State v. Rogers

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-271
Filed: 7 November 2017
New Hanover County, Nos. 15 CRS 2897, 50660
STATE OF NORTH CAROLINA
v.
ISRAEL JOHN ROGERS
Appeal by defendant from judgments entered 22 September 2016 by Judge Jay
D. Hockenbury in New Hanover County Superior Court. Heard in the Court of
Appeals 5 September 2017.
Attorney General Joshua H. Stein, Assistant Attorney General Joseph L. Hyde,
for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant-appellant.
BRYANT, Judge.
Where no procedural mechanism exists under Rule 21 to issue the
discretionary writ of certiorari to review the trial court’s judgment entered upon
defendant’s guilty plea, we exercise our discretion to invoke Rule 2 to suspend the
rules and address the merits of defendant’s appeal. Assuming arguendo the trial
court erred in advising defendant that he had a right to appeal the court’s denial of
his pro se motion to dismiss, we hold defendant has failed to establish prejudicial
error.
STATE V. ROGERS
Opinion of the Court
On 2 January 2015 around 4:30 a.m., Blair Mincey observed defendant Israel
John Rogers and another person breaking into her Honda Accord and called the
Wilmington Police Department. An officer responded and observed defendant
breaking into another vehicle, a GMC Yukon. Defendant fled. After a short chase,
defendant was apprehended and placed under arrest.
Defendant was indicted for two counts of breaking or entering a motor vehicle,
one count of resisting a public officer, and for having attained habitual felon status.
Subsequently, defendant “was sent up to Butner for an evaluation to see if he was
competent to stand trial[.]” On 10 August 2016, the forensic psychiatrist who
examined defendant reported that he believed defendant to be capable of proceeding.
Defendant’s cases came on for trial during the 19 September 2016 session of
New Hanover County Superior Court, the Honorable Jay D. Hockenbury, Judge
presiding. Defendant asked his attorney to file a motion to dismiss for lack of subject
matter jurisdiction, but his attorney refused as she “felt the motions were frivolous
and without merit[.]”1 At defendant’s request, his attorney filed a motion to
withdraw.
1 Defendant’s jurisdictional argument appears to be based on defendant’s perceived status of
himself as a “sovereign citizen.” “[S]o-called ‘sovereign citizens’ are individuals who believe they are
not subject to courts’ jurisdiction[.] . . . [C]ourts repeatedly have been confronted with sovereign
citizens’ attempts to delay judicial proceedings, and summarily have rejected their legal theories as
frivolous.’ ” State v. Faulkner, ___ N.C. App. ___, ___, 792 S.E.2d 836, 842 (2016) (alterations in
original) (quoting United States v. Davis, 586 Fed. App’x 534, 537 (11th Cir. 2014)).
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Opinion of the Court
When defendant’s case was called, the court addressed defendant directly,
informing defendant that he would be permitted to file his motion to dismiss for lack
of jurisdiction and put it in the record. The court also advised defendant that his
attorney, as an officer of the court, believed his “motions [were] frivolous and it would
be a waste of the Court’s time for her to spend time to make a formal motion to dismiss
based on subject matter, or that the Court has no jurisdiction over [defendant], and
therefore, she is not going to file those motions.” The trial court advised defendant
he could give his attorney any documents that he wanted filed, and then denied
defense counsel’s motion to withdraw.
The trial court received four handwritten documents from defendant.
Defendant was allowed to “make any arguments that he want[ed] to make for the
record,” and defendant did so. The trial court declared the documents provided no
basis for dismissing the charges and denied defendant’s pro se motion to dismiss. The
State then offered a plea to defendant, which provided that he would plead guilty to
all the charges, the offenses would be consolidated for judgment, and a sentence of
twenty-three to forty months would be imposed.
After a break, defendant personally addressed the court again, stating he had
additional motions to make based on previously filed documents. Defendant said he
wanted to make an additional motion concerning the “legitimacy of the claims brung
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Opinion of the Court
[sic] against [him] before [he] could take the plea.” The trial court responded by
stating that
I made my ruling denying your motion to dismiss on those
two grounds [(lack of subject matter jurisdiction and lack
of in personam jurisdiction)]. So it’s all in the record, and
when this case is over with you have the right to appeal my
ruling, and this is part of the - - part of the file that I’m sure
will be looked at by someone as part of the appellate
process.
(Emphasis added). Thereafter, defendant chose to accept the State’s plea offer, and
the trial court proceeded to conduct a plea colloquy with defendant—who entered an
Alford plea—and to hear a factual basis for the plea from the State. The plea colloquy
included the following: “THE COURT: Do you understand following a plea of guilty
there are limitations on your right to appeal? DEFENDANT: Yes, Sir.” Then, the
trial court advised defendant of the maximum possible punishment—176 months
plus 60 days.
The trial court accepted defendant’s Alford plea and ordered it recorded,
finding that it was “the informed choice of the defendant, and the plea [was] made
freely, voluntarily, and understandingly.” The trial court sentenced defendant in
accordance with the terms of his plea. Thereafter, defendant purported to file written
notice of appeal on 28 September 2016. Subsequently, defendant filed a petition for
writ of certiorari to this Court on 15 May 2017, and the State filed a motion to dismiss
the appeal on 23 May 2017.
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STATE V. ROGERS
Opinion of the Court
Jurisdiction
As an initial matter, we must determine whether this appeal is properly before
this Court.
1. Appeal as of Right
The State has filed a motion to dismiss on the basis that, per state statute, a
defendant who pleads guilty generally does not have a right to appeal. N.C. Gen.
Stat. § 15A-1444(e) (2015); see State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d
867, 869 (2002) (noting that a criminal defendant’s right to appeal is purely a creation
of state statute). We agree.
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 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.
N.C.G.S. § 15A-1444(e) (emphasis added). Further, a defendant who pleads guilty
does not have a right to appeal whether the trial court erred in determining his guilty
plea was knowing and voluntary, State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d
459, 462 (1987); State v. Santos, 210 N.C. App. 448, 450, 708 S.E.2d 208, 210 (2011),
nor does he have a right to appeal whether the trial court erred in denying his motion
to dismiss, State v. Shepley, 237 N.C. App. 174, 177, 764 S.E.2d 658, 660 (2014).
Defendant concedes that he is not entitled to an appeal as of right, acknowledging
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Opinion of the Court
that “[a]ppellate review is contingent upon this Court granting [his] petition for writ
of certiorari as to one, or both, of these issues.” Thus, defendant’s appeal is subject
to dismissal. See State v. Demaio, 216 N.C. App. 558, 561, 716 S.E.2d 863, 865 (2011)
(“A ‘defendant is not entitled as a matter of right to appellate review of his contention
that the trial court improperly accepted his guilty plea.’ ” (emphasis added) (quoting
Bolinger, 320 N.C. at 601, 359 S.E.2d at 462).
2. Petition for Writ of Certiorari
Defendant, however, has filed a petition for writ of certiorari. Pursuant to Rule
21 of the North Carolina Rules of Appellate Procedure, this Court may, in its
discretion, issue a writ of certiorari if one of the following circumstances applies:
“when the right to prosecute an appeal has been lost by failure to take timely action,
or when no right of appeal from an interlocutory order exists, or for review pursuant
to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court ruling on a motion for
appropriate relief.” N.C. R. App. P. 21(a)(1) (2017). “A petition for the writ must
show merit or that error was probably committed below.” State v. Rouson, 226 N.C.
App. 562, 563–64, 741 S.E.2d 470, 471 (2013) (quoting State v. Grundler, 251 N.C.
177, 189, 111 S.E.2d 1, 9 (1959)) (denying the defendant’s petition for writ of certiorari
where the defendant failed to bring forth a meritorious argument or reveal error in
the trial court’s denial of his motion to suppress and in the acceptance of his guilty
pleas).
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Opinion of the Court
“[O]ur Supreme Court has held that when a trial court improperly accepts a
guilty plea, the defendant ‘may obtain appellate review of this issue only upon grant
of a writ of certiorari.’ ” Demaio, 216 N.C. App. at 562, 716 S.E.2d at 866 (citation
omitted) (quoting Bolinger, 320 N.C. at 601, 359 S.E.2d at 462). The State, in
response to defendant’s petition, argues that the writ should not issue in this case;
the State asserts that, even assuming the trial court erred in advising defendant he
could appeal the denial of his motion to dismiss, defendant has failed to show how his
decision to plead guilty was based on this advice, or that it otherwise invalidated his
plea where defendant averred that he entered the plea of his own free will, fully
understanding what he was doing. The State nevertheless acknowledges that Rule
21 does not restrict this Court’s jurisdiction to review a trial court’s judgment or order
by certiorari. See State v. Stubbs, 368 N.C. 40, 44, 770 S.E.2d 74, 76 (2015) (“[W]hile
Rule 21 might appear at first glance to limit the jurisdiction of the Court of Appeals,
the Rules cannot take away jurisdiction given to that court by the General Assembly
in accordance with the North Carolina Constitution.”).
Indeed, although recent Supreme Court decisions demonstrate that this Court
has jurisdiction to grant certiorari on grounds not explicitly set forth in Rule 21, see,
e.g., State v. Thomsen, 369 N.C. 22, 26–27, 789 S.E.2d 639, 642–43 (2016); Stubbs,
368 N.C. at 43–44, 770 S.E.2d at 76, this Court’s jurisprudence is far from clear in
terms of whether this Court has the authority to grant certiorari to consider the
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Opinion of the Court
validity of guilty pleas. See State v. Biddix, ___ N.C. App. ___, ___, 780 S.E.2d 863,
866–67 (2015) (discussing Appellate Rule 21).
In State v. Ledbetter (Ledbetter III), ___ N.C. App. ___, 794 S.E.2d 551 (per
curiam), stay granted, ___ N.C. ___, 794 S.E.2d 527 (2016), this Court, on remand
from the Supreme Court of North Carolina, was tasked with reconsidering this
Court’s earlier dismissal of the defendant’s appeal, see State v. Ledbetter (Ledbetter
I), ___ N.C. App. ___, 779 S.E.2d 164 (2015), rev. allowed and remanded by 369 N.C.
79, 793 S.E.2d 216 (Ledbetter II)—in light of Stubbs and Thomsen (which both
addressed “the appellate courts’ jurisdiction to issue the writ of certiorari upon the
State’s petition, where statutorily authorized, after the trial court granted both
defendants’ MAR[,]” Ledbetter III, ___ N.C. App. at ___, 794 S.E.2d at 554)—in order
to review the defendant’s petition for writ of certiorari seeking review of her motion
to dismiss, made prior to entry of her guilty plea to DWI, see Ledbetter III, ___ N.C.
App. at ___, 794 S.E.2d at 553. In so doing, this Court in Ledbetter III framed the
issue and concluded as follows:
The issue in the present case does not pertain to the
existence of appellate jurisdiction under the statutes.
Rather, the issue pertains to the “govern[ing] procedure”
and processes available to properly exercise our
jurisdiction and guide our discretion of whether to issue a
writ of certiorari, following a defendant’s guilty plea. N.C.
Rule App. P. Rule 1(b) (2016). Defendant’s petition,
purportedly under N.C. Gen. Stat. § 15A-1444(e), does not
invoke any of the three grounds set forth in Appellate Rule
21 to guide this Court’s discretion to issue the writ under
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Opinion of the Court
this Rule to review her guilty plea.
We are without a procedural basis to do so, without
invoking Rule 2 to suspend the Rules. . . .
....
Under the current language of Appellate Rule 21, no
procedural mechanism exists under that Rule to issue the
discretionary writ of certiorari to review the trial court’s
judgment entered upon Defendant’s guilty plea under N.C.
Gen. Stat. § 15A-1444(e), without further exercising our
discretion to invoke Rule 2 to suspend the Rules. . . .
....
This Court’s jurisdiction to hear and consider issues
raised by a party is often broader, but not necessarily
synonymous, with the procedural framework under our
appellate rules. The appellate rules are replete with
circumstances in which this Court possesses jurisdiction,
but the rules procedurally do not allow appellate review
without invoking Rule 2. . . .
....
Although the statute provides jurisdiction, this Court is
without a procedural process under either Rule 1 or 21 to
issue the discretionary writ under these facts, other than
by invoking Rule 2.
In the further exercise of our discretion under the
facts before us, we decline to invoke Rule 2 to suspend the
requirements of the appellate rules to issue the writ of
certiorari.
Id. at ___, 794 S.E.2d at 554–55 (citations omitted); see State v. Perry, No. COA16-
862, 2017 WL 1650125, **2–3 (N.C. Ct. App. May 2, 2017) (unpublished) (relying on
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Opinion of the Court
Ledbetter III, invoking Rule 2 in order to review the defendant’s argument that the
trial court erred in accepting his guilty plea because it failed to inform him of the
minimum sentence of his convictions, and finding that the defendant failed to
establish that his guilty plea was accepted in violation of statute or that he was
prejudiced thereby). But see State v. Jones, ___ N.C. App. ___, ___, 802 S.E.2d 518,
523 (2017) (“We have examined both Biddix and Ledbetter and conclude that these
cases fail to follow the binding precedent established by Stubbs, and as a result, do
not control the outcome in the present case. In this case, as in Stubbs, although
defendant has a statutory right to apply for a writ of certiorari to obtain review of his
sentence, Appellate Rule 21 does not include this circumstance [(defendant’s appeal
of the sentencing proceeding conducted upon his entry of a guilty plea)] among its
enumerated bases for issuance of the writ. We find the present case to be functionally
and analytically indistinguishable from that of Stubbs and hold that, pursuant to the
opinion of our Supreme Court in Stubbs, this Court has jurisdiction to grant
defendant’s petition for a writ of certiorari. In the exercise of our discretion, we choose
to grant [the defendant’s] petition.”).
Notably, while the facts in the instant case seem to more closely parallel those
at issue in Ledbetter—a motion to dismiss is denied, the defendant enters a guilty
plea, the defendant appeals and files a petition for writ of certiorari for review of the
trial court’s denial of the motion to dismiss—Ledbetter did not contend with (and
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Opinion of the Court
neither did Jones, for that matter) the additional wrinkle in the analysis facing this
Court in the instant case—defendant’s argument that his guilty plea is invalid based
on the trial court’s assurance that defendant could appeal its denial of his motion to
dismiss.
There appear to be three alternatives available to this Court in order to
satisfactorily address the issues currently before us: (1) follow the reasoning in Jones,
which in turn relies on the reasoning in Stubbs, and grant defendant’s petition for
writ of certiorari; (2) follow the reasoning in Ledbetter, deny defendant’s petition for
writ of certiorari, and decline to invoke Rule 2; or (3) follow the reasoning in Ledbetter,
but invoke Rule 2 to review the validity of defendant’s guilty plea. Complicating the
matter is the fact that our appellate courts have also held that when a trial court
improperly accepts a guilty plea, the defendant “may obtain appellate review of this
issue only upon grant of a writ of certiorari[,]” see Demaio, 216 N.C. App. at 562, 716
S.E.2d at 866 (citation omitted) (quoting Bolinger, 320 N.C. at 601, 359 S.E.2d at
462), and neither Stubbs, Ledbetter, nor Jones addresses this precise and narrow
issue in discussing Appellate Rule 21. Additionally, the general rule that we are
bound by the prior opinions of this Court which have decided the “same issue,” see In
re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), is not helpful in the
instant case where Jones dismissed Ledbetter III (and Biddix) as they “fail[ed] to
follow the binding precedent established by Stubbs,” a North Carolina Supreme Court
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Opinion of the Court
case, and, as a result, this Court in Jones concluded those cases did not control. ___
N.C. App. at ___, 802 S.E.2d at 523.
However, where the facts in Ledbetter are arguably more analogous (and
applicable) to those in the instant case, compare Ledbetter III, ___ N.C. App. at ___,
794 S.E.2d at 553 (involving the defendant’s attempt to appeal the denial of a motion
to dismiss followed by entry of a guilty plea), with Jones, ___ N.C. App. at ___, 802
S.E.2d at 520 (involving the “defendant’s right to seek the issuance of a writ of
certiorari in order to obtain appellate review of the sentencing proceeding conducted
upon his entry of a plea of guilty” (emphasis added)), we conclude that no procedural
mechanism exists under Rule 21 to issue the discretionary writ of certiorari to review
the trial court’s judgment entered upon defendant’s guilty plea, but also exercise our
discretion to invoke Rule 2 to suspend the Rules and address the merits of defendant’s
appeal. N.C. R. App. P. 2 (2017) (“To prevent manifest injustice to a party, or to
expedite decision in the public interest, either court of the appellate division may . .
. 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 . . . .”); see
Ledbetter III, ___ N.C. App. at ___, 794 S.E.2d at 555 (citations omitted); see also
Perry, 2017 WL 1650125, at *2.
Ordinarily, this Court invokes Rule 2 “[t]o prevent manifest injustice,” see N.C.
R. App. P. 2 (2017); here, we invoke Rule 2 to “expedite decision in the public interest,”
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Opinion of the Court
that is, to reach the merits in order to caution the trial court as it advises litigants—
especially pro se litigants or litigants submitting pro se filings—on their right to
appeal, to make sure no plea is entered with the expectation of a right to appeal where
no right exists.
_________________________________________________________
Defendant contends his Alford plea was not entered voluntarily or intelligently
because the trial court erroneously advised him that he had the right to appeal the
court’s denial of his pro se motion to dismiss. Assuming arguendo the trial court
erred, we find this error harmless for the reasons stated herein.
Pursuant to N.C. Gen. Stat. § 15A-1022, “a superior court judge may not accept
a plea of guilty or no contest from [a] defendant without first addressing him
personally and[,]” among other things “[d]etermining that he understands the nature
of the charge” and “[i]nforming him of the maximum possible sentence on the charge
for the class of offense for which the defendant is being sentenced . . . .” Id. § 15A-
1022(a)(2), (6) (2015). The guilty plea must be “entered by one fully aware of the
direct consequences, including the actual value of any commitments made to him by
the court.” State v. Smith, 352 N.C. 531, 550–51, 532 S.E.2d 773, 786 (2000) (quoting
Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 760 (1960)).
In the instant case, defendant agreed to plead guilty pursuant to the plea
agreement, the trial court advised him of the maximum possible punishment, see
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Opinion of the Court
N.C.G.S. § 15A-1022(a)(6), and defendant averred that he entered the plea of his own
free will, see id. at § 15A-1022(a)(2). It is also true that the trial court told defendant
that he would have the right to appeal the ruling denying his pro se motion to dismiss.
However, the trial court also advised defendant—and defendant indicated he
understood—that pleading guilty would place limitations on his right to appeal,
contradicting its earlier statement that defendant would “have the right to appeal
[the trial court’s] ruling.”
Accordingly, we agree with defendant that the trial court erroneously advised
him that he had the right to appeal the denial of his pro se motion to dismiss after
entering an Alford plea. However, having granted review of this issue pursuant to
Rule 2, we hold that any error by the trial court is harmless.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
Questions of subject matter jurisdiction are reviewed de novo. Harris v. Matthews,
361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007).
“Subject-matter jurisdiction ‘involves the authority of a court to adjudicate the
type of controversy presented by the action before it.’ ” McKoy v. McKoy, 202 N.C.
App. 509, 511, 689 S.E.2d 590, 592 (2010) (quoting Haker-Volkening v. Haker, 143
N.C. App. 688, 693, 547 S.E.2d 127, 130 (2001)). “Subject-matter jurisdiction derives
from the law that organizes a court and cannot be conferred on a court by action of
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Opinion of the Court
the parties or assumed by a court except as provided by that law.” Id. (citation
omitted).
“The superior court has exclusive, original jurisdiction over all criminal actions
not assigned to the district court division by this Article . . . .” N.C. Gen. Stat. § 7A-
271 (2015) (emphasis added). “In criminal cases, a valid indictment gives the trial
court its subject matter jurisdiction over the case.” In re M.S., 199 N.C. App. 260,
262 n.2, 681 S.E.2d 441, 443 n.2 (citing In re Griffin, 162 N.C. App. 487, 493, 592
S.E.2d 12, 16 (2004)).
On his motion to dismiss for lack of subject matter jurisdiction and lack of
personal jurisdiction, defendant made the following argument, in pertinent part:
The reason why I say they have lack of jurisdiction, because
at the time I was born, I was born a natural -- a natural
born American sovereign citizen. All right? I never
contracted at the time of birth with a birth certificate or
Social Security number.
....
. . . I am convinced that they have lack of jurisdiction, I
never contracted with the U.S. I never had anything in my
name. The United States is a corporation. All right. The
United States do not own me. They did not make me. I was
birthed by my mother, who mated with my father. . . .
....
And the reason why I say lack of jurisdiction is that
common use of this term “persons” does not include the
sovereign and statute employed with ordinary not be
construed with do so. Title 1, United States Code, Section
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Opinion of the Court
1, Note 12, United States v. United Mine Workers on 330
U.S. 258, apostrophe, 91 L.Ed 884. They said this is a form
of diplomatic immunity. While you are not excused for the
consequences of any legitimate crimes when you may . . . .
....
. . . -- legitimate crimes when you may commit against real
parties and which you call (unintelligible) to another
citizen as a sovereign, you cannot be forced to comply with
arbitrary administrative regulations imposed by Congress
on federal citizens. All right.
....
Then once the prosecutors can prove that I
contracted with the State willingly and intelligently, with
full disclosure of the facts, then we can move on to the next
step, talking about the charges brung [sic] against the
persons. . . .
THE COURT: All right. For those reasons you don’t feel
that the State of North Carolina has jurisdiction over you
to try the case; is that right, Mr. Rogers?
THE DEFENDANT: Yes, sir[.]
Defendant’s argument failed to present a coherent, legally recognized
challenge to the trial court’s jurisdiction. For example, defendant did not challenge
the validity of the indictments in the instant case, which, if defective or invalid, would
deprive the trial court of jurisdiction to enter judgment. See In re M.S., 199 N.C. App.
at 262 n.2, 681 S.E.2d at 443 n.2 (“[A] facially invalid indictment deprives the trial
court of jurisdiction to enter judgment in a criminal case.” (quoting State v. McKoy,
196 N.C. App. 650, 654, 675 S.E.2d 406, 410 (2009))). Here, defendant presents no
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Opinion of the Court
argument that negates the authority of the trial court to exercise personal and subject
matter jurisdiction over defendant in the instant case. Defendant’s argument is
overruled.
NO PREJUDICIAL ERROR.
Judges DAVIS and INMAN concur.
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