State v. Ore, 2022-NCCOA-380, __ N.C. App __ (Jun. 7, 2022)

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).