State v. Bailey ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-792
No. COA22-196
Filed 6 December 2022
Person County, No. 20 CRS 316
STATE OF NORTH CAROLINA
v.
KENNETH LEE BAILEY, Defendant.
Appeal by Defendant from order entered 27 September 2021 by Judge Cynthia
K. Sturges in Person County Superior Court. Heard in the Court of Appeals 6
September 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Jessica
Helms, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Sterling
Rozear, for Defendant-Appellant.
DILLON, Judge.
¶1 Defendant Kenneth Lee Bailey appeals from the trial court’s post-conviction
order revoking his probation based on a new criminal offense and urges this Court to
conduct a review of the record similar to our review of criminal judgments pursuant
to Anders v. California, 386 U.S. 738, 744, 18 L.Ed.2d 493, 498 (1967).
STATE V. BAILEY
2022-NCCOA-792
Opinion of the Court
¶2 We note that Defendant did not properly notice his appeal pursuant to Rule 4
of our Rules of Appellate Procedure. He has, however, petitioned our Court to issue
a writ of certiorari to aid in our jurisdiction.
¶3 We, hereby, grant Defendant’s petition for a writ of certiorari to give us
jurisdiction to review the order revoking Defendant’s probation.
¶4 Contemporaneously with the petition for writ of certiorari, Defendant’s counsel
filed a brief 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.”1
¶5 Defendant does not have a constitutional right to counsel at a probation
revocation hearing. State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967)
(“We do not find in the United States Constitution or the North Carolina Constitution
any constitutional right to counsel for a defendant in a proceeding to revoke
probation.”) Though there may be a statutory right to counsel, Anders is not invoked.
See Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (“[W]e reject respondent’s
argument that the Anders procedures should be applied to a state-created right to
counsel[.]”)
1Though not to be construed to suggest that Defendant had an Anders-type right to
submit separate arguments for our consideration, we note that Defendant has not done so.
STATE V. BAILEY
2022-NCCOA-792
Opinion of the Court
¶6 Accordingly, we can only consider arguments not raised by Defendant’s counsel
by invoking Rule 2 of our Rules of Appellate Procedure in the exercise of our
discretion, as any argument not advanced in an appellant’s brief is abandoned under
Rule 28. However, based on the reasoning of our Supreme Court’s opinion in State v.
Ricks, 378 N.C. 737, 862 S.E.2d 835 (2021), we must conclude that it would be an
abuse of our discretion to invoke Rule 2. Id. at 743, 862 S.E.2d at 840 (concluding
that “[b]y allowing defendant’s petition for writ of certiorari and invoking Rule 2 to
review defendant’s challenge to the [trial court’s] order, the Court of Appeals abused
its discretion”).2
¶7 We note that in Ricks, our Court had invoked Rule 2 to suspend Rule 10 to
consider an argument raised in the defendant’s brief, but which had not been
preserved during the trial court proceeding. Here, Defendant is essentially asking us
to suspend Rule 28 to consider arguments not raised in his brief which might have
otherwise been preserved in the trial court for our review. However, we do not see
any reason why our Supreme Court’s reasoning in Ricks would not apply to
2 Ricks does contain language which suggests that our Court lacks authority even to
issue the writ of certiorari “when the petition shows [no] merit.” 378 N.C. at 738, 862 S.E.2d
at 837. However, this statement by our Supreme Court is dicta, and we do not construe the
statement as limiting our jurisdiction to issue writs of certiorari. Rather, the holding in Ricks
limits our discretion to invoke Rule 2 where we have obtained jurisdiction by issue a writ of
certiorari. See State v. Ore, 2022-NCCOA-380, §§ 48-51 (J. Dillon concurring).
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2022-NCCOA-792
Opinion of the Court
Defendant’s appeal, where Defendant has otherwise “failed to show that a refusal to
invoke Rule 2 would result in manifest injustice.” Id. at 742, 862 S.E.2d at 839.3
¶8 Notwithstanding, we have reviewed the indictments to ensure that the trial
court had jurisdiction to try Defendant in the first instance and are satisfied the
indictments were sufficient. See State v. Rankin, 371 N.C. 885, 821 S.E.2d 787 (2018).
Otherwise, since Defendant has made no argument in his brief for our Court to
consider, we do not consider any other argument and affirm the order of the trial
court revoking Defendant’s probation.
AFFIRMED.
Judge MURPHY concurs.
Judge INMAN concurs in result only by separate opinion.
3 We note that prior to our Supreme Court’s decision in Ricks, our Court on occasion
did invoke Rule 2 to suspend Rule 28 and Rule 10 to consider a criminal appeal before us on
certiorari. See, e.g., State v. McGinnis, 2002 N.C. App. LEXIS 2325 (2002) (unpublished)
(suspending Rule 28); State v. Essary, 274 N.C. App. 510, 850 S.E.2d 621 (2020) (unpublished)
(suspending Rule 10).
No. COA22-196 – State v. Bailey
INMAN, Judge, concurring in result only.
¶9 I concur in the majority’s decision to grant Defendant’s petition for certiorari.
But unlike the majority, I would hold that this Court has both the jurisdiction and
authority to consider the issues raised in Defendant’s Anders brief on appeal from an
order revoking his probation without invoking Rule 2 of our Rules of Appellate
Procedure. But conducting Anders-type review in this case, I can discern no
prejudicial error. For this reason, I concur only in the result reached by the majority.
¶ 10 This Court has not previously held, explicitly, that appeals from probation
revocations may be subject to Anders-type review. However, this Court has conducted
Anders-type reviews in appeals from probation revocations or violation
determinations in at least 21 cases, including once in a published decision, over the
past nearly three decades.4 And this Court recently announced its authority to
4 See, e.g., State v. Mayfield, 115 N.C. App. 725, 726-27, 446 S.E.2d 150, 151-52
(1994); State v. Brooks, 2022-NCCOA-145, ¶ 1 (unpublished); State v. Wilder, 271 N.C. App.
805, 842 S.E.2d 346 (2020) (unpublished); State v. Branning, 258 N.C. App. 205, 809 S.E.2d
927 (2018) (unpublished); State v. Grice, 254 N.C. App. 611, 801 S.E.2d 398 (2017)
(unpublished); State v. Woods, 248 N.C. App. 304, 790 S.E.2d 753 (2016) (unpublished);
State v. Williams, 249 N.C. App. 683, 791 S.E.2d 878 (2016) (unpublished); State v. Austin,
238 N.C. App. 199, 768 S.E.2d 63 (2014) (unpublished); State v. Johnson, 220 N.C. App.
160, 723 S.E.2d 582 (2012) (unpublished); State v. Odom, 212 N.C. App. 693, 718 S.E.2d 737(2011) (unpublished); State v. Johnson, 210 N.C. App. 491, 711 S.E.2d 207 (2011)
(unpublished); State v. Blount, 204 N.C. App. 596, 696 S.E.2d 925 (2010) (unpublished);
State v. Burgess, 198 N.C. App. 703, 681 S.E.2d 864 (2009) (unpublished); State v. McNair,
197 N.C. App. 760, 680 S.E.2d 902 (2009) (unpublished); State v. Wilcox, 197 N.C. App. 233,
676 S.E.2d 669 (2009) (unpublished); State v. Wiggins, 187 N.C. App. 307, 652 S.E.2d 752(2007) (unpublished); State v. Talley, 177 N.C. App. 813, 630 S.E.2d 258 (2006)
(unpublished); State v. Parrish, 167 N.C. App. 807, 606 S.E.2d 459 (2005) (unpublished);
State v. Hampton, 162 N.C. App. 181, 590 S.E.2d 332 (2004) (unpublished); State v.
STATE V. BAILEY
2022-NCCOA-792
INMAN, J., concurring in result only
conduct Anders review for appeals in another post-conviction setting—DNA testing
pursuant to N.C. Gen. Stat. § 15A-270.1 (2021)—in State v. Velasquez-Cardenas, 259
N.C. App. 211, 815 S.E.2d 9 (2018).
¶ 11 Although the defendant in Velasquez-Cardenas was not entitled to Anders-like
review as of right because the North Carolina Constitution does not provide for a
right to counsel in post-conviction DNA proceedings, we recognized statutory law
confers that right in such cases. 259 N.C. App. at 215-16, 815 S.E.2d at 12-13
(“[B]ecause the General Assembly has created a general right of appeal from the
denial of motions made pursuant to the Act, this Court clearly has jurisdiction to
consider the request for Anders-type review made by Defendant’s appellate counsel.”
(emphasis in original) (citing State v. Thomsen, 369 N.C. 22, 25, 789 S.E.2d 639, 641-
42 (2016)). We noted that “[i]n all prior opinions of this Court involving Anders briefs
filed pursuant to a[ ] [Section] 15A-270.1 appeal, the State has implicitly accepted the
validity of the Anders procedure, and simply argued that the defendants’ appellate
counsel were correct in their determinations that no meritorious issues were
Lipscomb, 156 N.C. App. 698, 578 S.E.2d 1 (2003) (unpublished); State v. Burrus, 149 N.C.
App. 233, 562 S.E.2d 303 (2002) (unpublished); State v. Owens, 149 N.C. App. 233, 562
S.E.2d 303 (2002) (unpublished). But see State v. Tillman, 278 N.C. App. 149, 2021-
NCCOA-290, ¶ 10 (unpublished) (declining to conduct Anders review because defendants do
not have a constitutional right to counsel at probation revocation hearings); State v. Brown,
261 N.C. App. 538, 817 S.E.2d 922 (2018) (unpublished) (questioning the availability of
Anders review but nonetheless conducting discretionary, independent review in a probation
revocation appeal).
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INMAN, J., concurring in result only
identifiable from the trial records.” Id. at 214, 815 S.E.2d at 11 (citing 13 unpublished
opinions conducting Anders review in an appeal pursuant to Section 15A-270.1). We
further explained there was
no valid reason to deny Anders-type protections to
defendants in criminal proceedings from which there is a
statutory right of appeal, and [could] discern no compelling
reason why this Court, or the State, would find it desirable
to place appointed counsel in the position of choosing
between the duty to zealously assert the client’s position
under the rules of the adversary position, and the
prohibition on advancing frivolous claims.
Id. at 223, 815 S.E.2d at 17 (cleaned up) (emphasis added). We ultimately held, “this
Court has both jurisdiction and the authority to decide whether Anders-type review
should be prohibited, allowed, or required in appeals from [Section] 15A-270.1.
Exercising this discretionary authority, we hold that Anders procedures apply to
appeals pursuant to [Section] 15A-270.1.” Id. at 225, 815 S.E.2d at 18 (emphasis in
original).
¶ 12 This Court’s reasoning and holding in Velasquez-Cardenas applies to the
availability of Anders-like review of the appeal from a probation revocation order in
this case. Thus, I respectfully disagree with the majority opinion’s holding that this
Court is prohibited from conducting an Anders-type review separate from that
constitutionally mandated by Anders and its progeny. See id. at 214-16, 815 S.E.2d
at 12-13 (“The United States Supreme Court is charged with determining what
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INMAN, J., concurring in result only
constitutes the minimum rights and protections guaranteed by the United States
Constitution. States are of course free to permit, or require, procedures that afford
protections beyond what is constitutionally mandated.”).
I. FACTUAL & PROCEDURAL BACKGROUND
¶ 13 I supplement the majority opinion with the following facts disclosed from the
record below:
¶ 14 On 3 December 2019, after pleading guilty to possession of a firearm by a felon,
Defendant was sentenced by the trial court to 17 to 30 months in prison, suspended
for 24 months of supervised probation.
¶ 15 In 2021, Defendant was alleged to have violated the terms of his probation by,
among other things, committing a new criminal offense. During a hearing on 27
September 2021, Defendant admitted to three violations of the terms of his probation,
including committing the criminal offense of possessing a weapon in violation of his
offender status. The trial court revoked Defendant’s probation and activated his
suspended sentence.
¶ 16 Two days later, Defendant filed a handwritten notice of appeal, and the trial
court filed appellate entries. Defendant was then appointed appellate counsel, who
on 9 May 2022 filed a petition for writ of certiorari with this Court as well as a brief
seeking Anders-type review.
STATE V. BAILEY
2022-NCCOA-792
INMAN, J., concurring in result only
II. ANALYSIS
A. Appellate Jurisdiction
¶ 17 Defendant’s handwritten letter filed two days following his probation hearing
notices an appeal of “the courts [sic] verdict.” The letter fails to comply with Rule 4 of
the North Carolina Rules of Appellate Procedure because it does not provide proof of
service upon the State or identify the judgment appealed or to which court the appeal
is taken. See N.C. R. App. P. 4(a)-(c) (2022). Recognizing that Defendant failed to give
proper notice of appeal from the probation revocation order, Defendant’s appellate
counsel filed a petition for writ of certiorari with this Court seeking Anders review.
¶ 18 This Court may issue a writ of certiorari “when the right to prosecute an appeal
has been lost by failure to take timely action.” N.C. R. App. P. 21(a)(1) (2022). Because
Defendant’s handwritten note evinces his intent to appeal the trial court’s revocation
of his probation, in our discretion, I agree with the majority’s decision to grant
Defendant’s petition to review the order revoking Defendant’s probation.
¶ 19 But I disagree with the majority’s determination that we may “only consider
arguments not raised by Defendant’s counsel by invoking Rule 2 in the exercise of our
discretion, as any argument not advanced in an appellant’s brief is abandoned under
Rule 28.” Rule 2 of our Rules of Appellate Procedure provides:
To prevent manifest injustice to a party, or to expedite
decision in the public interest, either court of the appellate
division may, except as otherwise expressly provided by
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INMAN, J., concurring in result only
these rules, suspend or vary the requirements or provisions
of any of these rules in a case pending before it upon
application of a party or upon its own initiative, and may
order proceedings in accordance with its directions.
N.C. R. App. P. 2 (2022). Rule 28(a) provides: “The scope of review on appeal is limited
to issues so presented in the several briefs. Issues not presented and discussed in a
party’s brief are deemed abandoned.” N.C. R. App. P. 28 (2022).
¶ 20 The majority holds that any issues not specifically raised in Defendant’s brief
requesting Anders-type review have been abandoned. Our Court considered this very
question in the context of Anders review on appeal from another post-conviction
proceeding––a motion for appropriate relief seeking DNA testing––in Velasquez-
Cardenas. The State contended that this Court should not conduct an Anders review
of the record. We concluded, independent of Rule 2, “Defendant’s brief requesting
Anders review and the State’s brief contending that we cannot apply Anders review
to this appeal place this issue squarely before us and meet the requirements of Rule
28.” Velasquez-Cardenas, 259 N.C. App. at 224, 815 S.E.2d at 18 (emphasis added).
We ultimately held that Anders review was appropriate in that context. Id. at 225,
815 S.E.2d at 18. A concurring judge wrote a separate opinion expressing concern
that the majority had considered arguments beyond this Court’s jurisdiction because
they were not articulated in compliance with Appellate Rule 28. Id. at 226, 815 S.E.2d
at 19 (Dillon, J., concurring).
STATE V. BAILEY
2022-NCCOA-792
INMAN, J., concurring in result only
¶ 21 Insofar as an appeal from a probation violation hearing is in the same
procedural posture as an appeal from an order denying post-conviction DNA testing,
we are bound by this Court’s majority decision in Velasquez-Cardenas. See In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“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[.]” (citation omitted)). While hearings on
probation violations are not identical to hearings on post-conviction motions for DNA
testing, they are both post-conviction criminal proceedings.
¶ 22 As in Velasquez-Cardenas, Defendant’s brief seeking Anders review has
adequately raised this issue to satisfy Rule 28. Thus, we need not suspend any
appellate rules pursuant to Rule 2 to consider whether Anders procedures apply to
appeals from probation revocations. See, e.g., State v. Robinson, 279 N.C. App. 643,
2021-NCCOA-533, ¶ 9 (allowing a petition for writ of certiorari based on the
defendant’s failure to timely notice an appeal to conduct an Anders review without
invoking Rule 2).
¶ 23 I also cannot agree with the majority’s holding that our Supreme Court’s recent
decision in State v. Ricks, 378 N.C. 737, 2021-NCSC-116, compels us to conclude that
it would be an abuse of discretion to invoke Rule 2 in this case. Ricks holds that we
“may only invoke Rule 2 when injustice appears manifest to the court or when the
case presents significant issues of importance to the public interest.” Id. ¶ 1. Like one
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2022-NCCOA-792
INMAN, J., concurring in result only
member of the majority in this case,
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.
State v. Ore, 283 N.C. App. 524, 2022-NCCOA-380, ¶ 49 (Dillon, J., concurring).
¶ 24 Though I conclude that this Court has jurisdiction to review Defendant’s
appeal without invoking Rule 2, in the alternative, I would conclude that this appeal
properly falls within the narrow scope of the rule. Invoking Rule 2 would not be an
abuse of discretion, as the majority asserts, because review at this time would
“‘expedite decision in the public interest,’ . . . and settle a question of law that would
be certain to otherwise recur,” particularly in light of Defendant’s “clear reliance on
the precedent of this Court in conducting Anders review, without reservation,” on
appeals pursuant to N.C. Gen. Stat. § 15A-1347(a) (2021). Velasquez-Cardenas, 259
N.C. App. at 224-25, 815 S.E.2d at 18. As in Velasquez-Cardenas, countless
defendants have relied upon Anders review of an activation of their prison sentences
upon a revocation of probation, and many future defendants will rely on the
mechanism to vindicate their civil liberties. It would expedite decision in the public
interest to address whether this Court has the authority to conduct Anders review of
probation revocation appeals. See N.C. R. App. P. 2.
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INMAN, J., concurring in result only
¶ 25 Assuming arguendo that determining whether we have the authority to
conduct Anders review on appeal from probation revocations somehow does not
present a “significant issue[] of importance in the public interest,” the Supreme
Court’s reasoning in Ricks about the other prong of Rule 2, to prevent manifest
injustice, does not apply here. This case is distinguishable from Ricks, which
concerned an unpreserved challenge to an order for satellite-based monitoring
(“SBM”)––a “civil, regulatory scheme.” Ricks, ¶¶ 1, 6; State v. Hilton, 378 N.C. 692,
2021-NCSC-115, ¶ 24 (citing State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13
(2010)). In this case, Defendant appeals from a criminal judgment, a distinction this
Court has held is dispositive. Velasquez- Cardenas, 259 N.C. App. at 219, 815 S.E.2d
at 15 (“This Court in Lineberger determined it was bound by Harrison because SBM
proceedings are civil in nature. Neither Harrison nor any other opinion involving
Anders review in civil matters constitutes binding precedent in the criminal matter
presently before us.” (emphasis in original)).
B. Anders-type Review in Probation Revocation Appeals
¶ 26 Having established our jurisdiction over this matter and because the briefs
have raised the issue, see N.C. R. App. P. 28(a), I would take this opportunity to clarify
whether this Court may, in its discretion, conduct an Anders-type review in an appeal
from a probation revocation. See Velasquez-Cardenas, 259 N.C. App. at 226, 815
S.E.2d at 19 (Dillon, J., concurring) (“I agree with the majority’s statement to the
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INMAN, J., concurring in result only
extent that it suggests that we have jurisdiction (i.e., the authority) to conduct an
Anders-like review in the context of an appeal brought pursuant to N.C. Gen. Stat. §
15A-270.1. However, to the extent that the majority’s statement suggests that we are
required to conduct an Anders-like review, I respectfully disagree.” (emphasis
added)). For this reason, I disagree with the majority’s cursory conclusion that
“Anders is not invoked” in this setting.
¶ 27 In its appellate brief, as in the context of appeals from post-conviction DNA
testing in which this Court conducted Anders review, the State does not contest
Defendant’s application of Anders-type review for probation revocation appeals. And
like defendants pursuing post-conviction DNA testing, Defendant here cannot rely on
a constitutional right to counsel in probation revocation proceedings. Cf. State v.
Scott, 187 N.C. App. 775, 777, 653 S.E.2d 908, 909 (2007) (“A defendant at a probation
revocation hearing has a statutory right to counsel akin to the right enjoyed in a
criminal trial.” (emphasis added) (citations omitted)). But, just as it has done in the
context of post-conviction DNA litigation, our General Assembly has created a
statutory right to counsel at probation revocation hearings. N.C. Gen. Stat. § 7A-
451(a)(4) (2021); Velasquez-Cardenas, 259 N.C. App. at 215, 815 S.E.2d at 12-13 (“The
right to counsel on appeal from an order denying post-conviction DNA testing is not
of constitutional origin. It is purely a creature of statute, specifically [Section] 15A-
270.1[.]”). Finally, as is true for appeals from post-conviction DNA testing, defendants
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also have a statutory right to appeal where the trial court revokes their probation
and activates a suspended sentence. N.C. Gen. Stat. § 15A-1347(a) (2021); Velasquez-
Cardenas, 259 N.C. App. at 223, 815 S.E.2d at 17.
¶ 28 Following our historical practice of conducting Anders-type review in this
context and our decision in Velasquez-Cardenas, I would conclude “this Court has
both jurisdiction and the authority to decide whether Anders-type review should be
prohibited, allowed, or required in appeals from [probation revocation]. Exercising
this discretionary authority, [I would] hold that Anders procedures apply to appeals
pursuant to [Section 15A-1347(a)].” 259 N.C. App. at 225, 815 S.E.2d at 18 (emphasis
in original). Having concluded Defendant’s counsel could proceed pursuant to Anders
procedures in this matter, I would then address the merits of Defendant’s arguments.
See id.
C. Anders-type Review in this Case
¶ 29 Contemporaneously with the petition for writ of certiorari, Defendant’s counsel
also filed a brief 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.” Defendant has not submitted
separate arguments for our consideration.
¶ 30 This Court has summarized Anders procedures as follows:
In order to comply with Anders, appellate counsel [is]
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required to file a brief referring any arguable assignments
of error, as well as provide [the] defendant with copies of
the brief, record, transcript, and the State’s brief. Kinch,
314 N.C. at 102, 331 S.E.2d at 666-67 . . . . Pursuant
to Anders, this Court must conduct “a full examination of
all the proceedings[,]” including a “review [of] the legal
points appearing in the record, transcript, and briefs, not
for the purpose of determining their merits (if any) but to
determine whether they are wholly frivolous.” Kinch, 314
N.C. at 102-103, 331 S.E.2d at 667 (citation omitted).
Robinson, ¶¶ 10-11. See also Velasquez-Cardenas, 259 N.C. App. at 225, 815 S.E.2d
at 18.
¶ 31 Defendant’s appellate counsel has complied with the requirements of Anders
and Kinch. Counsel’s brief, consistent with his obligation under Anders to refer this
Court to “anything in the record that might arguably support the appeal,” Anders v.
California, 386 U.S. 738, 744, 18 L.Ed.2d 493, 498 (1967), directs us to consider: (1)
whether the indictment was legally sufficient to confer jurisdiction on the trial court;
(2) whether the revocation of probation was proper; and (3) whether Defendant’s
sentence was authorized by statute.
¶ 32 Defendant’s indictments were legally sufficient and conferred jurisdiction on
the trial court because they gave Defendant notice of the criminal charges against
him with sufficient detail. See State v. Harris, 219 N.C. App. 590, 592-93, 724 S.E.2d
633, 636 (2012) (“[A]n indictment must contain: ‘A plain and concise factual
statement in each count which . . . asserts facts supporting every element of a criminal
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offense and the defendant’s commission thereof with sufficient precision clearly to
apprise the defendant or defendants of the conduct which is the subject of the
accusation.’” (quoting N.C. Gen. Stat. § 15A-924(a)(5) (2011))).
¶ 33 The trial court appropriately revoked Defendant’s probation as authorized by
N.C. Gen. Stat. § 15A-1344(a) (2021) after he admitted to the alleged probation
violation of committing a new criminal offense. See, e.g., State v. Melton, 258 N.C.
App. 134, 136-37, 811 S.E.2d 678, 680-81 (“A trial court may only revoke a defendant’s
probation in circumstances when the defendant: (1) commits a new criminal offense,
in violation of N.C. Gen. Stat. § 15A-1343(b)(1) . . . .”).
¶ 34 Finally, Defendant’s sentence falls squarely within the presumptive range
authorized by statute for a Class G Felony at a Prior Record Level III––a minimum
of 17 months and a maximum of 30 months imprisonment. See N.C. Gen. Stat. § 15A-
1340.17(c)-(d) (2021).
¶ 35 Having fully examined the record for issues of arguable merit and given that
it is well within a trial court’s discretion to revoke a defendant’s probation for the
commission of a new offense, Melton, 258 N.C. App. at 136-37, 811 S.E.2d at 680-81,
I am unable to find any possible prejudicial error and would hold that this appeal is
wholly frivolous.
¶ 36 Thus, while I reach the same result as the majority and can provide no relief
to Defendant, I write separately to distinguish between this Court’s authority to
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exercise its discretion and total want of jurisdiction. See, e.g., State v. Killette, 381
N.C. 686, 2022-NCSC-80, ¶ 16 (vacating and remanding this Court’s decision denying
a defendant’s petition for writ of certiorari for lack of jurisdiction a second time, after
earlier remand from the Supreme Court, because “the Court of Appeals has
jurisdiction and authority to issue the writ of certiorari here, although it is not
compelled to do so, in the exercise of its discretion”).
III. CONCLUSION
¶ 37 I would hold this Court has jurisdiction to reach the issues raised in the briefs
and that Anders procedures apply to appeals from probation revocations. After
conducting an Anders-type review of the record in this case, however, I can discern
no prejudicial error. For this reason, I concur only in the result reached by the
majority.