Smith's Criminal Case Compendium
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State v. Bailey, 286 N.C. App. 701 (Dec. 6, 2022)
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.