State v. MayoÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-331
Filed: 15 January 2019
Guilford County, No. 17CRS074729
STATE OF NORTH CAROLINA
v.
MICHAEL TYRONE MAYO, JR., Defendant.
Appeal by defendant from judgment entered 6 September 2017 by Judge
Michael D. Duncan in Guilford County Superior Court. Heard in the Court of Appeals
17 October 2018.
Attorney General Joshua H. Stein, by Associate Attorney General Cara Byrne,
for the State.
Warren D. Hynson for defendant-appellant.
BERGER, Judge.
On September 6, 2017, Michael Tyrone Mayo, Jr. (“Defendant”) pleaded guilty
to felony fleeing to elude arrest. Defendant was sentenced to an active term of seven
to eighteen months in prison. On September 14, 2017, Defendant filed a written
notice of appeal. Defendant filed a petition for writ of certiorari on May 2, 2018,
seeking appellate review on the entry of a civil judgment against him for attorney’s
fees, and review pursuant to Anders v. California, 386 U.S. 738 (1967) and State v.
Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). We grant Defendant’s petition for writ of
STATE V. MAYO
Opinion of the Court
certiorari, remand for hearing on the issue of attorney’s fees, and dismiss the
remainder of Defendant’s appeal.
Factual and Procedural Background
On June 26, 2017, Defendant was indicted for fleeing to elude arrest by motor
vehicle and for resisting a public officer. Defendant pleaded guilty to felony fleeing
to elude arrest on September 6, 2017. As part of the plea arrangement, other charges
were dismissed. Defendant stipulated to a prior record level of II, and he was
sentenced to an active term of seven to eighteen months imprisonment. He was also
ordered to pay court costs in the amount of $1,572.50. Defendant filed a notice of
appeal on September 14, 2017.
On May 2, 2018, Defendant filed a petition for writ of certiorari alleging
Defendant did not have proper notice and opportunity to be heard on the amount of
attorney’s fees and costs. In the same petition, Defendant argued in the alternative
that this Court conduct an independent review of the record pursuant to Anders v.
California and State v. Kinch. Defendant’s counsel also filed a brief with this Court
pursuant to Anders stating that he “has carefully reviewed the transcript, the
superior court file, and relevant law,” and was “unable to identify an issue with
sufficient merit to support a meaningful argument for reversal of [Defendant]’s
conviction.”
Analysis
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STATE V. MAYO
Opinion of the Court
“[A] defendant’s right to appeal in a criminal proceeding is purely a creation of
state statute.” State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002).
Section 15A-1444 of the North Carolina General Statutes provides that
(a1) A defendant who has been found guilty, or entered a
plea of guilty or no contest to a felony, is entitled to appeal
as a matter of right the issue of whether his or her sentence
is supported by evidence introduced at the trial and
sentencing hearing only if the minimum sentence of
imprisonment does not fall within the presumptive range
for the defendant’s prior record or conviction level and class
of offense. Otherwise, the defendant is not entitled to
appeal this issue as a matter of right but may petition the
appellate division for review of this issue by writ of
certiorari.
(a2) A defendant who has entered a plea of guilty or no
contest to a felony or misdemeanor in superior court is
entitled to appeal as a matter of right the issue of whether
the sentence imposed:
(1) Results from an incorrect finding of the
defendant’s prior record level under G.S. 15A-
1340.14 or the defendant’s prior conviction level
under G.S. 15A-1340.21;
(2) Contains a type of sentence disposition that is not
authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23
for the defendant’s class of offense and prior record
or conviction level; or
(3) Contains a term of imprisonment that is for a
duration not authorized by G.S. 15A-1340.17 or G.S.
15A-1340.23 for the defendant’s class of offense and
prior record or conviction level.
....
(e) Except as provided in subsections (a1) and (a2) of this
section and G.S. 15A-979, and except when a motion to
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STATE V. MAYO
Opinion of the Court
withdraw a plea of guilty or no contest has been denied, the
defendant is not entitled to appellate 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. If an
indigent defendant petitions the appellate division for a
writ of certiorari, the presiding superior court judge may in
his discretion order the preparation of the record and
transcript of the proceedings at the expense of the State.
N.C. Gen. Stat. § 15A-1444 (a1), (a2), (e) (2017).
Defendant’s right of appeal was limited to the grounds set forth in Section 15A-
1444. Because Defendant pleaded guilty, stipulated his prior record level was II, was
sentenced in the presumptive range, and never filed a motion to suppress pursuant
to N.C. Gen. Stat. § 15A-979, he has no right to appeal.
However, because Defendant filed a petition for writ of certiorari to conduct an
independent review of the record in accordance with Anders v. California and State
v. Kinch, “we will review 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 102-03, 331 S.E.2d at 667.
Further, “we must examine any issue that defendant could have possibly raised.”
State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 197 (1998).
Counsel for Defendant has been unable to identify any meritorious issue to
support a meaningful argument for reversal of Defendant’s conviction and asks that
this Court conduct its own review of the record for possible prejudicial error. Counsel
has shown to the satisfaction of this Court that he has complied with the
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STATE V. MAYO
Opinion of the Court
requirements of Anders v. California, and State v. Kinch, by advising Defendant of
his right to file written arguments with this Court and providing him with the
documents necessary to do so.
In his petition for writ of certiorari, Defendant contends that he did not receive
notice and an opportunity to be heard on the amount of attorney’s fees and costs.
After review, we agree.
A criminal defendant may file a petition for a writ of certiorari to appeal a civil
judgment for attorney’s fees and costs. State v. Friend, ___ N.C. App. ___, ___, 809
S.E.2d 902, 905 (2018). The trial court may enter a civil judgment against an indigent
defendant following his conviction in the amount of the fees incurred by the
defendant’s appointed trial counsel. N.C. Gen. Stat. § 7A-455(b) (2017). Before
entering monetary judgments against indigent defendants for fees imposed by their
court-appointed counsel,
trial courts should ask defendants—personally, not
through counsel—whether they wish to be heard on the
issue. Absent a colloquy directly with the defendant on this
issue, the requirements of notice and opportunity to be
heard will be satisfied only if there is other evidence in the
record demonstrating that the defendant received notice,
was aware of the opportunity to be heard on the issue, and
chose not to be heard.
Friend, ___ N.C. App. at ___, 809 S.E.2d at 907 (vacated defendant’s civil judgment
for attorneys’ fees and remanded for further proceedings on that issue).
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STATE V. MAYO
Opinion of the Court
In the present case, nothing in the record indicated that Defendant understood
he had a right to be heard on the issue of attorney’s fees, and the trial court did not
inform Defendant that he had a right to be heard on the issue. The record reflects
that the only mention of attorney’s fees took place when the trial court stated
“attorney’s fees will be reduced to a civil judgment.” Defendant was “not informed of
the total amount of attorney’s fees that would be imposed, nor given an opportunity
to personally address the court.” State v. Morgan, ___ N.C. App. ___, ___, 814 S.E.2d
843, 849 (2018) (vacating defendant’s civil judgment imposing costs and attorneys’
fees and remanded to the trial court). Accordingly, we vacate the civil judgment for
attorney’s fees and remand to the trial court for further proceedings on this issue
only.
Conclusion
We vacate the civil judgment entered against Defendant by the trial court and
remand for hearing on the issue of attorney’s fees. The remainder of Defendant’s
appeal is dismissed.
DISMISSED IN PART; VACATED IN PART AND REMANDED IN PART.
Judges STROUD and DILLON concur.
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