State v. Ore ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-380
No. COA21-693
Filed 7 June 2022
Davidson County, No. 20 CRS 50976, 21 CRS 681
STATE OF NORTH CAROLINA
v.
JONATHAN DANIEL ORE
Appeal by defendant from judgments entered 22 June 2021 by Judge V.
Bradford Long in Davidson County Superior Court. Heard in the Court of Appeals
11 May 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Shelby N.S.
Boykin, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Candace
Washington, for defendant-appellant.
TYSON, Judge.
¶1 Jonathan Daniel Ore (“Defendant”) seeks appellate review of orders modifying
his probation and holding him in contempt. Defendant has no statutory right to
appeal the waiver of counsel or the modification of his probation. Defendant
recognizes this fact and has filed a petition for writ of certiorari (“PWC”). We dismiss
Defendant’s PWC seeking review of the waiver of counsel and the modification of his
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Opinion of the Court
probation. We allow Defendant’s other PWC to review the trial court’s order holding
him in contempt and affirm.
I. Background
¶2 Defendant pleaded guilty to possession of methamphetamine on 3 November
2020. He was sentenced to serve a term of 8 to 19 months imprisonment, which was
suspended, and he was placed on supervised probation for twelve months.
Defendant’s suspension of sentence and probation judgment included among other
conditions that he: (1) obtain a substance abuse assessment; (2) complete any
recommended treatment; (3) if unemployed, complete the Treatment Accountability
for Safer Communities (“TASC”) program; (4) submit to drug testing; and, (5) not
engage in further criminal activity.
¶3 On 27 May 2021, Kierra Mobley (“Officer Mobley”), filed a probation violation
report alleging Defendant had willfully violated the conditions of his probation by: (1)
testing positive three times for controlled substances on 18 March 2021, 19 April
2021, and 27 May 2021; (2) failing to report to his probation officer on 25 May 2021
and 26 May 2021; (3) being charged with criminal trespass on 22 May 2021; and, (4)
being discharged from TASC for failing to obtain a drug and alcohol assessment
within 30 days of his referral.
¶4 A probation violation hearing was noticed for and held on 22 June 2021. At
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the hearing on his violation report, Defendant indicated to the trial court he desired
to represent himself. The State requested the trial court to conduct a colloquy into
Defendant’s knowing and voluntary waiver of counsel prior to accepting Defendant’s
request. The trial court inquired into Defendant’s request, informed him of potential
adverse consequences of proceeding unrepresented, and accepted his waiver of
counsel. Defendant signed a written waiver of all assistance of counsel in open court.
¶5 Officer Mobley was called and testified about Defendant’s multiple violations
asserted in the 27 May 2021 probation violation report. Defendant did not cross-
examine Officer Mobley nor did he testify or offer any evidence. The State
recommended Defendant’s probation be modified and extended for 6 months to allow
him to undergo substance abuse treatment with the Drug and Alcohol Recovery
Treatment Center (“DART Center”).
¶6 The trial court agreed with the State’s recommendation and ordered Defendant
to be held in custody until he could enter the DART Center. Defendant did not testify,
offer evidence, or argue his case, but stated he did not believe he was going to jail.
¶7 The trial court began to enter its findings when Defendant blurted out: “just
activate my damn sentence. That’s what you done.” The trial court explained it was
only holding Defendant in custody until he could receive DART therapy. Defendant
responded, “[t]hat’s crazy. I mean, y’all just tricked me all the way. Dang. Be honest.
Why don’t you f--king be honest with me some Godd--n time. I mean, y’all–y’all are
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con artist (sic). Y’all con people.” The trial court informed Defendant if he said “one
more word” the court would “give [him] 30 days for direct criminal contempt.”
¶8 The trial court found evidence supported the violations as alleged in the 27
May 2021 probation violation report and concluded Defendant was in knowing and
willful violation of supervised probation without justifiable excuse. The trial court
extended Defendant’s probation term for 6 months and ordered him to complete the
“DART drug/alcohol treatment program maintained by the North Carolina
Department of Corrections.” The trial court also ordered Defendant to remain in
custody until he could attend DART.
¶9 The trial court clarified it would only allow Defendant to remain in custody for
a maximum of two weeks while waiting for an opening for DART. If no opening
became available within two weeks, the trial court would revisit treatment options.
As Defendant was exiting the courtroom, he stated: “Come on, ma’am. You tricked
me, Mobley. Why’d you do me like this? Y’all start all this sh-- all over again.”
¶ 10 The trial court instructed the bailiffs to bring Defendant back before the court
and began contempt proceedings. The trial court found Defendant to be in direct
criminal contempt and ordered him to serve an active sentence of 30 days. The trial
court made appellate entries for the contempt charge.
II. Jurisdiction
A. Modification and Extension of Probation
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Opinion of the Court
¶ 11 Defendant has no constitutional or common law right to appeal. “Similar to
federal procedure, a North Carolina criminal defendant’s right to appeal a conviction
is provided entirely by statute.” State v. Berryman, 360 N.C. 209, 214, 624 S.E.2d
350, 354 (2006) (citations omitted). Defendant entered no purported notice of appeal.
¶ 12 N.C. Gen. Stat. § 15A-1347(a) provides: “When a superior court judge as a
result of a finding of a violation of probation, activates a sentence or imposes special
probation, either in the first instance or upon a de novo hearing after appeal from a
district court, the defendant may appeal under G.S. 7A-27.” N.C. Gen. Stat. § 15A-
1347(a) (2021) (emphasis supplied).
¶ 13 Defendant’s initial term of probation was modified and extended after
competent evidence of and findings and conclusions he had committed multiple
willful violations. His sentence was not activated nor did the court impose a special
condition of probation. Id. “[A] defendant does not have the right to appeal from an
order that merely modifies the terms of probation where the [d]efendant’s sentence
was neither activated nor was it modified to ‘special probation.’” State v. Romero, 228
N.C. App. 348, 350, 745 S.E.2d 364, 366 (2013) (Dillon, J.) (citation and first quotation
marks omitted). Defendant has no right to appeal the modification and extension of
his probation unless one of the two statutory conditions above is met. Id.¶ 14 Recognizing he has no right to appeal, Defendant petitioned for a writ of
certiorari to purport to invoke this Court’s appellate jurisdiction, while showing no
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merit or prejudice. State v. Ricks, 378 N.C. 737, 738, 862 S.E.2d 835, 837, 2021-NCSC-
116, ¶ 1 (2021) (“[A]n appellate court may only consider certiorari when the petition
shows merit, meaning that the trial court probably committed error at the hearing.”)
This Court is “without [statutory] authority to review, either by right or by certiorari,
the trial court’s modification of defendant’s probation.” State v. Edgerson, 164 N.C.
App. 712, 714, 596 S.E.2d 351, 353 (2004); see N.C. Gen. Stat. § 15A-1347.
¶ 15 “Certiorari is a discretionary writ, to be issued only for good and sufficient
cause shown.” State v. Rouson, 226 N.C. App. 562, 564, 741 S.E.2d 470, 471 (2013)
(citing State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)) “A petition for
the writ [of certiorari] must show merit or that [prejudicial and reversible] error was
probably committed below.” Id.¶ 16 Other than recognizing this Court’s power of jurisdiction to exercise our
discretion of appellate review over petitions for writ of certiorari, nothing in the
holdings of either State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015) or State v.
Ledbetter, 371 N.C. 192, 814 S.E.2d 39 (2018) bears any significance to the issues
before us in this appeal. Neither Edgerson, nor N.C. Gen. Stat. § 15A-1347 is cited
in either opinion.
¶ 17 In Stubbs, our Supreme Court held:
given that our state constitution authorizes the General
Assembly to define the jurisdiction of the Court of Appeals,
and given that the General Assembly has given that court
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broad powers to supervise and control the proceedings of
any of the trial courts of the General Court of Justice, and
given that the General Assembly has placed no limiting
language in subsection 15A-1422(c) regarding which party
may appeal a ruling on an MAR, we hold that the Court of
Appeals has jurisdiction to hear an appeal by the State of
an MAR when the defendant has won relief from the trial
court.
Stubbs, 368 N.C. at 43, 770 S.E.2d at 76 (internal citations omitted) (emphasis
supplied). Stubbs merely interprets N.C. Gen. Stat. § 15A-1422 to allow an appellate
court to review the State’s PWC to review a trial court’s decision on the denial of the
State’s motion for appropriate relief (“MAR”) in a superior court. Id.
¶ 18 In Ledbetter, our Supreme Court extended the same statutory analysis from
MARs to PWCs seeking appellate review of guilty pleas, and held our Court has
jurisdiction and consequently discretionary authority to allow appellate review of a
PWC under N.C. Gen. Stat. § 15A-1444(e) (2017). Ledbetter, 371 N.C. 196, 814 S.E.2d
at 42; N.C. Gen. Stat. § 15A-1444(e) (“Except as provided in subsections (a1) and (a2)
of this section and G.S. 15A-979, and except when a motion to withdraw a plea of
guilty or no contest has been denied, the defendant is not entitled to appropriate
review as a matter of right when he has entered a plea of guilty or no contest to a
criminal charge in the superior court, but he may petition the appellate division for
review by writ of certiorari.”) (emphasis supplied).
¶ 19 Ledbetter and Stubbs stand for the proposition that where a “valid statute gives
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the Court of Appeals jurisdiction to issue a writ of certiorari, Rule [of Appellate
Procedure] 21 cannot take it away.” Ledbetter, 371 N.C. 196, 814 S.E.2d at 42
(citations omitted). Here, Defendant’s purported PWC seeks appellate review of a
statutory non-reviewable extension of his probation made pursuant to N.C. Gen. Stat.
§ 15A-1347. Nowhere has the General Assembly granted this Court authority to hear
cases or consider a PWC to review an extension of probation except for two specified
instances in N.C. Gen. Stat. § 15A-1347(a).
¶ 20 “Where a panel of the Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. 373,
384, 379 S.E.2d 30, 37 (1989). The Supreme Court of North Carolina has not
overruled Edgerson.
¶ 21 Neither Stubbs or Ledbetter cited bear on any issue in this case. “We are
without authority to overturn the ruling of a prior panel of this Court on the same
issue.” Poindexter v. Everhart, 270 N.C. App. 45, 51, 840 S.E.2d 844, 849 (2020)
(citation omitted) (emphasis supplied) (Dietz, Tyson, and Inman, JJ.). Edgerson
remains binding precedent upon this Court. Edgerson, 164 N.C. App. at 714, 596
S.E.2d at 353. Despite my concurring colleagues’ notion otherwise and stretching
exercises, Edgerson has not been and cannot be overruled by implication, particularly
where Edgerson nor the statute it relies upon are not cited in any opinion they
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Opinion of the Court
purport to rely upon. Poindexter, 270 N.C. App. at 51, 840 S.E.2d at 849.
¶ 22 “When two statutes apparently overlap, it is well established that the statute
special and particular shall control over the statute general in nature, even if the
general statute is more recent, unless it clearly appears that the legislature intended
the general statute to control.” Seders v. Powell, 298 N.C. 453, 459, 259 S.E.2d 544,
549 (1979). N.C. Gen. Stat. § 15A-1347(a) specifically applies to this Court’s power
to hear appeals from probation violation hearings.
¶ 23 Given this Court may possess jurisdictional power to review petitions for writ
of certiorari or for other prerogative writs, that residual power does not compel this
Court to review such a wholly frivolous petition, where Defendant failed to show any
merit or potential prejudicial reversible error in the clear and uncontested facts
before us. Grundler, 251 N.C. at 189, 111 S.E.2d at 9.
¶ 24 This issue should have presented to this Court, if at all under an Anders brief.
Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493 (1967). Certiorari is a rare writ,
based upon petitioner’s burden of showing of both merit and prejudice. The petition
is not a vehicle to ignore preservation, lack of objections, proffers or evidence, failure
to appeal, or to provide a backdoor review for wholly unmeritorious claims, even in a
death penalty case. Grundler, 251 N.C. at 189, 111 S.E.2d at 9.
¶ 25 Defendant’s PWC shows no merit or prejudice to support his requested
discretionary writ. See Ricks, 378 N.C. at 738, 862 S.E.2d at 837, 2021-NCSC-116, ¶
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1 (“[A]n appellate court may only consider certiorari when the petition shows merit,
meaning that the trial court probably committed error at the hearing.”). To any
extent Defendant has a cognizable right for PWC, in the exercise of our discretion we
deny Defendant’s PWC.
¶ 26 In compliance with the statute, Defendant’s wholly frivolous PWC seeking this
Court to review the trial court’s order on the modification and extension of his
probation violations is dismissed. Defendant’s purported petition to review the trial
court’s order on his extension of supervision for unchallenged and not appealed
probation violations is dismissed.
B. Criminal Contempt
¶ 27 After finding Defendant to be in contempt and sentencing him, the trial court
stated: “Enter notice of appeal for his contempt citation.” Defendant responded
“Thank you.”
¶ 28 The transcript does not reflect Defendant entered either oral or written notice
of appeal. Defendant again acknowledges the inadequacy of his notice of appeal and
also petitions this Court to issue a writ of certiorari authorizing appellate review of
the judgment finding him in contempt.
¶ 29 “[A] writ of certiorari may be issued in appropriate circumstances by either
appellate court to permit review of the judgments and orders of trial tribunals when
the right to prosecute an appeal has been lost by failure to take timely action[.]” N.C.
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R. App. P. 21(a)(1).
¶ 30 A defective notice of appeal “should not result in loss of the appeal as long as
the intent to appeal from a specific judgment can be fairly inferred from the notice
and the appellee is not misled by the mistake.” Phelps Staffing, LLC v. S.C. Phelps,
Inc., 217 N.C. App. 403, 410, 720 S.E.2d 785, 791 (2011) (citation and quotation marks
omitted) (emphasis supplied).
¶ 31 Here, the State has not advanced any allegations tending to show it has been
delayed, misled, or prejudiced by Defendant’s defective notice of appeal. Defendant’s
intent to appeal can be “fairly inferred” from his colloquy with the trial court. Id.Given the trial court’s immediate action of appellate entries, the State cannot show
prejudice by the defective notice.
¶ 32 Defendant has lost his appeal of the judgment finding him in contempt through
“failure to take timely action[.]” N.C. R. App. P. 21(a)(1). We allow Defendant’s PWC,
in the exercise of our discretion, and address the merits of the criminal contempt
order.
III. Issue
¶ 33 Defendant argues the trial court erred in finding him in direct criminal
contempt.
IV. Contempt Order
A. Standard of Review
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Opinion of the Court
¶ 34 The standard of review in direct criminal contempt is “whether . . . competent
evidence . . . support[s] the trial court’s findings of fact and whether the findings
support the conclusions of law and ensuing judgment.” State v. Simon, 185 N.C. App.
247, 250, 648 S.E.2d 853, 855 (2007) (citation and quotation marks omitted). “The
trial judge’s findings of fact are conclusive [on appeal] when supported by any
competent evidence and are reviewable only for the purpose of passing on their
sufficiency.” State v. Coleman, 188 N.C. App. 144, 148, 655 S.E.2d 450, 453 (2008)
(citation, quotation marks, and ellipses omitted).
B. Analysis
¶ 35 Defendant argues the trial court erred by finding him in direct criminal
contempt. N.C. Gen. Stat. § 5A-11 (2021). Defendant asserts his words and actions
in open court failed to establish he was in willful violation of the statute sanctioning
direct criminal contempt, Defendant argues the trial court’s findings of fact did not
support the conclusion he was in willful criminal contempt of court.
¶ 36 “Criminal contempt is imposed in order to preserve the court’s authority and
to punish disobedience of its orders. Criminal contempt is a crime, and constitutional
safeguards are triggered accordingly.” Watson v. Watson, 187 N.C. App. 55, 61, 652
S.E.2d 310, 315 (2007) (internal citation omitted). “If a trial court’s finding is
supported by competent evidence in the record, it is binding upon an appellate court,
regardless of whether there is evidence in the record to the contrary.” State v. Key,
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Opinion of the Court
182 N.C. App. 624, 627, 643 S.E.2d 444, 447 (2007).
¶ 37 N.C. Gen. Stat. § 5A-11(a) articulates acts which constitute criminal contempt,
including:
(1) Willful behavior committed during the sitting of a court
and directly tending to interrupt its proceedings.
(2) Willful behavior committed during the sitting of a court
in its immediate view and presence and directly tending to
impair the respect due its authority.
(3) Willful disobedience of, resistance to, or interference
with a court’s lawful process, order, directive, or
instruction or its execution.
N.C. Gen. Stat. § 5A-11(a) (2021).
¶ 38 “Willfulness” under N.C. Gen. Stat. § 5A-11(a) is defined as “an act done
deliberately and purposefully in violation of law, and without authority, justification,
or excuse.” State v. Phair, 193 N.C. App. 591, 594, 668 S.E.2d 110, 112 (2008) (citation
and quotation marks omitted).
¶ 39 The trial court found Defendant’s behavior in both words and actions in open
court, despite warnings of his prior words, actions, and conduct, was improper.
Defendant was found to have “exhibit[ed] disruptive behavior during the proceeding;
by speaking over the judge and using profane language at the time of sentencing, by
verbally shouting f--k and [by] using the Lord’s name in vain.” The trial court
concluded, and the transcript shows, Defendant’s conduct “interrupted the
proceedings of the court and impaired the respect due its authority.”
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Opinion of the Court
¶ 40 This finding of fact supports the trial court’s conclusion of law that in the
presence of the court, Defendant’s words and actions willfully interrupted the
proceedings and impaired the respect due the Court’s authority beyond a reasonable
doubt. The trial court did not err in holding Defendant in direct criminal contempt.
N.C. Gen. Stat. § 5A-11. Defendant’s argument is overruled.
V. Conclusion
¶ 41 Defendant does not possess the statutory right to appeal the modification and
extension of his probation or his informed and admitted waiver of counsel, nor does
the statute provide this Court the statutory authority to review his PWC on
modification of his probation. N.C. Gen. Stat. § 15A-1347; Edgerson, 164 N.C. App.
at 714, 596 S.E.2d at 353. To any extent his petition may be cognizable, in the
exercise of our discretion, Defendant’s PWC to review the trial court’s order modifying
and extending his probation violation is wholly without merit or prejudice and his
purported appeal therefrom is dismissed.
¶ 42 In the exercise of our discretion, we allow Defendant’s other PWC and hold the
trial court did not err in finding Defendant’s willful conduct violated the direct
criminal contempt in the statute. N.C. Gen. Stat. § 5A-11. The order of the trial court
is affirmed. It is so ordered.
DISMISSED IN PART; AFFIRMED IN PART.
Judge DILLON concurs by separate opinion.
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Opinion of the Court
Judge DIETZ concurs by separate opinion.
No. COA21-693 – State v. Ore
DILLON, Judge, concurring.
¶ 43 I concur. I write separately to address the jurisdictional issue raised in the
lead opinion, specifically our Court’s authority to issue a writ of certiorari in order to
review a trial court’s modification of a defendant’s probation. I agree with the
statement in the lead opinion that we have “jurisdiction power” to entertain such
writs and that our “residual power does not compel this Court to [grant] a wholly
frivolous petition[.]” I do not agree, though, with any statement to the extent that
such statement could be construed to suggest that we lack jurisdictional authority —
statutory or otherwise — to issue such writ in this case, if we were so inclined.
Rather, though defendant clearly has no statutory right to an appeal, this Court has
been granted the power/authority by our General Assembly to issue a writ of
certiorari.
¶ 44 I first explained in my concurring opinion in State v. Stubbs that it is our
General Assembly, and not our Supreme Court, which has the constitutional
authority to confer upon our Court jurisdiction to issue writs of certiorari:
The North Carolina Constitution states that this Court has
appellate jurisdiction “as the General Assembly may
prescribe.” N.C. Const. Article IV, Section 12(2).
Our General Assembly has prescribed that this Court has
jurisdiction “to issue . . . prerogative writs, including . . .
certiorari . . . to supervise and control the proceedings of
any of the trial courts [.]” N.C. Gen. Stat. § 7A-32(c) (2011).
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DILLON, J., concurring
The General Assembly further has prescribed that the
“practice and procedure” by which this Court exercises its
jurisdiction to issue writs of certiorari is provided, in part,
by “rule of the Supreme Court.” Id.
The Supreme Court has enacted the Rules of Appellate
Procedure, which includes Rule 21, providing that writs of
certiorari may be issued by either this Court or the
Supreme Court in [certain] circumstances, none of which
applies to the State's appeal in this case.
***
I believe that . . . our subject matter jurisdiction to issue
writs of certiorari is not limited to the circumstances
contained in Rule 21 [.]
Additionally, in Rule 1 of the Rules of Appellate Procedure,
our Supreme Court stated that the appellate rules “shall
not be construed to extend or limit the jurisdiction of the
courts of the appellate division[.]” Id.
232 N.C. App. 274, 287-88, 754 S.E.2d 174, 183 (2014) (Dillon, J., concurring).
¶ 45 Our Supreme Court essentially adopted my analysis, stating that “while Rule
21 might appear at first glance to limit the jurisdiction of the Court of Appeals [to
issue writs of certiorari], the Rules [of Appellate Procedure] cannot take away
jurisdiction given to that court by the General Assembly in accordance with the North
Carolina Constitution.” State v. Stubbs, 368 N.C. 40, 44, 770 S.E.2d 74, 76 (2015).
¶ 46 Our General Assembly — in the exercise of its constitutional authority — has
granted our Court broad authority to issue writs of certiorari generally, and there is
no statute that suggests that we do not have the authority to issue the writ to review
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DILLON, J., concurring
the trial court’s order in this case. Indeed, the General Assembly has provided that
our Court has “jurisdiction to review upon appeal decisions of [any trial court] upon
matters of law or legal inference, in accordance with the system provided in this
Article.” N.C. Gen. Stat. § 7A-26 (2021). And later in the Article, our General
Assembly has conferred upon our Court jurisdiction to issue writs of certiorari “in aid
of [our] jurisdiction, or to supervise and control the proceedings of any of the trial
courts.” N.C. Gen. Stat. § 7A-32(c).
¶ 47 Though our Supreme Court does not have the constitutional authority to define
our jurisdiction in granting writs, that Court does have concurrent authority with
our General Assembly to provide “[t]he practice and procedure” that our Court must
follow when considering petitions for writs. Id. And in those instances where we
have jurisdiction to issue a writ, but also where neither our Supreme Court nor the
General Assembly has established by rule or statute a procedure for exercising our
jurisdiction, we may exercise said jurisdiction “according to the practice and
procedure of the common law.” Id.
¶ 48 I do recognize that our Supreme Court’s decision in State v. Ricks, 378 N.C.
737, 738, 2021-NCSC-116, ¶ 1 contains language which suggests that our Court has
no authority to issue a writ of certiorari “when the petition shows [no] merit.”
However, I believe this statement is dicta and, otherwise, not intended to be a
limitation on our jurisdiction to issue a writ of certiorari. Indeed, it is not uncommon
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DILLON, J., concurring
for our Court to issue a writ in order to review a defendant’s appeal where there is a
jurisdictional defect in his or her notice of appeal, where the State has not been
prejudiced by the defect, even where said defendant’s appeal has little, if any merit.
Our Court does not always allow such writs, especially where the issues raised have
little merit. But we might choose to do so, for instance, where considering and
resolving the issues would promote judicial economy by eliminating the need for the
trial court to have to consider a subsequent motion for appropriate relief or ineffective
assistance of counsel.
¶ 49 I also recognize that language in Ricks could be read to suggest that our
Supreme Court has the authority to limit the exercise of our jurisdiction conferred
upon us by the General Assembly to issue such writs where that Court concludes that
we have “abuse[d our] discretion.” However, I do not read Ricks as holding that our
Court lacks jurisdiction to issue a writ to review a legal issue that otherwise was not
preserved at the trial court (and therefore would require us to invoke Rule 2 to reach).
Such a reading would suggest a limitation of our jurisdiction to issue such writs,
which our Supreme Court does not have the constitutional authority to do. Rather, I
construe our Supreme Court’s holding in Ricks simply to mean that it was an abuse
of discretion for our Court to invoke Rule 2 once the case was before us on certiorari,
because we had already shown grace by granting the writ to let the appellant in the
door.
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DILLON, J., concurring
¶ 50 In sum, my understanding is that our General Assembly establishes our
jurisdiction to review issues of law arising in our trial courts and that our General
Assembly has conferred upon our Court broad authority to issue writs of certiorari to
reach those legal issues. Also, it is my understanding that our Supreme Court can
establish rules, instituting practices and procedures by which we are to exercise our
jurisdictional authority, but that such rules cannot otherwise limit our jurisdiction,
as that Court recognized in Stubbs.
¶ 51 In any event, our Supreme Court in Stubbs recognized that our Court has been
granted the authority by our General Assembly to issue a writ of certiorari to review
an order in a situation where our General Assembly provided the party no right to
appeal. Id. at 44, 770 S.E.2d at 76. Just like in Stubbs, the fact that the General
Assembly has expressly stated that the defendant here has no right to appeal does
not strip our Court of our authority to issue a writ of certiorari, which was granted to
us by the General Assembly.
No. COA21-693 – State v. Ore
DIETZ, Judge, concurring.
¶ 52 I concur in the result of this case but I do not join the statement that this Court
is “without [statutory] authority to review, either by right or by certiorari, the trial
court’s modification of defendant’s probation.” This is not a correct statement of the
law. We have the authority to review this issue by certiorari. See N.C. Gen. Stat. § 7A-
32; State v. Stubbs, 368 N.C. 40, 44, 770 S.E.2d 74, 76 (2015); State v. Thomsen, 369
N.C. 22, 25, 789 S.E.2d 639, 641–42 (2016).
¶ 53 This well-settled legal principle was cemented in an epic sequence of remands,
reversals, and disavowals in State v. Ledbetter, 243 N.C. App. 746, 747, 779 S.E.2d
164, 165 (2015), remanded for reconsideration in light of Stubbs, 369 N.C. 79, 793
S.E.2d 216 (2016), on remand, 250 N.C. App. 692, 692, 794 S.E.2d 551, 552 (2016),
reversed and remanded again, 371 N.C. 192, 814 S.E.2d 39 (2018), on remand, 261
N.C. App. 71, 819 S.E.2d 591 (2018), discretionary review denied in special order that
“disavows the language in the last paragraph of the Court of Appeals’s decision,” 372
N.C. 692, 830 S.E.2d 820 (2019).
¶ 54 Yet here we are again, with a Court of Appeals opinion citing a case (this time,
State v. Edgerson) that relies on Rule 21 for the proposition that we are without
authority to review an issue by certiorari because the applicable statute provides no
appeal by right. And, worse yet, that citation accompanies a categorical statement
that is inconsistent with Stubbs, Thomsen, and Ledbetter and uses precisely the sort
STATE V. ORE
2022-NCCOA-380
DIETZ, J., concurring
of language that our Supreme Court disavowed in Ledbetter and quite plainly
instructed us not to use again.
¶ 55 As I previously have explained, “I will faithfully adhere to our responsibility to
follow controlling precedent and leave it to our Supreme Court to determine if that
precedent should change.” Cedarbrook Residential Ctr., Inc. v. N.C. Dep’t of Health &
Hum. Servs., 2021-NCCOA-689, ¶ 38 (Dietz, J., concurring). The Supreme Court has
spoken. We have the authority under N.C. Gen. Stat. § 7A-32 to issue a writ of
certiorari in our discretion to review a trial court decision for which the General
Statutes do not provide litigants with an appeal by right. And, in exercising that
authority, we should not cite to case law, or make statements, suggesting that Rule
21 of the Rules of Appellate Procedure in any way diminishes that authority.
¶ 56 Given the overwhelming weight of Supreme Court precedent instructing this
Court not to rely on these outdated cases or use this sort of language, it is frustrating
to continue seeing it in our opinions. Had the lead opinion simply acknowledged that
we have statutory authority to issue a writ of certiorari but that, in our discretion,
we deny the petition in this case because the defendant has not presented a
meritorious argument, this would be a unanimous, single-opinion decision. Instead,
the lead opinion insists that Edgerson—because it is not cited in Stubbs, Thomsen,
and Ledbetter—is still good law on this issue. That is not an accurate statement of
the law and thus I concur only in the result of this case.