State v. Galloway ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-610
Filed: 19 May 2020
Henderson County, Nos. 13 CRS 55306, 55311; 14 CRS 53861, 54044, 54052
STATE OF NORTH CAROLINA
v.
TYLER JOSEPH GALLOWAY
Appeal by defendant from judgments entered 17 and 18 December 2018 by
Judge William H. Coward in Henderson County Superior Court. Heard in the Court
of Appeals 19 February 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Jessica
Helms, for the State.
Guy J. Loranger for defendant.
DIETZ, Judge.
After Defendant Tyler Joseph Galloway pleaded guilty to multiple offenses, the
trial court suspended his three consecutive sentences and placed him on supervised
probation. Later, at a probation violation hearing, the trial court revoked Galloway’s
probation, reactivated his sentences, and awarded him 343 days of jail credit.
Galloway appeals the judgments revoking his probation, asking this Court to remand
the case to the trial court to determine whether he should have received an additional
107 days of credit.
STATE V. GALLOWAY
Opinion of the Court
Under precedent from this Court, Galloway’s argument is not suited for
appellate review at this time. State v. Cloer, 197 N.C. App. 716, 721, 678 S.E.2d 399,
403 (2009). Accordingly, we dismiss Galloway’s appeal without prejudice so that he
may, if he chooses, seek relief from the trial court pursuant to N.C. Gen. Stat. § 15-
196.4 and then, if necessary, appeal the trial court’s determination with a record
suitable for meaningful review in this Court.
Facts and Procedural History
On 18 May 2015, Defendant Tyler Joseph Galloway pleaded guilty to three
counts of possession of a firearm by a felon, one count of felony larceny, and one count
of obtaining property by false pretenses. After consolidating three of the charges, the
trial court entered three judgements sentencing Galloway to three consecutive prison
terms of 14 to 26 months each. The court suspended these sentences and placed
Galloway on supervised probation for 36 months.
On 18 December 2018, the trial court held a probation violation hearing based
on violation reports filed earlier that year. Galloway admitted to the trial court that
he willfully violated his probation. Before the court revoked Galloway’s probation,
defense counsel requested that the court grant Galloway 450 days of jail credit.
Earlier that day, defense counsel had also filed a “Certification of Defendant’s Pretrial
Confinement Credit,” asserting that Galloway was entitled to 450 days of credit.
However, upon revoking Galloway’s probation and reactivating his three sentences,
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STATE V. GALLOWAY
Opinion of the Court
the court applied 343 days of pretrial confinement credit to the first sentence. The
record on appeal does not indicate how the trial court arrived at its 343-day credit
determination or the basis for rejecting the larger credit asserted by Galloway.
Galloway appealed the trial court judgments and also petitioned for a writ of
certiorari.
Analysis
Galloway’s sole argument on appeal concerns the discrepancy between the 450
days of jail credit he requested and the 343 days of credit the trial court awarded. He
contends that the record fails to explain how either his counsel or the trial court
calculated the days of credit to which he was entitled. Thus, Galloway asks this Court
to vacate the trial court’s judgments and remand his case for resentencing “and a
determination of the appropriate amount of pretrial confinement credit which he is
due.” In the alternative, he asks that we dismiss his appeal without prejudice so he
may raise the issue in a motion to the trial court for additional credit. We agree that
Galloway’s alternative request is the proper remedy here.
As a preliminary matter, Galloway acknowledges that the General Statutes do
not expressly provide a right of appeal on this jail credit issue. N.C. Gen. Stat. § 15A-
1444(a1)–(a2). Thus, in addition to his written notice of appeal, he petitioned for a
writ of certiorari. See id. § 15A-1444(e); but see State v. Farris, 111 N.C. App. 254,
255, 431 S.E.2d 803, 804 (1993) (hearing defendant’s argument regarding jail credit
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STATE V. GALLOWAY
Opinion of the Court
on direct appeal even though the defendant pleaded guilty). Ultimately, as explained
below, we deny certiorari and dismiss Galloway’s appeal because, under our
precedent, direct appeal is not the appropriate vehicle to raise this issue and seek
judicial review.
Upon revoking probation and reactivating a criminal sentence, the trial court
must credit the sentence by the total amount of time the defendant spent in pretrial
confinement for the underlying charge. N.C. Gen. Stat. § 15-196.1. A defendant
seeking to obtain credit “in addition to that awarded at the time of . . . the revocation
of the defendant’s probation,” cannot raise the issue on direct appeal from the initial
judgment. State v. Cloer, 197 N.C. App. 716, 721, 678 S.E.2d 399, 403 (2009)
(emphasis added). Rather, the defendant must “initially present his or her claim for
additional credit to the trial court” by filing a request in that court for “credit not
previously allowed” pursuant to N.C. Gen. Stat. § 15-196.4. Id. Then, the defendant
may appeal the trial court’s decision to this Court.1 Id.Here, the relief Galloway seeks is the ability to return to the trial court to
litigate whether his “counsel was correct” and he “was entitled to 450 days of credit
. . . or 343 days of credit.” He acknowledges that the record is insufficient for this
1 Cloer left some ambiguity as to whether the trial court decision should be appealed through
a notice of appeal or through a petition for a writ of certiorari, so it is prudent for defendants to do
both. Cloer, 197 N.C. App. at 722, 678 S.E.2d at 403 n.2.
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STATE V. GALLOWAY
Opinion of the Court
Court to resolve the issue now and seeks only to build a record concerning the amount
of jail credit to which he is entitled.
As this Court explained in Cloer, the appropriate procedure to address this
issue is to first seek relief in the trial court under N.C. Gen. Stat. § 15-196.4. This
ensures that the defendant has an opportunity to build a record that will afford
meaningful appellate review of the issue. Accordingly, we dismiss Galloway’s appeal
but we do so without prejudice so that Galloway may, if he chooses, seek relief in the
trial court and then, if necessary, return to this Court with an appropriate record. Id.
at 722, 678 S.E.2d at 403–04.
Conclusion
We dismiss this appeal without prejudice.
DISMISSED WITHOUT PREJUDICE.
Judges MURPHY and COLLINS concur.
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