              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-414-2

                               Filed: 6 December 2016

Rowan County, No. 13 CRS 50063

STATE OF NORTH CAROLINA

             v.

DONNA HELMS LEDBETTER


      Appeal by defendant from judgment entered 27 October 2014 by Judge Jeffrey

P. Hunt in Rowan County Superior Court. Originally heard in the Court of Appeals

8 October 2015, with opinion issued 3 November 2015. The defendant’s petition for

discretionary review pursuant to N.C. Gen. Stat. § 7A-31 was allowed by the Supreme

Court of North Carolina on 22 September 2016, for the limited purpose of remanding

to this Court for reconsideration.


      Attorney General Roy Cooper, by Assistant Attorney Generals Christopher W.
      Brooks and Ashleigh P. Dunston, for the State.

      Meghan A. Jones, for defendant-appellant.


      PER CURIAM.


      This case is before the Court on remand by Order of the North Carolina

Supreme Court dated 22 September 2016, to be reconsidered in light of that Court’s

recent decisions in State v. Thomsen, __ N.C. __, 789 S.E.2d 639 (2016) and State v.

Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2016).
                                  STATE V. LEDBETTER

                                   Opinion of the Court



                              I. Procedural Background

        The facts underlying this case are set forth in detail in our previous opinion,

State v. Ledbetter, __ N.C. App. __, 779 S.E.2d 164 (2015), and are briefly presented

here.    Donna Helms Ledbetter (“Defendant”) was charged with driving while

impaired. Defendant filed a motion to dismiss the charges on 23 December 2013, and

argued the State had violated N.C. Gen. Stat. § 20-38.4 (setting forth procedures for

magistrates to follow when the arrestee appears to be impaired during the initial

appearance) and State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988) (holding a DWI

charge is subject to dismissal for magistrate’s failure to “inform [the accused] of the

charges against him, of his right to communicate with counsel and friends, and of the

general circumstances under which he may secure his release.”)

        Following the court’s denial of her motion, Defendant entered a plea of guilty.

The plea arrangement stated “[Defendant] expressly retains the right to appeal the

Court’s denial of her motion to dismiss/suppress her Driving while Impaired charge

in this case and her plea of guilty is conditioned based on her right to appeal that

decision[.]” Defendant purportedly appealed to this Court from the judgment entered

upon her guilty plea, and argued the trial court erred by denying her “motion to

dismiss.” The State moved to dismiss Defendant’s appeal, and to deny her petition

for writ of certiorari.




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      This Court held Defendant did not have a statutory right to appeal the motion

to dismiss under either §§ 15A-1444(a)-(d) or 15A-979(b). Ledbetter, __ N.C. App. at

__, 779 S.E.2d at 170-71. Defendant had petitioned this Court to issue a writ of

certiorari to review the denial of her motion to dismiss. This Court held Rules 1 and

21 of the North Carolina Rules of Appellate Procedure governs our appellate

procedures and do not set forth the grounds Defendant asserted to issue the requested

writ. In the exercise of our discretion, we further declined to invoke Rule 2 to suspend

the Rules of Appellate Procedure to exercise our admitted jurisdiction to issue the

writ under N.C. Gen. Stat. § 1444(e). We dismissed Defendant’s purported appeal.

Id.

                               II. Thomsen and Stubbs

      After our initial opinion was issued in this case, the Supreme Court issued its

opinion in Thomsen. In that case, the defendant pled guilty to rape of a child and

sexual offense with a child, both felonies which carry mandatory minimum sentences

of 300 months. Thomsen, __ N.C. at __, 789 S.E.2d at 641. After it consolidated the

convictions and sentenced the defendant to a prison term of 300 to 420 months, the

trial court immediately sua sponte granted its own motion for appropriate relief

(“MAR”) and vacated the judgment and sentence. The trial court determined the

mandatory sentence violated the Eighth Amendment, and imposed a lower sentence

pursuant to the Structured Sentencing Act. Id.



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                                   Opinion of the Court



      The State petitioned this Court to issue the writ of certiorari to review the trial

court’s order granting its own MAR.           This Court allowed the State’s petition,

addressed the State’s argument and held, over a dissent, the mandatory minimum

sentence did not violate the Eighth Amendment, and remanded the case for

resentencing. Id. The Supreme Court addressed the issue raised by the dissenting

opinion, whether this Court had subject matter jurisdiction to review, by certiorari,

the trial court’s grant of its own MAR. Id.

      In Thomsen, the Supreme Court relied upon its decision in State v. Stubbs, 368

N.C. 40, 770 S.E.2d 74 (2016). Stubbs was decided and issued while Ledbetter was

initially pending before our Court, and is addressed and cited within our previous

opinion. See Ledbetter, __ N.C. App. at __, 779 S.E.2d at 168.

      In Stubbs, the Court considered whether the Courts in the appellate division

have jurisdiction to review, by certiorari, the trial court’s grant of a MAR in favor of

the defendant. The trial court’s ruling on a MAR is statutorily subject to review by

certiorari. N.C. Gen. Stat. § 15A-1422(c) (2015). The Court noted the statute “does

not distinguish between an MAR when the State prevails below and an MAR under

which the defendant prevails.” Stubbs, 368 N.C. at 43, 770 S.E.2d at 76. The Court

stated:

             Accordingly, given that our state constitution authorizes
             the General Assembly to define the jurisdiction of the
             Court of Appeals, and given that the General Assembly has
             given that court broad powers “to supervise and control the


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                                   Opinion of the Court



              proceedings of any of the trial courts of the General Court
              of Justice,” id. § 7A-32(c), and given that the General
              Assembly has placed no limiting language in subsection
              15A-1422(c) regarding which party may appeal a ruling on
              an MAR, we hold that the Court of Appeals has jurisdiction
              to hear an appeal by the State of an MAR when the
              defendant has won relief from the trial court.

Id. at 43, 770 S.E.2d at 76 (emphasis supplied).

       The Court noted the Rules of Appellate Procedure are pertinent to its analysis.

Id. At that time, the language of Rule 21 only permitted appellate review of the

issuance of the writ of certiorari to review an “‘order of the trial court denying a

motion for appropriate relief.’” Id. (quoting N.C. R. App. P. 21(a)(1)) (emphasis

supplied). The defendant in Stubbs argued that under the language of the Rule, the

State may not seek review by certiorari of an order of a trial court granting a motion

for appropriate relief. Id.

       The Supreme Court disagreed, and held:

              As stated plainly in Rule 1 of the Rules of Appellate
              Procedure, “[t]hese rules shall not be construed to extend
              or limit the jurisdiction of the courts of the appellate
              division as that is established by law.” [N.C. R. App. P. 1]
              Therefore, while 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.

Id. at 43-44, 770 S.E.2d at 76.




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       Where § 15A-1422(c) contains “no limiting language . . . regarding which party

may appeal a ruling on an MAR,” the Court held this Court has jurisdiction to hear

an appeal by the State of an MAR when defendant has won relief from the trial court.

Id. at 43, 770 S.E.2d at 76. On the same day the Stubbs opinion was filed, and prior

to the issuance of its mandate, the Supreme Court specifically amended Rule 21 to

set forth a procedure under the appellate rules to permit review of all rulings on

motions for appropriate relief in accordance with the language of N.C. Gen. Stat. §

15A-1422(c)(3). N.C. R. App. P. 21(a) (2016).

       As in Stubbs, the Court in Thomsen noted “[t]he General Assembly has

exercised [its] constitutional authority in N.C.G.S. § 7A-32(c) by giving the Court of

Appeals ‘jurisdiction . . . to issue the prerogative writs, including . . . certiorari, . . . to

supervise and control the proceedings of any of the trial courts of the General Court

of Justice.’” Thomsen, __ N.C. at __, 789 S.E.2d at 641 (quoting N.C. Gen. Stat. § 7A-

32(c) (2015)). The Court explained N.C. Gen. Stat. § 7A-32(c) “empowers the Court

of Appeals to review trial court rulings on motions for appropriate relief by writ of

certiorari unless some other statute restricts the jurisdiction,” and “only the General

Assembly can take away the jurisdiction that it has conferred.” Id. at __, 789 S.E.2d

at 641-42.

       “Subsection 7A-32(c) thus creates a default rule that the Court of Appeals has

jurisdiction to review a lower court judgment by writ of certiorari. The default rule



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                                   Opinion of the Court



will control unless a more specific statute restricts jurisdiction in the particular class

of cases at issue.” Id. at __, 789 S.E.2d at 642 (emphasis supplied).

               III. Authority Under the Rules of Appellate Procedure

      Both Thomsen and Stubbs address 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. N.C. Gen. Stat. § 15A-1444(e) provides

that a criminal defendant who pleads guilty to a criminal offense “may petition the

appellate division for review by writ of certiorari.” N.C. Gen. Stat. § 15A-1444(e)

(2015). Our initial opinion in this case neither denies, nor purports to limit, this

Court’s jurisdiction to issue the writ under N.C. Gen. Stat. § 15A-1444(e), or any other

statute.

      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 this Rule to

review her guilty plea.




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                                    Opinion of the Court



       We are without a procedural basis to do so, without invoking Rule 2 to suspend

the Rules. See Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300

(1999) (Appellate Rule 2 “relates to the residual power of our appellate courts to

consider, in exceptional circumstances, significant issues of importance in the public

interest, or to prevent injustice which appears manifest to the Court and only in such

instances.”).

       Appellate Rule 1 states the Rules of Appellate Procedure “govern procedure in

all appeals from the courts of the trial division to the courts of the appellate division

. . . and in applications to the courts of the appellate division for writs and other relief

which the courts or judges thereof are empowered to give.” N.C. R. App. P. 1(b)

(emphasis supplied). Appellate Rules 1, 2 and 21 provide this Court with a procedure

and mechanism to guide our discretion to grant or deny a petition to issue the writ of

certiorari under the jurisdiction the appellate courts are “empowered” to exercise

under our Constitution and statutes. N.C. R. App. P. 1(b), Stubbs, __ N.C. __, 789

S.E.2d at 641-42.

       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. See State v. Biddix, __ N.C. App. __, 780 S.E.2d 863 (2015) (declining to



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                                    Opinion of the Court



exercise Rule 2 to suspend the appellate rules, denying petition for writ of certiorari,

and dismissing defendant’s purported appeal from guilty plea where the issue is not

listed for review to issue a writ of certiorari pursuant to Appellate Rule 21); 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, unless it has been overturned by a higher

court.”).

       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. For example, although this Court maintains jurisdiction

over an appeal, this Court is also bound by Rules 10 and 28 of the Rules of Appellate

Procedure, which generally limits review to a only those issues properly preserved

and briefed. N.C. R. App. P. 10(a)(1) (2016); N.C. R. App. P. 28(b) (2016).

                                     IV. Conclusion

       After further consideration and review of both Thomsen and Stubbs, and under

the jurisdictional authority provided by N.C. Gen. Stat. § 15A-1444(e), Defendant’s

petition for writ of certiorari to review her motion to dismiss, prior to entry of her

guilty plea, does not assert any of the procedural grounds set forth in Rule 21 to issue



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                                  Opinion of the Court



the writ.   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. Appellate Rule 2 sets forth the discretionary basis and restates “the

residual power of our appellate courts to consider, in exceptional circumstances,

significant issues of importance in the public interest, or to prevent injustice which

appears manifest to the Court and only in such instances.” Steingress, 350 N.C. at 66,

511 S.E.2d at 299-300. Defendant’s petition before us does not meet that threshold.

      Upon remand and after reconsideration and further discretionary review,

Defendant’s petition is denied, and her appeal is dismissed. The prior mandate issued

by this court remains undisturbed. It is so ordered.

      PETITION DENIED AND APPEAL DISMISSED.

      Panel Consisting of: McCullough, Dietz, Tyson, JJ.




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