               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA19-777

                                 Filed: 7 April 2020

Wake County, No. 15 CR 1985

STATE OF NORTH CAROLINA

              v.

ROGELIO ALBINO DIAZ-TOMAS, Defendant.


        Appeal by defendant from order entered 24 July 2019 by Judge Paul C.

Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 22 January

2020.


        Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
        Hyde, for the State.

        Law Offices of Anton M. Lebedev, by Anton M. Lebedev, for defendant-
        appellant.


        YOUNG, Judge.


        Where defendant failed to demonstrate that the Superior Court abused its

discretion in denying his petition for certiorari, we affirm that decision. Where the

District Court’s denial of defendant’s motion to reinstate charges is not properly

before us, we dismiss such argument.      Where mandamus is not an appropriate

remedy, we deny defendant’s petitions for writ of mandamus. Where defendant

requests that we take judicial notice of local rules, but declines to show for what
                                 STATE V. DIAZ-TOMAS

                                   Opinion of the Court



purpose we must do so, we deny defendant’s motion to take judicial notice. We affirm

in part and dismiss in part.

                         I. Factual and Procedural Background

         On 5 April 2015, Rogelio Albino Diaz-Tomas (defendant) was cited for driving

while impaired and without an operator’s license. Defendant was told to appear in

Wake County District Court for a hearing on the citation. On 25 February 2016, the

Wake County District Court issued an order for arrest due to defendant’s failure to

appear. On 11 July 2016, the State entered a dismissal with leave of the charges.

         On 24 July 2018, defendant was arrested and ordered to appear.        On 13

November 2018, the court issued another order for defendant’s arrest due to his

failure to appear. On 12 December 2018, he was again arrested and ordered to

appear.

         On 28 January 2019, defendant filed a motion in Wake County District Court

to reinstate the charges that the State had previously dismissed with leave.

Defendant sought a writ of mandamus from the North Carolina Supreme Court,

which the Court denied on 26 February 2019. On 15 June 2019, the Wake County

District Court denied defendant’s motion to reinstate the charges, holding that the

State acted within its discretion and statutory authority by entering a dismissal with

leave.




                                          -2-
                                 STATE V. DIAZ-TOMAS

                                   Opinion of the Court



      On 22 July 2019, defendant filed a petition for writ of certiorari in Wake

County Superior Court, seeking review of the District Court’s denial of his motion to

reinstate the charges. On 24 July 2019, the Superior Court, in its discretion, denied

and dismissed defendant’s petition for writ of certiorari.

      Defendant filed a petition for writ of certiorari to this Court. On 15 August

2019, this Court granted defendant’s petition for the purpose of reviewing the order

of the Superior Court denying defendant’s petition for certiorari filed in that court.

                               II. Preliminary Motions

      In addition to his arguments on appeal, defendant has filed two petitions for

writ of mandamus and one motion to take judicial notice. For the following reasons,

we deny all three.

      With respect to his petitions for writ of mandamus, defendant seeks a writ

compelling the District Court to grant his motion to reinstate the charges. In essence,

he seeks to attack the District Court’s denial of his motion collaterally, rather than

on appeal, by requesting that we compel the District Court to reverse itself.

      However, “[a]n action for mandamus may not be used as a substitute for an

appeal.” Snow v. N.C. Bd. of Architecture, 273 N.C. 559, 570, 160 S.E.2d 719, 727

(1968). Our Supreme Court has held that “mandamus is not a proper instrument to

review or reverse an administrative board which has taken final action on a matter

within its jurisdiction.” Warren v. Maxwell, 223 N.C. 604, 608, 27 S.E.2d 721, 724



                                          -3-
                                STATE V. DIAZ-TOMAS

                                  Opinion of the Court



(1943). Rather, if statute provides no right of appeal, “the proper method of review is

by certiorari.” Id. As such, defendant’s petitions – seeking to reverse the decision of

the District Court – are not properly remedied by mandamus, but by appeal or

certiorari, the latter of which defendant in fact pursued in Superior Court.

      Moreover, even if mandamus offered an appropriate remedy, this Court would

not be the appropriate venue. “Applications for the writ[] of mandamus . . . shall be

made by filing a petition therefor with the clerk of the court to which appeal of right

might lie from a final judgment entered in the cause[.]” N.C.R. App. P. 22(a). From

a final judgment entered in Wake County District Court, appeal of right lies to Wake

County Superior Court. See N.C. Gen. Stat. § 7A-271(b) (2019). As such, a petition

for writ of mandamus would properly have been filed with the Superior Court, not

with this Court.    For these reasons, we deny defendant’s petitions for writ of

mandamus.

      With respect to defendant’s motion to take judicial notice, defendant requests

that this Court take judicial notice of the Wake County Local Judicial Rules. While

defendant is correct that these rules are of a sort of which this Court may properly

take judicial notice, defendant offers no reason for us to do so. His argument does not

rely upon nor cite to these Rules. Nor need we rely upon them for our reasoning, as

shown below. As such, we decline to take judicial notice of the Wake County Local

Judicial Rules, and deny this motion as well.



                                         -4-
                                 STATE V. DIAZ-TOMAS

                                   Opinion of the Court



                              III. Petition for Certiorari

      In his second argument on appeal, which we address first, defendant contends

that the Superior Court erred in denying his petition for certiorari. We disagree.

                                A. Standard of Review

      “The authority of a superior court to grant the writ of certiorari in appropriate

cases is . . . analogous to the Court of Appeals’ power to issue a writ of certiorari[.]”

State v. Hamrick, 110 N.C. App. 60, 65, 428 S.E.2d 830, 832-33 (1993). “Certiorari is

a discretionary writ, to be issued only for good or sufficient cause shown, and it is not

one to which the moving party is entitled as a matter of right.” Womble v. Moncure

Mill & Gin Co., 194 N.C. 577, 579, 140 S.E. 230, 231 (1927). “[I]n our review of the

superior court’s grant or denial of certiorari to an inferior tribunal, we determine only

whether the superior court abused its discretion. We do not address the merits of the

petition to the superior court in the instant case.” N.C. Cent. Univ. v. Taylor, 122

N.C. App. 609, 612, 471 S.E.2d 115, 117 (1996), aff’d per curiam, 345 N.C. 630, 481

S.E.2d 83 (1997).

      “Abuse of discretion results where the court’s ruling is manifestly unsupported

by reason or is so arbitrary that it could not have been the result of a reasoned

decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

                                      B. Analysis




                                          -5-
                                 STATE V. DIAZ-TOMAS

                                   Opinion of the Court



       Defendant, in his brief, concedes that the decision whether to grant certiorari

is discretionary.    He argues, nonetheless, that “just because certiorari is a

discretionary writ does not mean that the Superior Court can deny the writ for any

reason.”

       While defendant is certainly correct in essence – the discretion of a trial court

is not blanket authority, and must have some basis in reason – his argument goes too

far afield. Defendant proceeds to argue, in essence, that the trial court abused its

discretion in denying the writ because he was entitled to it. Defendant argues, for

example, that he demonstrated “appropriate circumstances” for the issuance of a writ

“to review this compelling interlocutory issue[;]” that the court should have allowed

the petition due to its potential influence on the outcome of other Wake County cases;

and ultimately that the Superior Court apparently had an obligation to grant

certiorari.

       These arguments must fail. The Superior Court is under no obligation to grant

certiorari. While certainly it must have some reason for denying the writ, that does

not equate to an affirmative duty to grant it. Even assuming arguendo that the

District Court’s denial of defendant’s motion to reinstate the charges was erroneous,

the Superior Court was not obligated to grant certiorari to review it. The result would

be unfortunate, but such is the case with discretionary writs. They are, by nature,

discretionary.



                                          -6-
                                 STATE V. DIAZ-TOMAS

                                   Opinion of the Court



      On appeal, defendant bears the burden of showing that the decision of the

Superior Court in denying his petition for certiorari was “manifestly unsupported by

reason or is so arbitrary that it could not have been the result of a reasoned decision.”

Hennis, 323 N.C. at 285, 372 S.E.2d at 527. It is not enough that he disagree with it,

or argue – incorrectly – that the trial court was obligated to grant his petition.

Defendant has to show that the Superior Court’s decision was unsupported by reason

or otherwise entirely arbitrary. We hold that he has failed to do so. Accordingly, we

hold that the trial court did not err in denying defendant’s petition for certiorari.

                           IV. Motion to Reinstate Charges

      Defendant also contends on appeal that the District Court erred in denying his

motion to reinstate charges. However, as we have held, the Superior Court did not

err in denying his petition for certiorari. Additionally, we note that this Court

granted certiorari solely for the purpose of reviewing the Superior Court’s denial of

certiorari, not for the purpose of reviewing the District Court’s denial of the motion

to reinstate charges. Indeed, on review of an appeal from the superior court’s denial

of certiorari, “[w]e do not address the merits of the petition[,]” which in the instant

case would be whether the District Court erred in denying the motion to reinstate the

charges. N.C. Cent. Univ., 122 N.C. App. at 612, 471 S.E.2d at 117. As such, this

argument is not properly before us, and is moot. We therefore decline to address it,

and dismiss it.



                                          -7-
                        STATE V. DIAZ-TOMAS

                         Opinion of the Court



AFFIRMED IN PART, DISMISSED IN PART.

Judge BERGER concurs.

Judge ZACHARY concurs in part and dissents in part by separate opinion.




                                -8-
 No. COA19-777 – State v. Diaz-Tomas


      ZACHARY, Judge, concurring in part, dissenting in part.


      I concur with the conclusion reached in Section IV of the majority’s opinion

regarding Defendant’s arguments concerning the district court’s “Order Denying

Defendant’s Motion to Reinstate Charges.” As the majority explains, that order is

not before this Court. We allowed Defendant’s petition for writ of certiorari for the

limited purpose of reviewing the superior court’s “Order Denying Petition for Writ of

Certiorari.” Majority at 7. Accordingly, we lack jurisdiction over the district court’s

order, and Defendant’s challenge thereto is improper.

      As discussed below, I also agree with the majority that mandamus is an

improper remedy to redress the errors alleged in this matter, although I reach this

result for different reasons than the majority. However, I respectfully dissent from

the remainder of the majority’s opinion.

      First, I would allow Defendant’s “Motion to Take Judicial Notice of Current

Local Rules.” While noting that the Wake County Local Judicial Rules are indeed “of

a sort of which this Court may properly take judicial notice,” the majority

nevertheless denies Defendant’s motion on the grounds that he “offers no reason for

us to do so. His argument does not rely upon nor cite to these Rules. Nor need we

rely upon them for our reasoning . . . .” Id. at 4. I respectfully disagree. Defendant

asserts in his motion that “[t]he local rules are inconsistent with the District Court’s
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



actions in this instant case.” Furthermore, it is manifest that in order to conduct a

full and thorough appellate review of the superior court’s order—as is our mandate

in this appeal, pursuant to our Court’s 15 August 2019 order allowing Defendant’s

petition for writ of certiorari—we must necessarily review the allegations of

Defendant’s underlying petition.

      Moreover, as explained below, I cannot agree with the majority’s analysis

regarding the superior court’s denial of Defendant’s petition for writ of certiorari. For

these reasons, I respectfully concur in part, and dissent in part, from the majority’s

opinion.

                             Facts and Procedural History

      On 4 April 2015, Defendant was charged by criminal citation with driving

while impaired, in violation of N.C. Gen. Stat. § 20-138.1 (2019), and driving without

an operator’s license, in violation of N.C. Gen. Stat. § 20-7(a). After Defendant failed

to appear in Wake County District Court on 24 February 2016, the district court

issued an order for his arrest. On 11 July 2016, the Wake County District Attorney’s

Office dismissed Defendant’s charges with leave, due to his “fail[ure] to appear for a

criminal proceeding at which [his] attendance was required and” upon the

prosecutor’s belief that he could not “readily be found.” Defendant’s driving privilege

was also revoked as a result of his failure to appear.




                                              2
                                   STATE V. DIAZ-TOMAS

                       Zachary, J., concurring in part, dissenting in part



      In July 2018, Defendant was arrested on the February 2016 order for his

arrest; but after he again failed to appear for his 9 November 2018 court date, the

district court issued another order for his arrest. Defendant was arrested on 12

December 2018, and he was ordered to appear in Wake County District Court at 2:00

p.m. on 18 January 2019. However, Defendant’s case was subsequently scheduled as

an “add-on case” during the 14 December 2018 Criminal Administrative Driving

While Impaired Session of Wake County District Court.                        Upon Defendant’s

appearance on 14 December 2018, the assistant district attorney declined to reinstate

Defendant’s charges.

      According to Defendant, his scheduled “18 January 2019 Criminal District

Court date never took place.” Accordingly, on 28 January 2019, Defendant filed a

“Motion to Reinstate Charges” in Wake County District Court, alleging, inter alia,

that “[t]he State will not reinstate . . . Defendant’s criminal charges unless [he] enters

a guilty plea to the DWI charge and waives his right to appeal[.]” On 15 July 2019,

the district court entered its Order Denying Defendant’s Motion to Reinstate

Charges.

      On 22 July 2019, Defendant petitioned the Wake County Superior Court to

issue its writ of certiorari, seeking reversal of the district court’s order and

reinstatement of Defendant’s criminal charges.             The superior court “denied and

dismissed” Defendant’s petition for writ of certiorari by order entered 24 July 2019.



                                               3
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



The superior court determined that Defendant “failed to provide ‘sufficient cause’ to

support the granting of his Petition” and “is not entitled to the relief requested[.]”

       Defendant subsequently filed a petition for writ of certiorari with this Court.

By order entered 15 August 2019, we allowed Defendant’s petition “for purposes of

reviewing the order entered by [the superior court] on 24 July 2019.”

                                        Discussion

       As explained below, I concur in the denial of Defendant’s (1) “Alternative

Petition for Writ of Mandamus,” and (2) “Second Alternative Petition for Writ of

Mandamus,” directed to the Wake County District Attorney and the Wake County

District Court, respectively. However, I respectfully dissent from the majority’s

decision regarding the superior court’s denial of Defendant’s petition for writ of

certiorari.

       A. Mandamus

       “Mandamus translates literally as ‘We command.’ ” In re T.H.T., 362 N.C. 446,

453, 665 S.E.2d 54, 59 (2008) (citation omitted). A writ of mandamus is, thus, an

“extraordinary” court order issued “to a board, corporation, inferior court, officer or

person commanding the performance of a specified official duty imposed by law.” Id.

(citation and quotation marks omitted). Courts of the appellate division—that is, this

Court and our Supreme Court—“may issue writs of mandamus ‘to supervise and

control the proceedings’ of the” trial courts, but may only do so “to enforce established



                                              4
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



rights, not to create new rights.” Id. (quoting N.C. Gen. Stat. § 7A-32(b), (c) (2007))

(additional citation omitted). A number of requirements must be satisfied before a

writ of mandamus may issue, see id., but for our purposes, it is sufficient to note that

“the party seeking relief must demonstrate a clear legal right to the act requested”;

“the defendant must have a legal duty to perform the act requested”; and “the duty

must be clear and not reasonably debatable.” Id. at 453-54, 665 S.E.2d at 59 (citation

omitted).

      Here, Defendant filed two separate petitions for the writ of mandamus,

requesting that this Court (1) “compel the Wake County District Attorney to promptly

reinstate or dismiss his charges”; and (2) “compel the Wake County District Court to

schedule Defendant a trial or hearing within a reasonable time.” Contrary to the

majority’s determination, Defendant’s petitions are properly addressed to this Court,

not the superior court. See In re Redwine, 312 N.C. 482, 484, 322 S.E.2d 769, 770

(1984) (“The superior court judge misconstrued his authority to issue the writ of

mandamus to a judge of the General Court of Justice. A judge of the superior court

has no authority or jurisdiction to issue a writ of mandamus . . . to a district court

judge.”). Consequently, if mandamus were the appropriate remedy in this case, it

would be error for our Court to deny Defendant’s petitions on that basis.

      Nevertheless, as the majority correctly concludes, albeit for different reasons

than I, mandamus is not the proper remedy here. Defendant fails to “demonstrate a



                                              5
                                   STATE V. DIAZ-TOMAS

                       Zachary, J., concurring in part, dissenting in part



clear legal right to the act[s] requested.” In re T.H.T., 362 N.C. at 453, 665 S.E.2d at

59; see also N.C. Gen. Stat. § 20-38.6(a) (setting forth the limited motions and

procedures available for defense of implied-consent offenses in the district courts).

       Nor can it be said that the Wake County District Attorney has a “clear and not

reasonably debatable” legal duty to reinstate Defendant’s criminal charges under

these circumstances. In re T.H.T., 362 N.C. at 453-54, 665 S.E.2d at 59. Indeed, the

statutes governing the dismissal of criminal charges in implied-consent cases—and

the rights of defendants whose failure to appear triggers dismissal—are anything but

clear. Compare N.C. Gen. Stat. § 15A-932(a)(2) (providing that a “prosecutor may

enter a dismissal with leave for nonappearance when a defendant . . . [f]ails to appear

at a criminal proceeding at which his attendance is required, and the prosecutor

believes the defendant cannot be readily found”), with id. § 20-24.1(a), (b1) (providing

that although the DMV “must revoke the driver’s license of a person upon receipt of

notice from a court that the person was charged with a motor vehicle offense and he

. . . failed to appear, after being notified to do so, when the case was called for a trial

or hearing[,]” the defendant nevertheless “must be afforded an opportunity for a trial

or a hearing within a reasonable time of the defendant’s appearance” (emphases

added)).

       As these convoluted and often contradictory statutes illustrate, implied-

consent law is rarely clear. For our purposes, however, it is sufficient to note that



                                               6
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



Defendant has failed to demonstrate a clear legal right to the acts he seeks to

compel—i.e., the Wake County District Attorney’s reinstatement of his criminal

charges, followed by a trial or hearing in Wake County District Court—as this

determination is fatal to his petitions for the writ of mandamus.

      Accordingly, I concur in the majority’s denial of Defendant’s (1) Alternative

Petition for Writ of Mandamus, and (2) Second Alternative Petition for Writ of

Mandamus.

      B. Certiorari

      Contrary to the majority, I conclude that Defendant has met his burden of

showing that the superior court abused its discretion by denying his petition for writ

of certiorari. For the reasons set forth below, I would reverse the superior court’s

order denying Defendant’s petition for writ of certiorari and remand for a hearing

and decision on the merits.

                                The Nature of Certiorari

      It is well settled that “[a]ppeals in criminal cases are controlled by the statutes

on the subject.” State v. King, 222 N.C. 137, 140, 22 S.E.2d 241, 242 (1942) (citation

omitted). Our statutes, however, do not provide for appeal from the district court’s

denial of a defendant’s motion to reinstate criminal charges. Nevertheless, in such

instances, “the defendant is not without a remedy. The remedy, retained by statute,

approved by the court and generally pursued, is certiorari to be obtained from the



                                              7
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



Superior Court upon proper showing aptly made.” Id. at 140, 22 S.E.2d at 243

(citations omitted); see also N.C. Gen. Stat. § 1-269 (“Writs of certiorari, recordari,

and supersedeas are authorized as heretofore in use.”).

      The superior court has jurisdiction to issue a writ of certiorari to review district

court proceedings pursuant to Rule 19 of the General Rules of Practice for the

Superior and District Courts. Rule 19 provides, in pertinent part: “In proper cases

and in like manner, the court may grant the writ of certiorari. When a diminution of

the record is suggested and the record is manifestly imperfect, the court may grant

the writ upon motion in the cause.”

      A superior court’s authority “to grant the writ of certiorari in appropriate cases

is . . . analogous to [this Court’s] power to issue a writ of certiorari pursuant to N.C.

Gen. Stat. § 7A-32(c)[.]” State v. Hamrick, 110 N.C. App. 60, 65, 428 S.E.2d 830, 832-

33, appeal dismissed and disc. review denied, 334 N.C. 436, 433 S.E.2d 181 (1993).

As our Supreme Court long ago explained:

             [T]he Superior Court will always control inferior
             magistrates and tribunals, in matters for which a writ of
             error lies not, by certiorari, to bring up their judicial
             proceedings to be reviewed in the matter of law; for in such
             case “the certiorari is in effect a writ of error,” as all that
             can be discussed in the court above are the form and
             sufficiency of the proceedings as they appear upon the face
             of them. . . . It is . . . essential to the uniformity of decision,
             and the peaceful and regular administration of the law
             here, that there should be some mode for correcting the
             errors, in point of law, of proceedings not according to the
             course of the common law, where the law does not give an


                                              8
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



             appeal; and, therefore, from necessity, we must retain this
             use of the certiorari.

State v. Tripp, 168 N.C. 150, 155, 83 S.E. 630, 632 (1914).

      “Certiorari is a discretionary writ, to be issued only for good and sufficient

cause shown.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959), cert.

denied, 362 U.S. 917, 4 L. Ed. 2d 738 (1960). “A petition for the writ must show merit

or that error was probably committed below.” Id. (citing In re Snelgrove, 208 N.C.

670, 672, 182 S.E. 335, 336 (1935)).

      “Two things . . . should be made to appear on application for certiorari: First,

diligence in prosecuting the appeal, except in cases where no appeal lies, when

freedom from laches in applying for the writ should be shown; and, second, merit, or

that probable error was committed” below. Snelgrove, 208 N.C. at 672, 182 S.E. at

336 (citation and quotation marks omitted). Our Supreme Court has interpreted

“merit” in this context to mean that a petitioner must show “that he has reasonable

grounds for asking that the case be brought up and reviewed on appeal.” Id.

                                          Analysis

      On appeal, Defendant alleges that the Wake County District Attorney’s Office

“refus[es] to reinstate the charges unless [Defendant] enters a plea of guilty and

waives his right to appeal[.]” Defendant lacks an appeal of right from the district

court’s order denying his motion to reinstate the charges, or from the superior court’s

denial of his petition for writ of certiorari. Accordingly, Defendant filed a petition for


                                              9
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



writ of certiorari seeking this Court’s review of the superior court’s order. In our

discretion, we allowed Defendant’s petition for writ of certiorari.         However, the

majority’s opinion fails to sufficiently address that order, which is now squarely

before us, pursuant to the determination of a panel of our Court that Defendant’s

appeal presented “appropriate circumstances” to support issuing a writ of certiorari

in order to enable our review. N.C.R. App. P. 21(a)(1).

      As Defendant correctly notes, the discretionary nature of certiorari “does not

mean that the Superior Court can deny the writ for any reason.”                   While

acknowledging that “the discretion of a trial court is not blanket authority, and must

have some basis in reason[,]” the majority nevertheless misinterprets Defendant’s

argument as an assertion that “the trial court abused its discretion in denying the

writ because he was entitled to it.” Majority at 6. Yet, in faulting Defendant for

arguing “too far afield[,]” id., the majority inadvertently commits the same error.

      For example, the majority asserts:

             Even assuming arguendo that the District Court’s denial of
             [D]efendant’s motion to reinstate the charges was
             erroneous, the Superior Court was not obligated to grant
             certiorari to review it. The result would be unfortunate,
             but such is the case with discretionary writs. They are, by
             nature, discretionary.

                    ....

             It is not enough that he disagree with it, or argue –
             incorrectly – that the trial court was obligated to grant his
             petition. Defendant has to show that the Superior Court’s


                                              10
                                   STATE V. DIAZ-TOMAS

                       Zachary, J., concurring in part, dissenting in part



              decision was unsupported by reason or otherwise entirely
              arbitrary.

Id. at 6-7.

       As the majority explains, an abuse of discretion occurs when the trial court’s

ruling is “manifestly unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.” Id. at 7 (quoting State v. Hennis, 323 N.C.

279, 285, 372 S.E.2d 523, 527 (1988)). Here, the superior court’s order fails to reveal

any basis for its rationale. The order lacks any explanation for the basis of the

superior court’s decision, other than the conclusory statements that “Defendant has

failed to provide ‘sufficient cause’ to support the granting of his Petition” and “is not

entitled to the relief requested[.]” And because all of the “motions and proceedings in

this matter were adjudicated in chambers” without the benefit of recordation or

transcription, the record before this Court fails to disclose the basis for the superior

court’s decision, as well.

       Moreover, it is not clear that Defendant could meet the standard embraced by

the majority under any circumstances, given the majority’s refusal to “address the

merits of the petition to the superior court in the instant case.” Id. at 5 (citation and

quotation marks omitted). I agree that the question of “whether the District Court

erred in denying the motion to reinstate the charges” is not before us. Id. at 7. But

this does not preclude our consideration of the allegations raised in Defendant’s

petition for writ of certiorari—i.e., his request that the superior court review the


                                               11
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



district court’s denial of his motion to reinstate the charges. Indeed, how are we to

fully review the superior court’s order denying Defendant’s petition without

addressing its contents?

      The superior court’s unsupported conclusion that Defendant “failed to provide

‘sufficient cause’ to support the granting of his Petition” conflicts with our well-

established standard for demonstrating merit and good cause for issuance of the writ

of certiorari. A petitioner is not required to demonstrate a likelihood of success in

every instance, merely (1) “diligence in prosecuting the appeal, except in cases where

no appeal lies, when freedom from laches in applying for the writ should be shown”;

and (2) “merit, or that probable error was committed” below. Snelgrove, 208 N.C. at

672, 182 S.E. at 336 (emphasis added); cf. State v. Bishop, 255 N.C. App. 767, 770,

805 S.E.2d 367, 370 (2017) (“As Bishop concedes, he cannot prevail on [his Fourth

Amendment challenge to the trial court’s order imposing lifetime satellite-based

monitoring] without the use of Rule 2 because his constitutional argument is waived

on appeal. In our discretion, we decline to issue a writ of certiorari to review this

unpreserved argument on direct appeal.” (emphasis added)).

      Clearly, Defendant’s petition contains all of the required information, and his

arguments show merit, as we have interpreted that standard, to support the issuance

of a writ of certiorari in order to enable review on the record. In his petition to the

superior court, Defendant raised numerous, detailed arguments alleging violations of



                                              12
                                 STATE V. DIAZ-TOMAS

                     Zachary, J., concurring in part, dissenting in part



his statutory and constitutional rights arising from the State’s refusal to reinstate

his criminal charges, including that:

      (1) The Wake County District Court failed to comply with N.C. Gen. Stat. § 20-

         24.1(b1)’s requirement that a defendant whose license is revoked due to his

         failure to appear after being charged with a motor vehicle offense “must be

         afforded an opportunity for a trial or a hearing within a reasonable time” of

         his appearance.      N.C. Gen. Stat. § 20-24.1(b1).               “Upon motion of a

         defendant, the court must order that a hearing or a trial be heard within a

         reasonable time.” Id. Defendant alleges that the hearing dates provided to

         him “were merely illusory as no opportunity for a trial or hearing actually

         existed on these dates.”

      (2) The Wake County District Attorney’s decision declining to reinstate

         Defendant’s criminal charges was made for an improper purpose—namely,

         to coerce him to plead guilty. Citing a variety of authorities for support,

         Defendant further alleges that the circumstances of the instant case evince

         a pattern of “systematic prosecutorial misconduct” on the part of the Wake

         County District Attorney’s Office, which the District Court had the

         authority to address.

      (3) The District Attorney’s refusal to reinstate his criminal charges violates his

         constitutional rights to due process and a speedy trial.                According to



                                             13
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



          Defendant, “a due process violation exists when a prosecutor exercises his

          calendaring authority to gain a tactical advantage over a criminal

          defendant.” For support, Defendant cites Klopfer v. North Carolina, 386

          U.S. 213, 18 L. Ed. 2d 1 (1967), and Simeon v. Hardin, 339 N.C. 358, 451

          S.E.2d 858 (1994).

      To be clear, I offer no opinion on the likelihood of Defendant’s success on the

merits of his petition, nor, as previously explained, is that question before us at this

juncture. See State v. Ross, 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016) (“The

decision concerning whether to issue a writ of certiorari is discretionary, and thus,

the Court of Appeals may choose to grant such a writ to review some issues that are

meritorious but not others for which a defendant has failed to show good or sufficient

cause. As such, the two issues that [the] defendant raised in his petition for writ of

certiorari to the Court of Appeals have not survived that court’s decision to allow the

writ for the limited purpose of considering the voluntariness of his guilty plea.”

(internal citation omitted)).

      However, Defendant’s petition for writ of certiorari contains cogent, well-

supported arguments alleging statutory and constitutional violations akin to those at

issue in Klopfer and Simeon, which—if true—are certainly concerning. He has no

other avenue to seek redress for these alleged legal wrongs, because he has no right




                                              14
                                  STATE V. DIAZ-TOMAS

                      Zachary, J., concurring in part, dissenting in part



to appeal from the denial of his motion to reinstate charges. And if he pleads guilty,

as the State intends, he waives his right to appeal altogether. This is no bargain.

             The open courts clause, Article I, Section 18 of the North
             Carolina Constitution, guarantees a criminal defendant a
             speedy trial, an impartial tribunal, and access to the court
             to apply for redress of injury. While this clause does not
             outlaw good-faith delays which are reasonably necessary
             for the state to prepare and present its case, it does prohibit
             purposeful or oppressive delays and those which the
             prosecution could have avoided with reasonable effort.
             Furthermore, Article I, Section 24 of the North Carolina
             Constitution grants every criminal defendant the absolute
             right to plead not guilty and to be tried by a jury. Criminal
             defendants cannot be punished for exercising this right.

Simeon, 339 N.C. at 377-78, 451 S.E.2d at 871 (emphasis added) (internal citations

and quotation marks omitted).

      Quite plainly, Defendant has no alternate means to seek redress of the issues

raised in his petition before the superior court. The majority’s opinion fails to address

the issues raised in Defendant’s petition—a necessary consideration upon review of

the superior court’s order denying his request for the writ of certiorari. For all of

these reasons, I respectfully dissent.




                                              15
