In a case involving charges of possession of a firearm by a felon and possession of a weapon on educational property, the defendant failed to preserve for appellate review his argument that the trial court erred by denying his pretrial suppression motions related to the lawfulness of a traffic stop and a subsequent weapons frisk.  At trial, the defendant objected to an officer’s testimony regarding the officer’s discovery of a handgun in the defendant’s pocket, but the defendant did not move to strike the testimony.  Citing precedent with regard to situations where the inadmissibility of testimony is not indicated by a question but becomes apparent by some feature of a witness’s answer, the court stated that the “[d]efendant was obligated to move to strike [the officer’s] answer after objecting for the record and before the jury to preserve his objection.”  Because he did not move to strike at trial or specifically argue plain error on appeal, the defendant failed to preserve his arguments concerning the admission of evidence about the handgun.

The court went on to reject the defendant’s argument that his trial counsel was ineffective during the pretrial hearing on the suppression motion related to the weapons frisk.  During that hearing, defense counsel expressed the view that the officer had the reasonable and articulable suspicion necessary to conduct a frisk upon seeing a bulge in the defendant’s pocket while arguing that the officer unlawfully had decided to conduct the frisk prior to seeing the bulge.  Noting that the defendant could not show prejudice and that the trial court did not rely on defense counsel’s statement when ruling on the motion, the court overruled the defendant’s IAC argument.

(1) At his trial for habitual DWI, the defendant took the stand, denied driving, and admitted his prior DWI convictions in explaining why he did not drive on the night in question and why, based on his past interactions with law enforcement, he did not speak to the arresting officers. On cross-examination, the State asked the defendant about the offense, date, and place of each of those convictions. The defendant asked the trial judge to instruct the jury pursuant to North Carolina Pattern Jury Instruction 105.40, which instructs that the jury should not consider a defendant’s prior convictions as evidence of the defendant’s guilt in the current case. The trial judge refused to give the instruction. Relying on State v. Jackson, 161 N.C. App. 118 (2003), the Court of Appeals found no error. Per that opinion, a defendant is not entitled to a special instruction instructing the jury to consider a defendant’s testimony about prior convictions for purposes of the defendant’s credibility only, where the defendant initially offers the testimony on direct examination. The Court held that the State’s cross-examination of the defendant in this case was limited and did not constitute sufficient impeachment to require the instruction. The Court rejected the defendant’s argument that it should reconsider Jackson, finding that it was bound by the prior decision. (2) Before his first trial on the habitual DWI charge, the defendant moved for and the trial judge conducted an in camera review of the arresting officers’ personnel records. The trial judge denied release, finding no favorable and material evidence, and the Court of Appeals upheld the denial in an unpublished opinion. On appeal in this case, the defendant asked the Court of Appeals to review the records, which the trial judge had placed under seal at the first trial. The Court of Appeals held that the defendant failed to preserve the issue for appeal, having failed to make any motion asking the trial judge to review the records before his second trial. The Court stated that a mistrial has the legal effect of no trial. Therefore, the defendant could not rely on a motion made at his first trial to preserve issues for appeal at his later trial.

The defendant was charged with solicitation to commit first-degree murder after he asked someone he met through a mutual acquaintance (“Edwards”) to murder his wife for money. After repeated requests from the defendant over the next few days, Edwards contacted law enforcement and assisted their investigation by wearing recording equipment at a subsequent meeting with the defendant to discuss details of the murder. The defendant was indicted for solicitation to commit first-degree murder, and after being convicted at a jury trial he was sentenced for a Class C offense. On appeal, the defendant argued that he was sentenced incorrectly because the jury was only instructed on solicitation to commit “murder.” The jury was not asked to make any special findings regarding the level of malice it found regarding the crime solicited. Therefore, the defendant argued that he should have been convicted of soliciting only the lowest possible level of any form that offense (second-degree murder punished as Class B2 offense). Pursuant to G.S. 14-2.6(a), a solicitation to commit a B2 offense would be punished as a Class D felony, rather than as Class C felony for soliciting a Class A or B1 offense. The appellate court disagreed, noting that “Defendant creatively sidesteps the fact that he was not charged with murder, but with solicitation to commit murder. The jury was not required to find any of the elements of murder. As previously explained, one may be guilty of solicitation regardless of whether the solicited crime—murder, in this case—actually occurs. […] The crime was in the asking.” Rather than alleging a sentencing error, the defendant’s appeal was really an argument against the sufficiency of the jury instructions. However, since the defendant did not object and raise that issue at trial, nor did he allege plain error on appeal, the issue was not properly before the court. “In that Defendant’s entire appeal was predicated on an unpreserved issue and he failed to request plain error review, his conviction and subsequent sentence shall remain undisturbed.”

In this drug case, the defendant failed to preserve her argument that the trial court erred by failing to sua sponte conduct a hearing to confirm that the defendant’s in-custody statements to law enforcement were knowing and voluntary. The defendant did not move to suppress the statements before or at any time during trial. When the State first asked about the statements at trial, defense counsel stated “objection.” The trial court overruled the objection, and defense counsel said nothing more. When no exception to making a motion to suppress before trial applies, a defendant’s failure to make a pretrial motion to suppress waives any right to contest the admissibility of evidence at trial on constitutional grounds. Thus, the trial court properly overruled the defendant’s objection as procedurally barred.

Because the defendant failed to present his constitutional double jeopardy argument before the trial court, it was not properly preserved for appellate review. The defendant was found guilty of, among other things, five counts of possession of a gun on educational property. On appeal the defendant argued that the trial court erred by entering judgment on five counts of possession of a gun on educational property, asserting that double jeopardy bars entry of judgment on more than one count when there is simultaneous possession of guns. The court held that the issue was not preserved and declined the defendant’s request that it invoke Rule 2 of the Rules of Appellate Procedure to consider the issue.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 806 S.E.2d 682 (2017), the court modified and affirmed the decision below, holding that the defendant waived her Eighth Amendment sentencing argument by failing to raise it before the sentencing court and that although her non-constitutional sentencing issues were preserved for review despite her failure to object at trial, they are without merit. The defendant was convicted of 3 counts of drug trafficking; she was sentenced to a minimum of 70 months in prison on each count, with the sentences for two counts to be served concurrently and the third sentence to be served consecutively to the first two. The defendant appealed asserting, in relevant part, that the sentencing judge improperly overruled another judge’s safekeeping order; that the trial court abused his discretion in imposing consecutive sentences on an elderly first offender for a single drug transaction; and that the sentences are grossly disproportionate in violation of the Eighth Amendment. The Court of Appeals found no error, concluding that the defendant failed to preserve her arguments as required by Appellate Rule 10(a)(1). The Supreme Court allowed discretionary review.

          The Supreme Court noted that, as a general matter, Rule 10 requires parties to take action to preserve an issue for appeal. It further noted its decision in State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991), inspired a series of decisions by the Court of Appeals holding that Rule 10(a)(1) does not apply to sentencing errors. The court determined that “[t]o derive such a categorical rule from Canady, however, one must ignore the opinion’s rationale.” It explained that in Canady, it determined that the purpose of the rule is to require a party to call an issue to the trial court’s attention before the party can assign error to the matter on appeal. Canady determined that the rule discourages gamesmanship; a party cannot simply allow something to happen at trial as a matter of trial strategy and then assign error to the matter if the strategy does not pan out. Rather than create a categorical rule, the court explained that in Canady it found that the danger of gamesmanship was not present and held that no contemporaneous objection was required to preserve the issue for appellate review in that case. Here, defense counsel asked that all three sentences be consolidated, noting the defendant’s advanced age, poor health, and clean criminal record. The judge however consolidated only 2 of the 3 sentences. Here, the sentencing court knew that the defendant sought the minimum possible sentence, and the defendant was not required to voice to contemporaneous objection to preserve this issue for appellate review. The court further found that the defendant’s sentencing issues were preserved by statute. Specifically, G.S. 15A-1446(d) provides that certain issues are appealable without preservation, including an argument that the sentence imposed was unauthorized at the time, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.

          Having found that the Court of Appeals erred by declining to address the defendant’s sentencing arguments, the court went on to find them to be meritless. With respect to the safekeeping order, neither that order nor the judge’s oral remarks when it was imposed indicate that the judge intended to retain jurisdiction over the matter or to delay sentencing; in fact his oral remarks and written order indicate awareness that the defendant might be sentenced by some other judge. The court also rejected the defendant’s argument that the trial court abused its discretion in imposing her sentence and her suggestion that the trial court must have been influenced by the defendant’s decision to take her case to trial. The court found that this conclusory accusation lacked any support in the record.

         Having found that the defendant’s non-constitutional sentencing issues were preserved without contemporaneous objection consistent with Canaday and G.S. 15A-1446(d), the court found that the defendant’s constitutional argument was not so preserved. Rule 14(b)(2) of the Rules of Appellate Procedure requires that a constitutional issue must be timely raised in the trial court in order to be preserved for appellate review. Because the defendant failed to argue to the sentencing court that the sentence imposed violated the Eighth Amendment, she may not raise that argument on appeal.

In this drug case the defendant was not entitled to appellate review of whether the trial court erroneously admitted hearsay evidence. The defendant failed to demonstrate that any “judicial action” by the trial court amounted to error where he not only failed to object to admission of the statement, but also expressly consented to its admission. Even if error occurred, G.S. 15A-1443(c) (a defendant is not prejudiced by an error resulting from his own conduct) precludes a finding of prejudice. Here, by asking about the statement during cross-examination of the State’s witness, defense counsel opened the door to the State’s subsequent questions concerning the statement and its introduction.

The defendant failed to properly preserve the argument that there was a fatal variance between a drug trafficking indictment and the evidence at trial, where the issue was raised for the first time on appeal. The defendant never alleged a fatal variance when he moved to dismiss the charge. Rather, his motion was based on insufficiency of the evidence.

(1) By failing to raise the argument at trial, the defendant failed to preserve for appellate review the argument that the trial court erred by failing to require the State to file a written pretrial motion to suppress or motion in limine to exclude the testimony of a defense witness.

(2) By failing to raise a confrontation clause issue at trial, the defendant failed to preserve the issue for appeal.

The defendant failed to preserve for appellate review his claim that the trial court erred by requiring him to enroll in satellite-based monitoring (SBM). The defendant asserted that the State failed to meet its burden of proving that imposing SBM is reasonable under the fourth amendment. Because the defendant raised no fourth amendment objection at the SBM hearing and the issue was not implicitly addressed or ruled upon by the trial court, it was not preserved for appellate review. In its discretion, the court declined to grant review under Rule 2, reasoning that the law was well-established at the time of the hearing and the State was not on notice of the need to address Grady issues due to the defendant’s failure to raise the constitutional issue.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 789 S.E.2d 679 (2016), the court reversed because of errors in the jury instructions on self-defense. At trial, the parties agreed to the delivery of N.C.P.I.–Crim. 206.10, the pattern instruction on first-degree murder and self-defense. That instruction provides, in relevant part: “Furthermore, the defendant has no duty to retreat in a place where the defendant has a lawful right to be.” Additionally, N.C.P.I.–Crim. 308.10, which is incorporated by reference in footnote 7 of N.C.P.I.–Crim. 206.10 and entitled “Self-Defense, Retreat,” states that “[i]f the defendant was not the aggressor and the defendant was . . . [at a place the defendant had a lawful right to be], the defendant could stand the defendant’s ground and repel force with force.” Although the trial court agreed to instruct the jury on self-defense according to N.C.P.I.–Crim. 206.10, it ultimately omitted the “no duty to retreat” language of N.C.P.I.–Crim. 206.10 from its actual instructions without prior notice to the parties and did not give any part of the “stand-your-ground” instruction. Defense counsel did not object to the instruction as given. The jury convicted defendant of second-degree murder and the defendant appealed. The Court of Appeals affirmed the conviction, reasoning that the law limits a defendant’s right to stand his ground to any place he or she has the lawful right to be, which did not include the public street where the incident occurred. The Supreme Court allowed defendant’s petition for discretionary review and reversed.

(1) The court held that when a trial court agrees to give a requested pattern instruction, an erroneous deviation from that instruction is preserved for appellate review without further request or objection. Here, because the trial court agreed to instruct the jury in accordance with N.C.P.I.–Crim. 206.10, its omission of the required stand-your-ground provision substantively deviated from the agreed-upon pattern jury instruction, thus preserving this issue for appellate review.

(2) By omitting the relevant stand-your-ground provision, the trial court’s jury instructions were an inaccurate and misleading statement of the law. The court concluded, in part, that “[c]ontrary to the opinion below, the phrase “any place he or she has the lawful right to be” is not limited to one’s home, motor vehicle, or workplace, but includes any place the citizenry has a general right to be under the circumstances.” Here, the defendant offered ample evidence that he acted in self-defense while standing in a public street, where he had a right to be when he shot the victim. Because the defendant showed a reasonable possibility that, had the trial court given the required stand-your-ground instruction, a different result would have been reached at trial, the court reversed the Court of Appeals, finding that the defendant was entitled to a new trial.

On an appeal from an order requiring the defendant to enroll in lifetime SBM, the court held--as conceded by the State--that the trial court erred by imposing lifetime SBM without conducting the required Grady hearing to determine whether monitoring would amount to a reasonable search under the Fourth Amendment. The court vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application.

In this possession of a firearm by a felon case, the court reversed in part the decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 169 (2017), for the reasons stated in the dissent. A divided panel of the court of appeals had held that the trial court erred by admitting 404(b) evidence. The current charges were filed after officers found an AK-47 rifle in the back seat of a vehicle and a Highpoint .380 pistol underneath the vehicle, next to the rear tire on the passenger side. At trial, the State offered, and the trial court admitted, evidence of a prior incident in which officers found a Glock 22 pistol in a different vehicle occupied by the defendant. The evidence was admitted to show the defendant’s knowledge and opportunity to commit the crime charged. The defendant offered evidence tending to show that he had no knowledge of the rifle or pistol recovered from the vehicle. The court of appeals held that the trial court erred by admitting the evidence as circumstantial proof of the defendant’s knowledge. It reasoned, in part, that “[a]bsent an immediate character inference, the fact that defendant, one year prior, was found to be in possession of a different firearm, in a different car, at a different location, during a different type of investigation, does not tend to establish that he was aware of the rifle and pistol in this case.” The court of appeals found that the relevance of this evidence was based on an improper character inference. It further held that the trial court abused its discretion by admitting the evidence as circumstantial proof of the defendant’s opportunity to commit the crime charged. The court of appeals noted, in part, that the State offered no explanation at trial or on appeal of the connection between the prior incident, opportunity, and possession. The court of appeals went on to hold that the trial court’s error in admitting the evidence for no proper purpose was prejudicial and warranted a new trial. The dissenting judge believed that because the defendant did not properly preserve his objection, the issue should be reviewed under the plain error standard, and that no plain error occurred. 

A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.

Because the defendant did not present any constitutional argument before the trial court, he waived appellate review of whether his Fourth Amendment rights were violated when the trial court allowed the State to retrieve location information from his cell phone without a search warrant. The court concluded: “Defendant’s only argument before the trial court was that law enforcement did not have sufficient evidence to support issuance of the pen register order. The trial court ruled on this issue only, and this is the only argument we may consider on appeal.”

(1) By failing to object at trial to the trial court’s handling of a juror’s inquiry about whether jurors may question witnesses, the defendant failed to preserve the issue for appellate review.

(2) The court declined to invoke its discretionary authority under Appellate Rule 2 to suspend the issue-preservation requirements of Appellate Rule 10 and review the issue on the merits, concluding that the defendant had failed to demonstrate that the case was a rare one meriting suspension of the rules.

The defendant waived his right to direct appeal review of any fourth amendment challenge to the trial court’s order requiring him to enroll in a satellite-based monitoring for life, by failing to raise the constitutional challenge at trial. The court declined to invoke Rule 2 to issue a writ of certiorari to review the defendant’s unpreserved argument.

The court declined to consider the defendant’s argument that his motion to suppress a warrantless blood draw should have been granted because his Fourth Amendment rights were violated where the only ground the defendant asserted with respect to that motion at trial was a violation of G.S. 20-16.2. 

In this multi-count assault and attempted murder case, because the defendant failed to challenge the sufficiency of the evidence as to the intent elements of the challenged convictions in the trial court, the issue was not preserved for appellate review. The court concluded: “Because defense counsel argued before the trial court the sufficiency of the evidence only as to specific elements of the charges and did not refer to a general challenge regarding the sufficiency of the evidence to support each element of each charge, we hold Defendant failed to preserve the issues of the sufficiency of the evidence as to the other elements of the charged offenses on appeal.”

The defendant failed to preserve for appellate review a challenge to the admission of evidence at trial concerning the defendant’s previous incarceration. Although the defendant objected to the admission of the evidence during a hearing outside of the jury’s presence, he did not subsequently object when the evidence was actually introduced at trial. Thus the defendant failed to preserve for appellate review the trial court’s decision to admit this evidence.

In this child sexual assault case, the defendant failed to preserve the argument that the trial court committed prejudicial error by allowing the State’s expert witness to testify that she diagnosed the child with PTSD, thus improperly vouching for the witness. At trial, the defendant did not object to the expert’s testimony on the basis that it impermissibly vouched for the child’s credibility or the veracity of the sexual abuse allegations; rather, his objection was grounded on the fact that a licensed clinical social worker is not sufficiently qualified to give an opinion or diagnosis regarding PTSD.

In a drug case in which the court of appeals had held that a strip search of the defendant did not violate the fourth amendment, State v. Collins, ___ N.C. App. ___, 782 S.E.2d 350 (2016), the Supreme Court affirmed solely on the ground that because the defendant failed to raise in the trial court the timing of the officer’s observation of powder on the floor, he failed to preserve that issue on appeal. The defendant had argued in the court of appeals that because the officer did not see the powder until after the search, the trial court was barred from considering the officer’s observation in ruling on the defendant’s suppression motion. The court of appeals determined that because the defendant failed to raise the timing of the officer’s observation at the hearing on his motion to suppress, the issue was not properly before the appellate court.

Where the State’s witness testified regarding statements made to the victim by the victim’s brother and the defendant failed to move to strike the testimony, the defendant failed to preserve the issue for appellate review.

The court determined that it need not address the substance of the defendants’ challenge to the trial court’s order denying their suppression motions where the argument asserted was not advanced at the suppression hearing in the trial court.

In this Wake County case, defendant appealed his convictions for two counts of first-degree murder and four counts of discharging a weapon into an occupied vehicle, arguing error in (1) allowing certain text messages into evidence, and (2) denying his challenge to the jury pool. The Court of Appeals found no error. 

In May of 2022, trial began on defendant’s charges; during jury selection, defendant challenged the makeup of the jury pool, arguing members of defendant’s race (Black) were underrepresented. Defendant offered statistical evidence to support his argument, but the trial court denied defendant’s challenge. During the trial, the State offered text messages between an accomplice of defendant and a third party, attempting to show motivation for the robbery that eventually led to the murders. Defendant objected to the messages, and the trial court only allowed admission of the accomplice’s text messages, not those from the third party. Defendant was subsequently convicted and appealed.  

Before reaching the merits of defendant’s arguments in (1), the Court of Appeals considered the basis for its review. At trial, defendant objected to the text messages “because they were hearsay, were not illustrative, and lacked a proper foundation.” Slip Op. at 6. However, on appeal, defendant did not raise these three issues, but instead argued the text messages were irrelevant, unfairly prejudicial, and violated the Confrontation Clause and defendant’s right to a fair trial. Because defendant attempted to change his arguments on appeal, he was limited to the plain-error standard; however, the court noted that defendant “failed to ‘specifically and distinctly . . . argue plain error.’” Id., quoting State v. Frye, 341 N.C. 470, 496 (1995). As a result, defendant was limited to the grounds under which he originally objected to the evidence at trial. But as noted above, defendant did not argue the three issues from trial on appeal. This meant that defendant had no valid arguments on appeal, and the court dismissed issue (1). 

Moving to (2), the court explained that under applicable precedent on the fair-cross-section requirement, statistical evidence about the composition of the jury pool alone is not enough to prove systematic exclusion of that group. Here defendant acknowledged that he did not admit sufficient evidence of all three factors under Duren v. Missouri, 439 U.S. 357 (1979), but attempted to reference other cases and the pervasive problem of disparity in jury pools across North Carolina. The court was not swayed by this argument, concluding defendant “only offers statistical evidence as proof of systematic exclusion, and without more, he fails to establish a fair-cross-section claim under Duren.” Slip Op. at 8-9. 

In this Cumberland County case, defendant appealed his convictions for first degree murder and robbery based upon (1) the admission of expert testimony regarding cell phone locations and (2) a jury instruction on defendant’s flight from the scene. The Court of Appeals found no error by the trial court and affirmed defendant’s convictions.

Defendant and an accomplice were driven to the house of a woman known to sell marijuana in Fayetteville. After defendant and his accomplice were dropped off near the home, shots were fired, and witnesses saw men matching their descriptions leaving the home. In addition to the testimony of eyewitnesses, the State offered the testimony of an expert in cell phone analytics from the Fayetteville Police Department, and a GeoTime report plotting the location of cellphones associated with the victim and the driver of the vehicle that brought defendant to the scene.

The Court of Appeals first reviewed defendant’s objection to the cell phone expert, and noted that defendant did not object to the testimony in the presence of the jury. Counsel did file a motion in limine and objected to the expert after voir dire, but did not renew the objection when the testimony was offered in front of the jury later in the trial. The trial court noted defendant’s objection in front of the jury, but only after testimony and cross-examination had concluded. Applying State v. Ray, 364 N.C. 272 (2010), the court determined that defendant did not properly preserve the objection. Slip Op at ¶20. As a result, the court applied a plain error standard of review, and found sufficient evidence to support defendant's convictions.

This Harnett County case involved a husband and wife who indemnified a bond on behalf of an employee. The employee was roommates with the couple’s son. When the employee disappeared, the family members forcibly apprehended him, causing a traffic accident and apparently discharging a gun. The three defendants were charged with various offenses, including acting as unlicensed bail bondsmen or runners. (1) Two of the defendants failed to preserve their argument that the evidence was insufficient to support conviction for acting as an unlicensed bail bondsman or runner. Trial counsel for the defendants moved to dismiss some of the offenses but failed to make any motion as to all charges generally, or as to the charge of acting as an unlicensed bondsman specifically. While a motion to dismiss a charge preserves all sufficiency issues pursuant to State v. Golder, 374 N.C. 238 (2020) (discussed here), where there is no motion to dismiss as to a specific charge, appellate review of the sufficiency of evidence for that offense is waived under Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure. For the same reason, one of the defendant’s arguments regarding an alleged fatal variance between the indictment and the jury instructions was waived on appeal.

[A]ny fatal variance argument is, essentially, an argument regarding the sufficiency of the State’s evidence. . .[A]s [the defendant’s] argument fundamentally presents an issue ‘related to the sufficiency of the evidence’ that he did not ‘mov[e] to dismiss at the proper time’, he has waived appellate review of this issue. Slip op. at 17.

The court declined to suspend the Rules of Appellate Procedure under Rule 2 to consider the merits of the arguments.

(2) The trial court admitted into evidence a recording of a 911 call where the caller stated that a defendant hit the victim’s truck with his vehicle “on purpose.” On appeal, the defendant argued this evidence amounted to improper lay opinion testimony. Trial counsel objected to this evidence at the time on hearsay and confrontation grounds but did not argue improper lay opinion. This argument was therefore waived on appeal. This defendant also failed to “specifically and distinctly” raise this argument for plain error review on appeal, and the court declined to review it. The court observed that purported violations of Rule 701 are reviewed for abuse of discretion and that plain error has not previously been applied to discretionary decisions of the trial court.

(3) Several other issues turned on whether the defendants could be considered sureties or accommodation bondsmen. Two of the defendants claimed error in the trial court’s refusal to instruct on a defense of lawful action by a surety; one defendant claimed a fatal defect in the indictment for failure to charge a crime; and one defendant claimed that a motion to dismiss for insufficiency as to a kidnapping conviction should have been granted based on the lawful authority of a surety to confine or restrain the subject of the bond. Article 71 of Chapter 58 of the General Statutes of North Carolina regulates the bail bond industry. The husband and wife argued that they met the definition of a surety in G.S. 58-71-1(10) as ones liable on the bail bond in the event of bail forfeiture. As a result, they argued that the common law right of sureties to arrest a principal on the bond who fail to appear justified their actions. The court rejected this argument, finding that the definition of surety in Chapter 15A of the General Statutes controls when the two definitions conflict, pursuant to G.S. 58-71-195 (so stating). Under that definition, the professional bondsman who posted the bond was the surety, but the defendants were not. While the husband-and-wife-defendants were liable to the professional bondsman if the bond were to be forfeited as indemnitors, they would not be liable to the State. “Simply put, agreeing to indemnify a bond does not a surety make.” Gettleman Slip op. at 26. The court also rejected the alternative argument by one of the defendants that she qualified as an accommodation bondman for the same reason—the defendant did not qualify as a surety on the bond. “We conclude that Defendants did not act lawfully, either as sureties or as accommodation bondsmen. Accordingly, we overrule Defendants’ issues brought on this basis.” Id. at 27. The unanimous court therefore affirmed all of the convictions.

(1) In this case where the defendant pleaded guilty to felony speeding to elude arrest pursuant to a plea arrangement, he had no statutory right to appeal. 

(2) However, the court considered the defendant’s petition for writ of certiorari which argued that he did not receive notice and an opportunity to be heard on the amount of attorney’s fees and costs. The court noted that a criminal defendant may file a petition for a writ of certiorari to appeal a civil judgment for attorney’s fees and costs. Here, after the defendant pleaded guilty to felony speeding to elude arrest he was sentenced and the trial court ordered him to pay court costs in the amount of $1,572.50. Before entering monetary judgments against indigent defendants for fees imposed for court appointed counsel, the trial court should ask defendants personally whether they wish to be heard on the issue. Absent a colloquy directly with the defendant, 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, and chose not to be heard. Here, nothing in the record indicated that the defendant understood he had a right to be heard on the issue, and the trial court did not inform him of that right. The court thus vacated the civil judgment for attorney’s fees and remanded to the trial court.

A drug trafficking defendant who pled guilty and was sentenced pursuant to a plea agreement had no right to appeal the sentence, which was greater than that allowed by the applicable statute at the time. G.S. 15A-1444 allows for appeal after a guilty plea for terms that are unauthorized under provisions of Chapter 15A; the drug trafficking defendant here was sentenced under Chapter 90. However, the court went on to find that the defendant’s plea was invalid.

In this Wake County case, the Supreme Court affirmed the Court of Appeals decision denying defendant’s petition for writ of certiorari, and dismissed as improvidently allowed issues related to defendant’s petition for discretionary review and the denial of his petition for writ of mandamus.  

This matter has a complicated procedural history as detailed on pages 4-10 of the slip opinion. Defendant was originally charged with driving while impaired and driving without an operator’s license in April of 2015. Defendant failed to appear at his February 2016 hearing date; an order for arrest was issued and the State dismissed defendant’s charges with leave under G.S. § 15A-932(a)(2). This meant defendant could not apply for or receive a driver’s license from the DMV. Defendant was arrested in July of 2018, and given a new hearing date in November of 2018, but he again failed to appear. In December of 2018, defendant was arrested a second time, and given another new hearing date that same month. However, at the December 2018 hearing, the assistant DA declined reinstate the 2015 charges, leading to defendant filing several motions and petitions to force the district attorney’s office to reinstate his charges and bring them to a hearing. After defendant’s motions were denied by the district court, and his writ for certiorari was denied by the superior court and the Court of Appeals, the matter reached the Supreme Court.  

The court first established the broad discretion of district attorneys, as “[s]ettled principles of statutory construction constrain this Court to hold that the use of the word ‘may’ in N.C.G.S. § 15A-932(d) grants exclusive and discretionary power to the state’s district attorneys to reinstate criminal charges once those charges have been dismissed with leave . . . .” Slip Op. at 13. Due to this broad authority, the court held that district attorneys could not be compelled to reinstate charges. The court next turned to the authority of the trial court, explaining that “despite a trial court’s wide and entrenched authority to govern proceedings before it as the trial court manages various and sundry matters,” no precedent supported permitting the trial court to direct the district attorney in this discretionary area. Id. at 16. Because the district attorney held discretionary authority to reinstate the charges, and the trial court could not interfere with the constitutional and statutory authority of the district attorney, the court affirmed the denial of defendant’s motions for reinstatement and petition for writ of certiorari. 

The court also considered defendant’s various petitions for writ of mandamus, noting they were properly denied under the applicable standard because “[defendant] does not have a right to compel the activation of his charges which have been dismissed with leave or to require the exercise of discretionary authority to fit his demand for prosecutorial action regarding his charges.” Id. at 22.

(1) In this case where the defendant pleaded guilty to felony speeding to elude arrest pursuant to a plea arrangement, he had no statutory right to appeal. 

(2) However, the court considered the defendant’s petition for writ of certiorari which argued that he did not receive notice and an opportunity to be heard on the amount of attorney’s fees and costs. The court noted that a criminal defendant may file a petition for a writ of certiorari to appeal a civil judgment for attorney’s fees and costs. Here, after the defendant pleaded guilty to felony speeding to elude arrest he was sentenced and the trial court ordered him to pay court costs in the amount of $1,572.50. Before entering monetary judgments against indigent defendants for fees imposed for court appointed counsel, the trial court should ask defendants personally whether they wish to be heard on the issue. Absent a colloquy directly with the defendant, 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, and chose not to be heard. Here, nothing in the record indicated that the defendant understood he had a right to be heard on the issue, and the trial court did not inform him of that right. The court thus vacated the civil judgment for attorney’s fees and remanded to the trial court.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 794 S.E.2d 551 (2016) (per curiam), the court reversed, holding that the absence of a procedural rule limits neither the Court of Appeals’ jurisdiction nor its discretionary authority to issue writs of certiorari. After the defendant was charged with DWI, she filed a motion to dismiss, arguing that the State violated certain statutory procedures and State v. Knoll. The trial court denied the motion and the defendant pled guilty, retaining the right to appeal the denial of the motion. The defendant gave notice of appeal and petitioned the Court of Appeals for review by writ of certiorari. The Court of Appeals dismissed the appeal and denied the petition, holding that the defendant did not have a statutory right to appeal from the trial court’s denial of her motion to dismiss prior to her guilty plea and that the petition did not assert grounds included in or permitted by Rule 21. The Supreme Court then remanded to the Court of Appeals for reconsideration in light of State v. Stubbs, 368 N.C. 40 (2015), and State v. Thomsen, 369 N.C. 22 (2016). Upon reconsideration, the Court of Appeals again denied the defendant’s petition for writ of certiorari and dismissed her appeal. The Court of Appeals determined in part that although the statute provides jurisdiction, it was without a procedural process under either Rule 1 or 21 to issue a discretionary writ other than by invoking Rule 2, and the Court of Appeals declined to invoke that rule. The court determined that the Court of Appeals correctly found that it had jurisdiction to issue the writ. However, it mistakenly concluded that the absence of a specific procedural process in the Rules of Appellate Procedure left the court without any authority to invoke that jurisdiction. The Court of Appeals had held that because the defendant’s petition did not assert any of the procedural grounds set forth in Rule 21, it was without a procedural process to issue the writ other than by invoking Rule 2. The court determined that regardless of whether Rule 21 contemplates review of the defendant’s motion to dismiss, if a valid statute gives the Court of Appeals jurisdiction to issue a writ of certiorari, Rule 21 cannot take that jurisdiction away. The court concluded:

Accordingly, the Court of Appeals had both the jurisdiction and the discretionary authority to issue defendant’s writ of certiorari. Absent specific statutory language limiting the Court of Appeals’ jurisdiction, the court maintains its jurisdiction and discretionary authority to issue the prerogative writs, including certiorari. Rule 21 does not prevent the Court of Appeals from issuing writs of certiorari or have any bearing upon the decision as to whether a writ of certiorari should be issued.

In a case where the defendant argued, and the State conceded, that certain indictments were fatally defective, the court held that the defendant had no right under G.S. 15A-1444 to appeal his conviction, entered upon a plea of guilty. Nor had he asserted any grounds under Appellate Rule 21 for the court to issue a writ of certiorari. However, the court exercised its discretionary authority under Appellate Rule 2 to suspend the requirements of the appellate rules and issue a writ of certiorari, finding that manifest injustice would occur if the convictions were allowed to stand on charges for which the trial court lacked jurisdiction to impose sentence.

The Court of Appeals had subject-matter jurisdiction to review, pursuant to the State’s petition for writ of certiorari, a trial court’s grant of its own motion for appropriate relief (MAR). The defendant pleaded guilty to rape of a child by an adult offender and to sexual offense with a child by an adult offender, both felonies with mandatory minimum sentences of 300 months. Pursuant to a plea arrangement, the trial court consolidated the convictions for judgment and imposed a single active sentence of 300 to 420 months. The trial court then immediately granted its own MAR and vacated the judgment and sentence. It concluded that, as applied to the defendant, the mandatory sentence violated the Eighth Amendment; the court resentenced the defendant to 144 to 233 months. The State petitioned the Court of Appeals for a writ of certiorari to review the trial court’s MAR order. The defendant responded, arguing that under State v. Starkey, 177 N.C. App. 264, the court of appeals lacked subject-matter jurisdiction to review a trial court’s sua sponte grant of a MAR. The Court of Appeals allowed the State’s petition and issued the writ. The Court of Appeals found no Eighth Amendment violation, vacated the defendant’s sentence and the trial court’s order granting appropriate relief, and remanded the case for a new sentencing hearing. See State v. Thomsen, ___ N.C. App. ___, ___, 776 S.E.2d 41, 48 (2015). Before the supreme court, the parties disagreed on whether the trial court’s sua sponte motion was pursuant to G.S. 15A-1415(b) (defendant’s MAR) or G.S. 15A-1420(d) (trial court’s sua sponte MAR). The court found it unnecessary to resolve this dispute, holding first that if the MAR was made under G.S. 15A-1415, State v. Stubbs, 368 N.C. 40, 42-43, authorized review by way of certiorari. Alternatively, if the MAR was made pursuant to G.S. 1420(d), G.S. 7A-32(c) gives the Court of Appeals jurisdiction to review a lower court judgment by writ of certiorari, unless a more specific statute restricts jurisdiction. Here, no such specific statute exists. It went on to hold that to the extent Starkey was inconsistent with this holding it was overruled.

In this Person County case, defendant appealed the post-conviction order revoking his probation for a new criminal offense, requesting a review of the record similar to review of criminal convictions under Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted certiorari to review defendant’s appeal, and affirmed the order revoking defendant’s probation.

Defendant’s counsel submitted a brief along with defendant’s petition for writ of certiorari seeking “Anders-type review because counsel had examined the record and applicable law and was ‘unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.’” Slip Op. at 2. The majority held that the lack of briefing on appeal constrained the court’s ability to review arguments against the revocation under the rules of appellate procedure, “as any argument not advanced in an appellant’s brief is abandoned under Rule 28 . . . [and] based on the reasoning of our Supreme Court’s opinion in State v. Ricks, 378 N.C. 737 [] (2021), we must conclude that it would be an abuse of our discretion to invoke Rule 2.” Slip Op. at 3. Because the majority held that the Ricks precedent prevented the Court of Appeals from invoking Rule 2 to suspend Rule 28, the court simply examined the indictments to confirm the trial court had jurisdiction to try defendant, and examined no other arguments before affirming the trial court’s order revoking probation.

Judge Inman concurred in the result only, and wrote separately suggesting that the court had “the jurisdiction and authority to consider the issues raised in [d]efendant’s Anders brief on appeal from an order revoking his probation without invoking Rule 2,” but that after conducting an Anders-style inquiry, the judge found no prejudicial error. Id. at 5.

In this Davidson County case, the defendant pled guilty to a drug offense and received 12 months of supervised probation. His probation officer filed a violation report alleging positive drug screens and other violations. At the violation hearing, the defendant chose to represent himself. The court found a willful violation and agreed to extend probation by six months and to hold the defendant in custody for up to two weeks until he could begin drug treatment at a treatment center. The defendant said “that’s crazy,” accused the court of activating his sentence, and suggested that the court be “f—king honest with [him].” After being warned about his language, he accused his probation officer of “start[ing] this sh— all over again.” The court began contempt proceedings, found the defendant in direct criminal contempt and sentenced him to 30 days. He sought appellate review.

As to the probation modification, the Court of Appeals first found that he had no right to appeal. In criminal cases, appellate rights are provided entirely by statute, and G.S. 15A-1347(a) allows an appeal of a probation violation only when the court activates a sentence or imposes special probation. The trial court did neither in this case.

The defendant therefore sought certiorari review. The lead opinion, relying on State v. Edgerson, 164 N.C. App. 712 (2004), concluded that certiorari review is not available for probation modifications. Two judges concurred separately, each disagreeing with the lead opinion on that point, but the panel was unanimous that even if such authority exists, the defendant’s petition was “wholly frivolous” and so certiorari review should be denied.

As to the contempt finding, the Court agreed to review the matter under its certiorari jurisdiction. After finding the defendant in contempt, the trial court stated, “Enter notice of appeal for his contempt citation,” to which the defendant responded, “Thank you.” Although this was not a proper notice of appeal, the defendant’s intent to appeal was obvious so certiorari review was justified. The court proceeded to uphold the contempt conviction, finding that the defendant’s “words and actions willfully interrupted the proceedings and impaired the respect due the [trial] Court’s authority” in violation of G.S. 5A-11(a).

The court per curiam affirmed the decision below, State v. Hester, 224 N.C. App. 353 (Dec. 18, 2012), which had held, over a dissent, that the defendant’s first asserted issue must be dismissed because although he argued plain error, he failed provide an analysis of the prejudicial impact of the challenged evidence.

The defendant was convicted of impaired driving in Macon County and appealed. The defendant was driving a moped and collided with a car. A trooper responded, investigating and preparing a crash report (and later charging the defendant). At trial, the trooper testified during cross-examination by the defense about his investigation into the accident, recounting his impression of when and how the crash occurred without objection. The defendant complained on appeal that this testimony amounted to improper lay opinion since the trooper did not see the accident occur and was not tendered as an expert. Because no objection was made at trial, the defendant claimed plain error. The State argued that the defendant invited any error, and the Court of Appeals agreed. “Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.” Because this testimony was elicited by the defendant, any appellate review of the issue (including plain error review) was waived. The trial court was therefore unanimously affirmed.

In this drug case the defendant was not entitled to appellate review of whether the trial court erroneously admitted hearsay evidence. The defendant failed to demonstrate that any “judicial action” by the trial court amounted to error where he not only failed to object to admission of the statement, but also expressly consented to its admission. Even if error occurred, G.S. 15A-1443(c) (a defendant is not prejudiced by an error resulting from his own conduct) precludes a finding of prejudice. Here, by asking about the statement during cross-examination of the State’s witness, defense counsel opened the door to the State’s subsequent questions concerning the statement and its introduction.

The trial court did not err by failing to instruct the jury on imperfect self-defense and imperfect defense of others where the defendant did not request that the trial court give any instruction on imperfect self-defense or imperfect defense of others. In fact, when the State indicated that it believed that these defenses were not legally available to the defendant, defense counsel agreed with the State. The defendant cannot show prejudice from invited error.

On discretionary review of a unanimous decision below, 259 N.C. App. 127 (2018), the court reversed the Court of Appeals and held that appellate counsel was not ineffective for failing to cite a particular line of cases because the facts of this case were distinguishable from those in the line of cases the Court of Appeals would have had appellate counsel cite.  The Court of Appeals had held that appellate counsel was ineffective for failing to make the argument under State v. Pakulski, 319 N.C. 562 (1987) that a trial court commits plain error when it instructs a jury on disjunctive theories of a crime, one of which is erroneous, and it cannot be discerned from the record the theory upon which the jury relied.  Noting that its opinion in Pakulski “lacks clarity” with respect to the standard of review applied there, the court explained that Pakulski applied the harmless error rather than plain error standard, as evidenced by subsequent precedent.  Because the defendant in this case did not object to the trial court’s jury instructions, the court explained that Pakulski “would have had little precedential value in the instant case, and appellate counsel’s failure to cite it was not objectively unreasonable.”  The court went on to explain that the arguments made by appellate counsel were appropriate for plain error review as counsel argued that the jury was presented with multiple theories of guilt, one of which was erroneous, and the error had a probable impact on the jury’s verdict.

Justice Ervin, joined by Justice Newby, concurred, agreeing with the court’s interpretation of Pakulski and its determination that appellate counsel was not ineffective, but writing separately to clarify the general matter that a defendant may be convicted of possession of a firearm by a felon under an acting in concert theory.  Noting that neither the North Carolina Supreme Court nor the Court of Appeals has ever directly held that a defendant can be convicted of that offense on the basis of an acting in concert theory, Justice Ervin described the “general availability of the acting in concert doctrine in possession-related cases” and stated that he was not persuaded that the theory is inapplicable to the offense of possession of a firearm by a felon.

Justice Earls, joined by Justice Davis, dissented, expressing the view that the majority opinion’s explanations of Pakulski and appellate counsel’s arguments were inaccurate.  In Justice Earls’ view, Pakulski applied the plain error standard of review and appellate counsel did not meet the obligation to argue to the Court of Appeals that the defendant could not be convicted of possession of a firearm by a felon based on someone else’s possession.