State v. Meadows, 371 N.C. 742, 821 S.E.2d 402 (Dec. 7, 2018)

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.