereafter
ask for judgment to be entered, his actions are “tantamount to consent.” See Lea, 156
N.C. App. at 182, 576 S.E.2d at 131 (holding the defendant’s actions were
“‘tantamount to his consent’” where “the record [did] not show that [the] defendant []
objected to the continuation of the prayer for judgment or that he ever requested that
the trial court enter judgment” (citation omitted)); Degree, 110 N.C. App. at 641–42,
430 S.E.2d at 493 (holding the defendant’s failure to request “judgment be
pronounced” prior to a particular date, even where that date was definitely
prescribed, was “tantamount to his consent to a continuation of the sentencing
hearing beyond that date”). Most notably, in State v. Marino, this Court affirmed
entry of a continued judgment where the defendant “did not object to the trial court’s
PJC entered upon [the defendant’s guilty] plea, and thereafter [the defendant] never
requested the trial court enter judgment on his conviction.” Marino, 265 N.C. App.
at 554, 828 S.E.2d at 695. The defendant’s “failure to do either [was] ‘tantamount to
his consent to a continuation of judgment during that time period.” Id. (citation
omitted).
- 10 -
STATE V. MCDONALD
Opinion of the Court
This factor routinely supports the reasonableness of a delayed entry of
judgment, except in rare cases where the defendant does request that his judgment
be entered at an earlier time and the State fails to timely comply. We note a majority
of our cases, which treat a defendant’s failure to request entry of judgment as consent,
involve either actions by the defendant which may materially and beneficially affect
the defendant’s sentencing; a definite, prescribed period of continuation; or both. See,
e.g., id. (affirming where purpose of delay was to allow the defendant to provide
“substantial assistance” to the State and receive a lower sentence as a result); Degree,
110 N.C. App. at 641–42, 430 S.E.2d at 493 (affirming where the defendant did not
request entry of judgment on or before the prescribed date when his definite
continuance period was to end). However, our Courts have never found either of these
factual circumstances to be required for a defendant’s failure to request entry of
judgment to constitute consent. Rather, they are relevant facts to consider when
weighing the reasonableness of the State’s delay. Here, Defendant did not prolong
the State’s ability to pray judgment at an earlier time, nor was his judgment
continued for a definite time. We cannot say that these circumstances negate the
benefit Defendant received by allowing his judgment to remain continued for nearly
seven years.
Indeed, “there is a presumption that the [PJC] was made with the defendant’s
consent, if not at his request . . . , as an act of mercy to him, so that he might qualify
himself by his good behavior to receive further clemency from the court, and thus
- 11 -
STATE V. MCDONALD
Opinion of the Court
avoid the rigor of the law.” State v. Everitt, 164 N.C. 399, 79 S.E. 274, 276 (1913).
Defendant’s actions here were substantially similar to the defendant’s conduct in
Marino, and we reach the same result.
Lastly, Defendant cannot show actual prejudice due to the delay. Defendant
argues that he has been prejudiced because the State destroyed all criminal discovery
associated with this case before March 2020, thus frustrating the court’s ability to
appropriately review the evidence during sentencing. However, Defendant pled
guilty to the underlying conviction and stipulated to the factual basis supporting the
guilty plea. There is nothing in the record that indicates Defendant was denied
discovery when he knowingly and voluntarily pled guilty in superior court. He had
the benefit of a trial in district court and any access afforded him in the superior court
prosecution. Based upon the stipulated facts and Defendant’s prior record level as of
2014, Defendant received a sentence of 150 days, suspended for a term of twelve
months of supervised probation. Defendant cannot show that the outcome would
have differed had the State not destroyed its discovery in this case.
The Dissent presents a number of points to be considered in weighing the
factors for reasonableness in this case. We disagree, though, that these
considerations are both proper for this Court at this time and practically beneficial
advice for the effective administration of justice through PJCs. The present case
lacks factual circumstances that speak to why Defendant received a PJC or why he
never chose to pray judgment on his conviction. However, the record does show that
- 12 -
STATE V. MCDONALD
Opinion of the Court
if Defendant desired to avoid punishment for his 2014 conviction altogether, he
simply needed to follow the law and not commit a similar offense. If circumstances
arose, whatever they may be, such that Defendant deemed it favorable for him to
request entry of judgment, he was free to do so. This happens routinely with Chapter
20 motor vehicle violations. Regardless of how or for what reason Defendant would
do so, the record here shows that he never did request entry of judgment. That failure
to request is tantamount to consent.
The Dissent insists that the practical effects of our decision will dissuade
attorneys and defendants alike from employing PJCs in future cases, because a
criminal defendant would never agree to a PJC without a definite, reasonable ending
point to their potential liability. The Dissent’s reasoning is flawed. PJCs are
beneficial to the pursuit of justice under current law. The standard the Dissent
attempts to create would dissuade all parties from considering a PJC as a potential
resolution. Almost certainly, the Dissent’s standard would create more work for the
trial courts and give people charged with Chapter 20 motor vehicle violations fewer
tools to restore their privilege to drive lawfully. In their current form, interpreted as
we so hold, the State and a defendant may effectively negotiate PJCs, with the
consent of the court. This discretion allows criminal defendants to avoid the
consequences of their convictions indefinitely and gives the State a way to remain
faithful to their oath as well.
III. Conclusion
- 13 -
STATE V. MCDONALD
Opinion of the Court
We hold that Defendant’s 2014 PJC did not include conditions that converted
it into a final judgment, and the nearly seven-year delay between the PJC and the
subsequent entry of judgment was not unreasonable. We affirm the trial court’s
judgment.
AFFIRMED.
Judge FLOOD concurs.
Judge RIGGS dissents by separate opinion.
- 14 -
No. 22-672 – State v. McDonald
RIGGS, Judge, dissenting.
A prayer for judgment continued (“PJC”) is a longstanding procedural tool that
allows a judge to refrain from entering final judgment in a case, and this tool has
been developed to allow judges to encourage efficient resolutions in their courtrooms,
to promote rehabilitative resolutions in, most often, lower-level crimes, and to
generally promote fairness in criminal judicial proceedings. See Dionne R. Gonder-
Stanley, Facing A Legislative Straight Jacket in the 21st Century: N. Carolina Courts
& the Prayer for Judgment Continued, 40 N.C. Cent. L. Rev. 32, 46 (2017). A PJC
can be an act of judicial discretion which allows a defendant to satisfy his obligations
in criminal court in exchange for abiding by stipulated conditions for a reasonable
length of time. State v. Miller, 225 N.C. 213, 215-16, 34 S.E.2d 143, 145 (1945). But
this Court and the North Carolina Supreme Court have been clear that where a PJC
has been continued for an unreasonable length of time, the trial court will lose
jurisdiction to enter final judgment.1 This Court has held that the burden is on the
State to establish jurisdiction to enter judgment. State v. Watkins, 229 N.C. App.
628, 634, 747 S.E.2d 907, 912 (2013) (citing State v. Batdorf, 293 N.C. 486, 493, 238
1 It seems likely in this context that the term jurisdiction refers to the court’s authority to
enter a judgment rather than personal jurisdiction over the defendant or subject matter jurisdiction
over the issue. See, e.g., State v. Graham, 225 N.C. 217, 219 34 S.E.2d 146, 147 (1945) (rejecting a
defendant's argument that courts are "without authority to continue prayer for judgment and impose
sentence at a subsequent term" on the basis that "courts of general jurisdiction . . . have the power to
continue the case to a subsequent term for sentence" (emphasis added)).
STATE V. MCDONALD
RIGGS, J., dissenting
S.E.2d 497, 502 (1977) (holding that jurisdiction is a matter which, “when contested,
should be proven by the prosecution as a prerequisite to the authority of the court to
enter judgment”)).
In this case, the State did not meet its burden to establish jurisdiction in the
hearing; the PJC was used without stipulated conditions or a definite timeline; and
the entry of judgment was delayed more than seventeen times the maximum sentence
for the underlying misdemeanor. Given that, I would hold that delay in entry of final
judgment is unreasonable, and the trial court was divested of jurisdiction to enter
judgment. Therefore, I respectfully dissent.
I. Analysis
The majority’s analysis relies on cases that I believe are distinguishable. And,
in extending the time before final entry of judgment, the majority’s opinion introduces
unintended consequences that will impede the ability of attorneys to give sound
advice to their clients and of criminal defendants to make informed decisions. By
approving the lengthy delay at issue in this case without any justifiable extenuating
circumstances previously accepted under our precedents, the majority creates a legal
landscape marked by uncertainty; a criminal defendant will not know what they must
do to end their formal interaction with the criminal justice system, nor will they know
when that relationship might reasonably come to an end. In fact, this uncertainty
disincentives the settlement of cases with PJCs that can help to keep judicial
workloads manageable.
2
STATE V. MCDONALD
RIGGS, J., dissenting
To be clear, this Court has held that a PJC may be for a definite or indefinite
period; however, the prayer for judgment may not be continued for an unreasonable
period or the court will lose jurisdiction to enter judgment. State v. Absher, 335 N.C.
155, 156, 436 S.E.2d 365, 366 (1993); see also State v. Lea, 156 N.C. App. 178, 180,
576 S.E.2d 131, 132 (2003) (“The continuance may be for a definite or indefinite period
of time, but, in any event, the sentence must be entered within a reasonable time
after the conviction or plea of guilty.”). The trial court can include conditions with
the entry of a PJC, but not conditions that constitute punishment, at least not without
converting that PJC to a final judgment. State v. Popp, 197 N.C. App. 226, 228, 676
S.E.2d 613, 614 (2009) (internal citations omitted). “Conditions ‘amounting to
punishment’ include fines and imprisonment. Conditions not ‘amounting to
punishment’ include ‘requirements to obey the law,’ and a requirement to pay the
costs of court.” Id. (quoting State v. Brown, 110 N.C. App. 658, 659, 430 S.E.2d 433,
434 (1993)).
While Mr. McDonald has argued that the PJC was, in essence, converted to
final judgment on the date it was entered, I do not find that argument, standing alone,
persuasive. Instead, I believe the determinative question presented is whether the
delay in this case was so unreasonable such that it deprived the trial court of
jurisdiction to entry final judgment seven years after the PJC was entered.
The perceived finality of the judgment is relevant in the analysis of the
reasonableness of the length of the delay. To determine if the delay in entering
3
STATE V. MCDONALD
RIGGS, J., dissenting
judgment is reasonable such that the trial court retains jurisdiction, this Court
considers: (1) the reason for the delay; (2) the length of delay; (3) whether the
defendant has consented to the delay; and (4) any actual prejudice which results from
the delay. State v. Degree, 110 N.C. App. 638, 641, 430 S.E.2d 491, 493 (1993). These
factors, when considered together, are both consistent with the public policy reasons
behind the existence of PJCs and comport with due process guarantees. See, e.g.,
Betterman v. Montana, 578 U.S. 437, 439, 194 L. Ed. 2d 723, 727 (2016) (noting that
an unreasonable delay before sentencing may raise due process concerns). It is
axiomatic that all parties—the State and criminal defendants—must be able to
understand the contours of judicial involvement in a criminal matter and when and
how that criminal matter will come to an end. See State v. Ward, 46 N.C. App. 200,
205, 264 S.E.2d 737, 740 (1980) (noting the State’s and criminal defendants’
numerous interests in the timely resolution of criminal charges); Teague v. Lane, 489
U.S. 288, 309, 103 L. Ed. 2d 334, 355 (1989) (“[T]he principle of finality . . . is essential
to the operation of our criminal justice system.”).
In this case, I would find that each of the factors utilized in analyzing the
reasonableness of the delay, individually and collectively, lend themselves to a
conclusion that the delay here was unreasonable and the trial court did, in fact, lose
jurisdiction. First, because the trial court did not identify the purpose of the prayer
for judgment and there seemed to be good faith misunderstanding of the purpose, the
unascertainable reason for the continuance cannot be used to justify a long delay;
4
STATE V. MCDONALD
RIGGS, J., dissenting
second, the trial court did not provide Mr. McDonald with sufficiently definite
instructions on how he might end the court’s oversight such that he could make
informed consent to the delay; third, the length of the delay significantly exceeds the
boundaries, in analogous cases, previously approved by this Court for PJCs without
predetermined timelines; and finally, the delay prejudiced Mr. McDonald.
1. The Reason for the PJC was Unclear and the Parties Were Not of
Accord on that Reasoning
In this case, the reason for the delay in entry of the PJC does not support
approving the delayed entry of judgment. The State argues that this was a
conditional prayer for judgment that would continue until Mr. McDonald committing
this or a similar crime. The problem with that argument is that it has no temporal
bounds and inevitably runs afoul of this Court’s rule that the PJC may not be used
for an unreasonable period. Degree, 110 N.C. App. at 641, 430 S.E.2d at 493. Put
another way, this reason is not compelling to justify the delay because it has no
reasonable bounds – this motivation can be used forever to justify delay. A person
could commit a similar crime 10 years, 20 years, or 50 years down the road. Thus,
the State’s justification has no logical end and does not justify delay where it could
also be used and extended to violate our Court’s rule that trial courts lose jurisdiction
where there is an unreasonable delay before entry of final judgment. Lea, 156 N.C.
App. at 180, 576 S.E.2d at 132.
5
STATE V. MCDONALD
RIGGS, J., dissenting
Conversely, Mr. McDonald and the attorney who represented him in 2014
believed that this prayer for judgment was the final resolution of the case. That is, it
seems that Defendant and his counsel did not believe that he was in a situation where
he was engaged in this longstanding relationship with the court for years long
oversight under the PJC. Therein lies the problem.
There are, of course, multiple reasons why a trial court or a defendant may
want (or agree to) continued interactions with and supervision of a criminal
defendant (and thus delay in entry of final judgment). See State v. Johnson, 169 N.C.
311, 311, 84 S.E. 767, 768 (1915) (affirming an order continuing a prayer for judgment
“upon condition of good behavior” for three years); see also State v. Hilton, 151 N.C.
687, 692 65 S.E. 1011, 1014 (1909) (explaining that prayer for judgment can be used
for defendant to return to court to show good faith in some promise of reformation or
continued obedience to the law). Alternatively, a PJC may be intended to serve as a
final disposition in lieu of sentencing. See, e.g., Smith v. Gilchrist, 749 F.3d 302, 305
n. 2, (4th Cir. 2014) (describing the use of PJC combined with driving school for
efficient resolution of a moving traffic violation which benefits the court system by
freeing up resources to handle other matters while allowing defendants to avoid
increased insurance premiums). But where the intentions behind and intended effect
of the PJC is unclear from the record, I would not hold that an unknown reason for
the continuance can justify a delay this lengthy.
6
STATE V. MCDONALD
RIGGS, J., dissenting
A recent trend in PJC statutes reaffirms the necessity for clarity in this area
of the law. Our courts have used PJCs for over 100 years in all areas where
sentencing is not mandated, with limited intercession by the General Assembly. In
re Greene, 297 N.C. 305, 312, 255 S.E.2d 142, 147 (1979). In the 2011-12 session, the
General Assembly passed legislation that expressly prohibited PJCs where the time
before entry of judgment was continued more than a total of 12 months.2 N.C. Gen.
Stat. § 15A-1331.2 (2021). While this statute applies only to PJCs used in certain
kinds of felony cases, it still indicates a legislative intent consistent with our courts’
precedents, requiring some definition or limit to the terms for PJCs. During the
discussion on this bill in the State House, Representatives discussed how the PJC
was a valuable tool, but it requires clarity of scope to ensure it is used properly. House
Audio Archives (28 Apr. 2011), https://www.ncleg.gov/Documents/9/1515 (remarks by
Rep. Guice, Rep. Spear, Rep. Engle, and Rep. Faircloth at 3:39:00 - 4:03:00)
In sum, I believe the lack of clarity about the reason for the lengthy
continuance—and the resulting confusion as to whether there even was an intended
continuance rather than a final adjudication by PJC—in conjunction with the
legislative trends to limit the time for entry of judgment after a PJC, counsel against
holding that the delay in sentencing was reasonable.
2 The statute allows the trial court to continue the PJC for up to one additional 12-month
period if in the interest of justice. N.C. Gen. Stat. § 15A-1331.2
7
STATE V. MCDONALD
RIGGS, J., dissenting
2. The Defendant Did Not and Could Not Have Consented to a PJC
Given the Indeterminate Length and Lack of Conditions Here
In the majority’s acknowledgment of the “somewhat novel length of delay” in
this case, the majority downplays the significance of the delay by asserting that, in
their opinion, Mr. McDonald consented to this delay. The majority points to State v.
Degree for the proposition that Defendant’s failure to request sentencing is
“tantamount to consent.” 110 N.C. App. at 641, 430 S.E.2d at 493. However, first,
consent is “[a] voluntary yielding to what another proposes or desires; agreement,
approval, or permission regarding some act or purpose.” Consent, Black’s Law
Dictionary (11th ed. 2019). In Degree, the defendant agreed to a PJC for a fixed period
of time of less than two weeks. 110 N.C. App. at 641, 430 S.E.2d at 493. That definite
period of time provided the basis for agreement, or consent. Unlike in Degree, there
was no end point in this case to which Mr. McDonald (or any criminal defendant)
could knowingly agree. Degree does not mandate the outcome achieved by the
majority: the rejection of any subsequent challenge to a delay in entry of judgment
where a criminal defendant agrees to a PJC without a specific time period.
The majority’s misreading of Degree and the outcome in this case would also
create an unintended deterrence to the settlement of Chapter 20 or misdemeanor
charges via a prayer for judgment. While our case law does not require that a prayer
for judgment must have a definite time period, Id. at 641, 430 S.E.2d at 493, it is hard
to fathom a criminal defendant agreeing to a prayer for judgment without a definite
8
STATE V. MCDONALD
RIGGS, J., dissenting
ending point if this Court is effectively issuing a rule holding that agreeing to an
indefinite prayer for judgment constitutes consent to entry of judgment even after a
delay of more than half a decade. This could limit the ability of courts and prosecutors
to bring needed resolution to families and to lessen their workloads.
A marked characteristic of cases where this Court has affirmed longer delays
in entry of judgment after a PJC on the basis of consent is that they have either had
a definite time period or specific conditions of the PJC – both of which create the basis
for informed consent for the PJC and an actual basis for assessing the reasonableness
of the delay. For example, in State v. Marino, the trial court agreed to grant a PJC
in exchange for the defendant providing substantial assistance in the conviction of a
co-conspirator. 265 N.C. App. 546, 554 n.5, 828 S.E.2d 689, 696 n.5 (2019). The PJC
required the State to pray for judgment within twelve months of the conviction. Id.The State moved for entry of judgment after nineteen months and this Court affirmed
that the delay was not unreasonable. Id. It follows, then, that the defendant in
Marino had information both on the approximate time frame and conditions that
were informing his consent. The same underlying logic applied to the smaller delay
incurred in Degree. 110 N.C. App. at 641-42, 430 S.E.2d at 493 (holding the
defendant’s failure to request judgment after expiration of the time set for the PJC
was “tantamount to his consent to a continuation of the sentencing hearing beyond
that date” (citations omitted)).
9
STATE V. MCDONALD
RIGGS, J., dissenting
Significantly, the majority does not discuss under what circumstance Mr.
McDonald, like the defendants in Marino and Degree, would know that he needed to
request an entry of judgment. Nor does it address how Mr. McDonald could act
affirmatively to end his interaction with the criminal justice system and bring closure
to his case. During the sentencing in 2014, the court asked Mr. McDonald if he
understood that he would “receive a prayer for judgment continued in this matter[.]”
However, the transcript does not include any discussion about what the prayer for
judgment continued actually meant in the context of this case—i.e., where there was
not a definite endpoint for the PJC and no conditions were detailed.
Neither the court nor the General Assembly have defined a clear process for
defendants to bring final closure to an indefinite-period PJC. The General Assembly
authorized the State to move for appropriate relief to enter a final judgment where a
PJC had been previously entered. N.C. Gen. Stat. § 15A-1416(b)(1) (2021). This
statutory enforcement mechanism is designed to address situations where a
defendant who has received a PJC has not satisfied the conditions imposed by the
court in exchange for the PJC. State v. Doss, 268 N.C. App. 547, 551 n.4, 836 S.E.2d
856, 858 n.4 (2019). However, the General Assembly has not created any similar
mechanism for a criminal defendant to end the coverage of an indefinite-period PJC.
Id. Doss quite squarely highlights the problem with the majority’s faulting Mr.
McDonald for failure to request final judgement without a clear mechanism to do so.
In Doss, this Court explained:
10
STATE V. MCDONALD
RIGGS, J., dissenting
Twenty years ago, in 1999, Defendant Jeffery Wade Doss
was found guilty of assault on a female in Forsyth County
District Court. The trial court entered a prayer for
judgment continued (PJC) on that charge. Two years ago,
in 2017, Defendant, now residing in West Virginia, was
informed that he was ineligible for a concealed carry permit
due to the 1999 matter. A year later, in 2018, Defendant
moved the Forsyth County District Court to enter a final
judgment on his 1999 matter, presumably so that he could
(1) appeal the matter to superior court in hopes that the
State would then be forced to dismiss the charge due to the
staleness of the matter and (2) he could then regain his
concealed carry permit in West Virginia.
Id. at 548, 836 S.E.2d at 856. The trial court denied that motion and the Court of
Appeals held that because the PJC was not a final judgment, there was no mechanism
for an appeal absent a petition for writ of certiorari. Id. at 550-51, 836 S.E.2d at 858.
How can it be that a defendant is both without a path to force final judgment and
deprived of his ability to complain of delayed final judgment because he did not force
entry of final judgment.
Not only is Mr. McDonald similarly faced without a mechanism to force entry
of a final judgment, the order itself, in this case, did not give this Defendant the option
to bring final closure to the PJC; the order specifically stated that the prayer for
judgment was continued “until further motion of the State.” (Emphasis added). The
situation in this case was further complicated by the fact that Mr. McDonald’s
attorney thought the PJC was a final judgment.
For these reasons, I do not think Mr. McDonald consented in a knowing and
informed way to the delay, and indeed, had no mechanism available to him to avoid
11
STATE V. MCDONALD
RIGGS, J., dissenting
his “consent” being fatal to his appeal here. Analysis under this factor weighs in favor
of concluding the delay was unreasonable.
3. The Length of the Delay Was Unreasonable
The majority here states that the length of delay in this case mirrors the
longest delay this Court has found acceptable. However, in the cases relied upon by
the majority, there were either multiple factors weighing in favor of the
reasonableness of the delay or other extenuating circumstances. I do not think those
cases mandate or even support the majority’s outcome here.
Generally, where our courts have affirmed entry of judgment after a longer
delay, the PJC had a predefined endpoint. See, e.g., State v. Thompson, 267 N.C. 653,
655-56, 148 S.E.2d 613, 615 (1966) (affirming entry of judgment and sentencing
roughly two years into a three-year PJC). Where no duration is established by the
trial court, lengthy delays in sentencing have been held to be reasonable, in some
cases, because of intervening appeals on related charges by the defendant or to
resolve some, but not all, of the criminal charges pending. For example, in State v.
Lea, the trial court entered a PJC on the lesser charges because the defendant was
serving a longer sentence on attempted second-degree murder charges. State v. Lea,
156 N.C. App. at 180, 576 S.E.2d at 133. The trial court entered judgment four years
after the PJC was granted when the North Carolina Supreme Court decided that the
crime of attempted second-degree murder did not exist in North Carolina. Id. This
Court held the delay was not unreasonable because the defendant was serving time
12
STATE V. MCDONALD
RIGGS, J., dissenting
on the other charges in the intervening four years. Id. In State v. Van Trussel, the
trial court entered judgment four years after a jury verdict. 170 N.C. App. 33, 36, 612
S.E.2d 195, 197 (2005). In Van Trussel, the court sua sponte entered a PJC on the
minor charges while the defendant appealed his convictions on the more serious
charges where sentences had been entered. Id at 35, 612 S.E.2d at 197. Here, Mr.
McDonald’s PJC had no definite term, and no intervening appeals justifying the delay
here.
The majority relies heavily on an 80-year-old case, State v. Pelley, as precedent
for a case where this Court approved a delay in judgment that approximated the
seven-year delay in this case. 221 N.C. 487, 495, 20 S.E.2d 850, 855 (1942). But the
facts of Pelley are distinguishable, and the simple reliance on the length of the delay
in Pelley, divorced from the extenuating circumstances in that case, creates a rule
that extends the permissible bounds of delayed entry of judgment without any
discernible limitations. In Pelley, the original PJC had a fixed term of five years; the
defendant was given a five-year suspended sentence with specified conditions on the
first count and a five-year PJC on the second count. Id. at 491, 20 S.E.2d 853.
This Court based its approval of the seven-year delay in Pelley because the
defendant violated the terms of the suspended sentence within the five-year period
and then absconded from the jurisdiction. Id. at 492, 20 S.E.2d 854-55. Law
enforcement found and arrested the defendant within the five-year period, but he was
arrested outside of North Carolina. Id. at 494, 20 S.E.2d 854-55. The defendant
13
STATE V. MCDONALD
RIGGS, J., dissenting
resisted his return to North Carolina, resulting in a two-year habeas battle before he
reentered the state. Id. at 494-95, 20 S.E.2d 855. Once the defendant returned to
North Carolina, the court entered judgment and this Court affirmed that delay in
entry of judgment as reasonable based upon the facts in that case. Id. at 495, 20
S.E.2d 855. Stated differently, two years of the asserted seven-year precedent in
Pelley was because that defendant left the state, violating specific conditions of his
suspended sentence, and then refused to return. That is hardly comparable to the
case here. Taking, as I do, the facts of Pelley being quite unusual in allowing the
justification of a seven-year delay, no other North Carolina case approves a delay
even remotely reaching the length here. Therefore, I would hold that the length of
delay in this case was unreasonable such that it divested the trial court of jurisdiction
to enter the judgment.
I find persuasive cases from other jurisdictions that take into consideration the
relationship between the length of the delay and the maximum penalty for the crime.
These courts have considered the length of the possible sentence or probation period
as a gauge of the reasonableness of the delay in entry of judgment after a PJC. See,
e.g., People v Kennedy, 25 N.W. 318, 320 (Mich. 1885) (holding that the judgment
could not be delayed longer than 90 days when the longest sentence that could be
imposed was 90 days); Jeffries v. Mun. Court of City of Tulsa, 536 P.2d 1313, 1317
(Okla. Crim. App. 1975) (superseded by statute on other grounds) (holding that
delaying entry of judgment beyond the maximum period which may have been
14
STATE V. MCDONALD
RIGGS, J., dissenting
accessed as a penalty for the violation divested the court of jurisdiction);
Commonwealth ex rel. Wilhelm v Morgan, 123 A 337, 400 (Pa. Super. 1924) (holding
that sentence can only be suspended for a reasonable time not to extend beyond the
maximum term of imprisonment). While our courts have not employed such a
comparison, I do not read our precedent to preclude it either. And here, the maximum
allowable sentence for this class A1 misdemeanor is 150 days. Entry of judgment was
delayed for 7 years – over 17 times the maximum sentence for this misdemeanor.
4. The Delay Prejudiced the Defendant
Finally, in this case, the delay of seven years prejudiced Mr. McDonald. In the
intervening years between when Mr. McDonald pled guilty and the trial court entered
judgment, the State destroyed all its evidence in the case. After the State made a
motion for entry of judgment in 2020, Mr. McDonald made a discovery motion, and
the State notified him that all evidence surrounding the 2011 incident had been
destroyed.
Without discovery from the State, Mr. McDonald was unable to present
mitigating factors, if any, that may have impacted the length of his sentence entered
in 2022. For example, Mr. McDonald did not have access to the accident
reconstruction report and a speed reconstruction compiled by an expert that were the
basis of the State’s proffer of guilt during the plea hearing. Additionally, Mr.
McDonald did not have information on the speed the other driver was traveling,
medical or vision issues of the victim that would have impacted his ability to respond
15
STATE V. MCDONALD
RIGGS, J., dissenting
to a car that was one or two feet into his lane, or the existence of any impairing
substances in the victim’s system at the time of the incident. Significantly, during
the plea agreement in 2014, the trial court told Mr. McDonald that he would “have
the right during a sentencing hearing to prove to the Court the existence of any
mitigating factors that may apply to your case[.]” This Court has held that a
defendant was prejudiced when the State failed to turn over evidence that is material
to guilt or punishment. State v. Williams, 190 N.C. App. 301, 311, 660 S.E.2d 189,
195 (2008), aff'd, 362 N.C. 628, 669 S.E.2d 290 (2008) (emphasis added).
Ultimately, the trial court in 2022 sentenced Mr. McDonald to the maximum
sentence, 150 days, suspended to 12 months of probation and loss of license. I would
find that Defendant was prejudiced by the State’s failure to turn over evidence that
he might have used to argue for a sentence less than the maximum.
II. Conclusion
For the reasons explained above, I would hold that the State did not meet the
burden of proving the trial court had jurisdiction to enter the order, the delay in entry
of judgment in this case was unreasonable, and the trial court was divested of
jurisdiction to enter judgment. I respectfully dissent.
16