              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-414-3

                                Filed: 21 August 2018

Rowan County, No. 13CRS50063

STATE OF NORTH CAROLINA

             v.

DONNA HELMS LEDBETTER


      Appeal by Donna Helms Ledbetter (“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, and reconsidered by opinion issued 6

December 2016. State v. Ledbetter, __ N.C. App. __, 794 S.E.2d 551 (2016). Upon

remand from the Supreme Court of North Carolina by opinion issued 8 June 2018.

State v. Ledbetter, __ N.C. __, 814 S.E.2d 39 (2018).



      Attorney General Joshua H. Stein, by Assistant Attorneys General Christopher
      W. Brooks and Ashleigh P. Dunston, for the State.

      Meghan A. Jones for defendant-appellant.


      TYSON, Judge.


                                    I. Background

      The facts underlying this case are set forth in our previous opinion, State v.

Ledbetter, 243 N.C. App. 746, 779 S.E.2d 164 (2015). The procedural history is

contained in State v. Ledbetter, __ N.C. __, 814 S.E.2d 39 (2018). Pursuant to the
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                                   Opinion of the Court



Supreme Court’s instructions, we “exercise [our] discretion to determine whether [we]

should grant or deny [D]efendant’s petition for writ of certiorari.” Id. at __, 814 S.E.2d

at 43 (2018).

                                  II. Writ of Certiorari

      “A writ of certiorari is an extraordinary remedial writ[.]” State v. Roux, 263

N.C. 149, 153, 139 S.E.2d 189, 192 (1964) (citation omitted).            “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) (citation omitted), cert. denied,

362 U.S. 917, 4 L. Ed. 2d 738 (1960).

      “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 . . . issues

that are meritorious but not [for issues] for which a defendant has failed to show good

or sufficient cause.” State v. Ross, 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016)

(emphasis supplied and citation omitted).

      In deciding whether to grant Defendant’s petition, Defendant’s arguments

must demonstrate “good and sufficient cause” to support this Court’s exercise of its

discretion to grant her petition and issue the writ of certiorari. Id.

      Defendant asserts the trial court prejudicially erred in denying her motion to

dismiss, because the State violated N.C. Gen. Stat. § 20-38.4, N.C. Gen. Stat. § 15A-

534, and State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988), when the magistrate:



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(1) failed to provide Defendant a written copy of Form AOC-CR-271, advising of her

right to have witnesses observe her demeanor in jail; and, (2) failed to enter sufficient

findings of fact to show Defendant was a danger to herself and others to justify

imposing a secured bond pursuant to N.C. Gen. Stat. § 15A-534.

      “Dismissal of charges for violations of statutory rights is a drastic remedy

which should be granted sparingly. Before a motion to dismiss should be granted [. .

.] it must appear that the statutory violation caused irreparable prejudice to the

preparation of defendant’s case.” State v. Labinski, 188 N.C. App. 120, 124, 654 S.E.2d

740, 742-43 (emphasis original) (citation and internal quotation marks omitted),

review denied, 362 N.C. 367, 661 S.E.2d 889 (2008).

      With regard to Defendant’s first argument, the State concedes the magistrate

did not comply with N.C. Gen. Stat. § 20-38.4 to inform Defendant “in writing of the

established procedure to have others appear at the jail to observe [her] condition” and

failing to require her “to list all persons [she] wishes to contact and telephone

numbers on a form that sets forth the procedure for contacting the persons listed.”

N.C. Gen. Stat. § 20-38.4 (2017).

      The State argues Defendant cannot demonstrate “irreparable prejudice to the

preparation of defendant’s case” because the magistrate orally informed Defendant

of her right to have witnesses present to observe her condition. Labinski, 188 N.C.

App. at 124, 654 S.E.2d at 742-43. In its order denying Defendant’s motion to dismiss,



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the trial court found:

             45. Magistrate Wyrick testified he did tell the defendant of
             her right to have individuals come to the detention center
             to observe her condition.
             ....

             47. Once placed in the Rowan County Detention Center,
             the defendant was allowed to make phone calls to her
             mother (several calls), to her brother (1 call), to Kenneth
             Paxton and a girlfriend Alisha.

      These findings of fact are supported by competent evidence in the record

through the testimony of Magistrate Wyrick and Defendant’s own testimony that she

was able to, and did, in fact, make several phone calls from jail to friends and family.

Defendant cannot demonstrate the statutory violation caused her to suffer any

“irreparable prejudice to the preparation of defendant’s case.” Id.

      With regard to Defendant’s second argument, she argues the magistrate

violated N.C. Gen. Stat. § 15A-534, which requires a magistrate to record, “in

writing,” findings for imposing a secured bond upon a defendant, and to consider the

factors listed under N.C. Gen. Stat. § 15A-534(c). N.C. Gen. Stat. 15A-534(a)-(c)

(2017). Defendant contends the magistrate’s failure to comply with these statutory

obligations led to a deprivation of her right to gather evidence and witnesses on her

behalf during a crucial time period following arrest.

        Magistrate Wyrick testified he took into consideration Defendant’s condition

in deciding whether to impose a secured bond and he initially entered his reasons on



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                                 Opinion of the Court



his computer for imposing a secured bond into the “FINDINGS” section of Form AOC-

CR-270. However, Magistrate Wyrick testified he accidently deleted his reasons

listed on Form AOC-CR-270 and they were replaced with the text and finding of

“BLOOD TEST.” Based upon the magistrate’s testimony, the trial court found:

            38. Magistrate Wyrick noted by writing “Blood Test” on
            [AOC-CR-270] that he found by clear[,] cogent[,] and
            convincing evidence that the defendant’s physical or
            mental faculties were impaired and that she was a danger
            to herself, others or property if released.

            39. Magistrate Wyrick ordered that the defendant be held
            until her physical and mental faculties were no longer
            impaired to the extent she presented a danger to herself,
            others or property or released to a sober responsible adult.
            (SE# 5) [Emphasis supplied]

            40. Magistrate Wyrick on the charges of No Operator’s
            License, Simple Possession of Schedule II Controlled
            Substance and Simple Possession of Schedule IV
            Controlled Substance set a $1,000 secured bond for the
            defendant. (SE# 6)

            41. Magistrate Wyrick testified that he considered the
            factors set forth in 15A-534(c) in setting the defendant’s
            bond, but he could not recall any specific facts upon which
            he relied in setting the secured bond.

            42. In addition, Magistrate Wyrick ordered the defendant
            be held until 7 am on 01/02/13 unless released to a sober
            adult. (SE# 6) [Emphasis supplied]

      Based upon these findings of fact, which are supported by competent evidence,

Defendant has failed to show she was denied access to witnesses, her right to have

witnesses observe her condition, or her right to collect evidence. Defendant has not


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demonstrated “irreparable prejudice to the preparation of [her] case” by the

magistrate’s statutory violations and failures to provide her with a copy of Form AOC-

CR-271 or to make additional factual findings to justify imposing a secured bond

under N.C. Gen. Stat. § 15A-534.

      Defendant was informed of her right to have witnesses observe her, had the

means and was provided the opportunity to contact potential witnesses. Additionally,

the magistrate’s detention order required Defendant to remain in custody for a

twelve-hour period or until released into the custody of “a sober, responsible adult.”

Defendant was released into the custody of a sober acquaintance after spending only

two hours and fifty-three minutes in jail, from 9:31 p.m. 1 January 2013 until 12:24

a.m. 2 January 2013.

      Defendant also argues she was per se prejudiced by the magistrate’s statutory

violations, pursuant to State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971). In Hill, the

defendant was involved in a motor vehicle accident. Id. at 549, 178 S.E.2d at 463.

After coming upon the scene of the accident, a police officer arrested the defendant

for drunken driving after observing factors tending to indicate the defendant was

appreciably impaired. Id. After his arrest, the defendant was taken to jail and

administered a breathalyzer test. Id., 178 S.E.2d at 464. Following the breathalyzer

test, the evidence tended to show:

             (1) that defendant was not ‘permitted’ to telephone his
             attorney until after the breathalyzer testing and


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             photographic procedures were completed and the warrant
             was served; (2) that he called Mr. Graham, his attorney and
             brother-in-law, who came to the jail; (3) that Mr. Graham's
             request to see his client and relative was peremptorily and
             categorically denied; and (4) that from the time defendant
             was arrested about 11:00 p.m. until he was released about
             7:00 a.m. the following morning only law enforcement
             officers had seen or had access to him.

Id. at 553, 178 S.E.2d at 466. The evidence also tended to show the defendant was

only permitted one phone call. Id. at 550, 178 S.E.2d at 464. The Supreme Court of

North Carolina held the denial of the defendant’s statutory and constitutional right

of access to his counsel was per se prejudicial and stated:

             Before we could say that defendant was not prejudiced by
             the refusal of the jailer to permit his attorney to see him
             we would have to assume both the infallibility and
             credibility of the State’s witnesses as well as the certitude
             of their tests. Even if the assumption be true in this case,
             it will not always be so. However, the rule we now
             formulate will be uniformly applicable hereafter. It may
             well be that here ‘the criminal is to go free because the
             constable blundered.’ Notwithstanding, when an officer’s
             blunder deprives a defendant of his only opportunity to
             obtain evidence which might prove his innocence, the State
             will not be heard to say that such evidence did not exist.

      Id. at 555, 178 S.E.2d at 467 (emphasis supplied).

      In contrast to the facts in Hill, no evidence in the record suggests the State

took affirmative steps to deprive Defendant of any access to potential witnesses or an

attorney, such as by preventing them from talking to Defendant or entering the jail

to observe her. See id.



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                                   Opinion of the Court



       Unlike the defendant in Hill, Defendant was told of her right to have observers

present, was not limited to one phone call following her arrest, was allowed and did

make numerous calls to multiple individuals and was released to a sober adult within

less than three hours. Additionally, the Supreme Court later acknowledged in Knoll

that the per se prejudice rule stated in Hill is no longer applicable. Knoll, 322 N.C. at

545, 369 S.E.2d at 564 (“Because of the change in North Carolina’s driving while

intoxicated laws, denial of access is no longer inherently prejudicial to a defendant’s

ability to gather evidence in support of his innocence in every driving while impaired

case.” (citation omitted)).

       Defendant’s arguments fail to demonstrate “irreparable prejudice to the

preparation of defendant’s case.” See Labinski, 188 N.C. App. at 124, 654 S.E.2d at

742-43. Defendant does not raise any “good and sufficient cause” to support this

Court’s exercise of our discretion to grant her petition and issue the extraordinary

writ of certiorari. See Grundler, 251 N.C. at 189, 111 S.E.2d at 9; Roux, 263 N.C. at

153, 139 S.E.2d at 192; Ross, 369 N.C. at 400, 794 S.E.2d at 293.

       Defendant pled guilty to DWI in a plea bargain in exchange for the State’s

dismissal of two charges for possession of controlled substances for oxymorphone and

Xanax, found upon her without a prescription when she was arrested for DWI. A

defendant can plead guilty and reserve the right to challenge a motion to suppress

pursuant to N.C. Gen. Stat. §§ 15A-979(b) (2017) and 15A-1444(e) (2017). Here,



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                                   Opinion of the Court



Defendant has never argued any evidence the State gathered in her case was

obtained in violation of her constitutional or statutory rights and should be

suppressed. Defendant attempts to appeal from an order denying her motion to

dismiss entered prior to her guilty plea. This issue is not listed as one of the grounds

for appeal of right set forth in N.C. Gen. Stat. § 15A-1444. Defendant has no statutory

right to plead guilty, while preserving a right to appeal the denial of her motion to

dismiss. See N.C. Gen. Stat. § 15A-1444.

      As this Court has previously stated,

             We are reluctant to issue a writ of certiorari permitting
             direct review of issues that otherwise would not be
             reviewable on direct appeal because of a guilty plea.
             Permitting review by certiorari in these circumstances
             ‘could damage the integrity of the plea bargaining process’
             by undermining the finality that the State secures when a
             defendant pleads guilty.

State v. Benton, __ N.C. App. __, 801 S.E.2d 396 (2017). Allowing certiorari under

these facts could also jeopardize the adequate state procedure exemption to federal

post-conviction relief. See, e.g., Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003).

      Defendant received the benefit of her plea bargain when the State agreed to

dismiss the two charges for possession of controlled substances. Defendant pled

guilty to DWI prior to the State Bureau of Investigation conducting a chemical

analysis of her properly taken blood sample. Defendant stipulated “there’s a factual

basis for purposes of the DWI charge[,]” pursuant to her guilty plea. Defendant has



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not demonstrated any “good and sufficient cause” to justify exercising our discretion

to grant her petition and issue a writ of certiorari to allow her to challenge purported

statutory violations surrounding a conviction to which she voluntarily pled guilty.

       In addition to our analysis above, Defendant’s petition also fails to assert any

of the grounds for allowing her petition and issuing a writ of certiorari contained in

Appellate Rule 21 for us to exercise our discretion to grant Defendant’s petition under

that Rule. See Ledbetter, __ N.C. at __, 814 S.E.2d at 43; N.C. R. App. P. 21(a)(1).

Defendant failed to demonstrate any grounds for this Court to invoke Appellate Rule

2. See id; see also N.C. R. App. P. 2.

                                     III. Conclusion

       Defendant has failed to demonstrate any “irreparable prejudice to the

preparation of defendant’s case,” “good and sufficient cause” or any other grounds for

purported statutory violations to support granting her petition for a writ of certiorari

under the statute or our appellate rules. In the exercise of our discretion, Defendant’s

petition for writ of certiorari is denied. Defendant’s purported appeal is dismissed.

It is so ordered.

       PETITION DENIED AND APPEAL DISMISSED.

       Judge DIETZ concurs.

       Judge ARROWOOD concurs in the result.




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