State v. Killette, 2022-NCSC-80, ___ N.C. ___ (Jun. 17, 2022)

In this Johnson County case, defendant was charged with drug related offenses after two searches of his home turned up items and ingredients used in the manufacture of methamphetamine. The first search occurred in September of 2014, and the second occurred in June of 2015. After charges were filed resulting from both searches, defendant filed two motions to suppress the evidence obtained from these searches in March of 2017. Two separate orders were entered denying both of defendant’s motions to suppress, in May and June of 2017.

After the denial of defendant’s motions to suppress, defendant reached a plea agreement and pled guilty on July 6, 2017, to two counts of manufacturing methamphetamine along with dismissal of the remaining charges. Defendant then filed a handwritten appeal on July 10, 2017, challenging the denial of his motion to suppress the 2014 search. Defendant also filed a writ of certiorari because he had not notified the State of his intent to appeal prior to the entry of his plea. The Court of Appeals dismissed defendant’s appeal and denied his petition for a writ of certiorari in October of 2018. The court held that defendant had forfeited his right to appeal by failing to provide notice prior to entering his guilty plea, and Rule 21 of the North Carolina Rules of Appellate Procedure barred issuance of the writ. Defendant appealed the decision to the Supreme Court.

The Supreme Court remanded the case for reconsideration in light of two recent decisions, State v. Ledbetter, 371 N.C. 192 (2018), and State v. Stubbs, 368 N.C. 40 (2015). These decisions indicated that the Court of Appeals holds discretion to grant or deny a petition for writ of certiorari that is not limited by Rule 21. The Supreme Court instructed the Court of Appeals to exercise that discretion when considering defendant’s petition. However, in 2019 the Court of Appeals denied defendant’s petition for a second time, citing Rule 21 and a line of decisions indicating that defendant’s failure to provide notice of appeal barred granting his petition. Defendant again appealed the decision.

In the current opinion, the Supreme Court expressly held that the Court of Appeals has complete discretion to grant or deny defendant’s petition, regardless of Rule 21. Additionally, the Court explicitly overruled any precedent that held or implied that the Court of Appeals was constrained by Rule 21 when considering whether to grant a writ of certiorari under similar circumstances. The case was remanded a third time for consideration by the Court of Appeals.

Justice Berger did not participate in the consideration or decision for this case.