               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 402PA15-2

                                  Filed 8 June 2018

 STATE OF NORTH CAROLINA

              v.
 DONNA HELMS LEDBETTER



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 794 S.E.2d 551 (2016) (per curiam),

denying defendant’s petition for writ of certiorari to review an order entered on 20

October 2014 by Judge C.W. Bragg and dismissing defendant’s appeal from a

judgment entered on 27 October 2014 by Judge Jeffrey P. Hunt, both in Superior

Court, Rowan County. Heard in the Supreme Court on 17 April 2018.


      Joshua H. Stein, Attorney General, by Christopher W. Brooks, Special Deputy
      Attorney General, for the State.

      Meghan Adelle Jones for defendant-appellant.


      BEASLEY, Justice.


      In this case we consider whether the absence of a procedural rule limits the

Court of Appeals’ discretionary authority to issue a writ of certiorari. In denying

defendant’s petition for writ of certiorari, the Court of Appeals held that although it

had jurisdiction to issue the writ, it lacked a procedural mechanism under Rule 21 of

the North Carolina Rules of Appellate Procedure to do so without further exercising
                                   STATE V. LEDBETTER

                                     Opinion of the Court



its discretion to invoke Rule 2 to suspend the Rules. See State v. Ledbetter, ___ N.C.

App. ___, ___, 794 S.E.2d 551, 555 (2016) (per curiam); see also N.C. Rs. App. P. 2, 21.

Because we conclude that the absence of a procedural rule limits neither the Court of

Appeals’ jurisdiction nor its discretionary authority to issue writs of certiorari, we

reverse the decision of the Court of Appeals and remand this case for further

proceedings.


       On 1 January 2013, defendant was charged with driving while impaired.

Defendant filed a motion to dismiss the charge on 23 December 2013, arguing that

the State violated N.C.G.S. § 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, 545-48, 369 S.E.2d 558, 564-66 (1988) (holding that a

charge of driving while impaired is subject to dismissal when the defendant was

prejudiced by the magistrate’s failure to inform the defendant of certain statutory

rights). The trial court denied defendant’s motion on 20 October 2014.


       Following the trial court’s denial of her motion, on 27 October 2014, defendant

pleaded guilty to driving while impaired.1           The plea arrangement stated that

“[defendant] expressly retains the right to appeal [t]he [c]ourt’s denial of her motion

to dismiss/suppress her Driving While Impaired charge in this case.” Defendant gave


       1In addition to the charge of driving while impaired, the State charged defendant with
simple possession of both a Schedule II and a Schedule IV controlled substance; however, the
two possession charges were dismissed pursuant to the plea arrangement.

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                                   Opinion of the Court



notice of appeal and petitioned the Court of Appeals for review by writ of certiorari

under N.C.G.S. § 15A-1444(e). The Court of Appeals dismissed the appeal and denied

the certiorari petition, holding that defendant did not have a statutory right to appeal

from the trial court’s denial of her motion to dismiss prior to her guilty plea and that

the petition did not assert grounds included in or permitted by Rule 21. See State v.

Ledbetter, 243 N.C. App. 746, 757, 779 S.E.2d 164, 171 (2015). On 22 September

2016, this Court remanded the case to the Court of Appeals for reconsideration in

light of the Court’s recent decisions in State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74

(2015), and State v. Thomsen, 369 N.C. 22, 789 S.E.2d 639 (2016). State v. Ledbetter,

369 N.C. 64, 64, 793 S.E.2d 216, 216-17 (2016) (per curiam order).


      Upon reconsideration, the same panel of the Court of Appeals issued a

unanimous opinion that again denied defendant’s petition for writ of certiorari and

dismissed her appeal. See Ledbetter, ___ N.C. App. at ___, 794 S.E.2d at 555. The

Court of Appeals held that

                     [a]fter further consideration and review of both
             Thomsen and Stubbs, and under the jurisdictional
             authority provided by N.C. Gen. Stat. § 15A-1444(e),
             [d]efendant’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 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.




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                                     Opinion of the Court



Id. at ___, 794 S.E.2d at 555. The court further declined to invoke Rule 2 to suspend

the requirements of the rules to issue the writ of certiorari. Id. at ___, 794 S.E.2d at

555.


       The North Carolina Constitution states that “[t]he Court of Appeals shall have

such appellate jurisdiction as the General Assembly may prescribe.” N.C. Const. art.

IV, § 12(2). The General Assembly has exercised this constitutional authority by

giving the Court of Appeals “jurisdiction . . . to issue the prerogative writs, including

mandamus, prohibition, certiorari, and supersedeas, in aid of its own jurisdiction, or

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

of Justice.” N.C.G.S. § 7A-32(c) (2017). “This statute empowers the Court of Appeals

to review trial court rulings . . . by writ of certiorari unless some other statute restricts

the jurisdiction that subsection 7A-32(c) grants.” Thomsen, 369 N.C. at 25, 789

S.E.2d at 641 (citing Stubbs, 368 N.C. at 42-43, 770 S.E.2d at 76).              Therefore,

“[s]ubsection 7A-32(c) . . . creates a default rule that the Court of Appeals has

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

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

of cases at issue.” Id. at 25, 789 S.E.2d at 642.


       In State v. Stubbs we addressed whether the Court of Appeals has jurisdiction

to review a trial court’s grant of a defendant’s motion for appropriate relief by writ of

certiorari. See 368 N.C. at 41, 770 S.E.2d at 75. We noted that a separate statute,


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                                  Opinion of the Court



N.C.G.S. § 15A-1422(c), specifically addresses review of trial court rulings on motions

for appropriate relief under section 15A-1415. Id. at 42-43, 770 S.E.2d at 76. In

Stubbs “we were not concerned with whether subsection 15A-1422(c) provided an

independent source of jurisdiction for the Court of Appeals to issue the writ. Rather,

we focused on the absence of language in subsection 15A-1422(c) that would limit the

court’s review.” Thomsen, 369 N.C. at 25, 789 S.E.2d at 642 (citing Stubbs, 368 N.C.

at 43, 770 S.E.2d at 76) (citations omitted). Finding no limiting language, we held

that the Court of Appeals had jurisdiction to issue the writ. Id. at 25, 789 S.E.2d at

642 (citing Stubbs, 368 N.C. at 43, 770 S.E.2d at 76).


      In State v. Thomsen the sole difference from Stubbs was that the trial court

granted appropriate relief on its own motion pursuant to N.C.G.S. § 15A-1420(d),

rather than on defendant’s motion pursuant to N.C.G.S. § 15A-1415.           Compare

Thomsen, 369 N.C. at 25, 789 S.E.2d at 642, with Stubbs, 368 N.C. at 41, 770 S.E.2d

at 75. N.C.G.S. § 15A-1422(c) does not mention review of relief granted “pursuant to”

subsection 15A-1420(d); therefore, the parties disagreed on whether the sua sponte

grant of relief was “pursuant to” subsection 15A-1415(b) or subsection 15A-1420(d).

See Thomsen, 369 N.C. at 26, 789 S.E.2d at 642. We held that the answer to this

question did not matter, and that the Court of Appeals had jurisdiction in either event

“because nothing in the Criminal Procedure Act, or any other statute that defendant

has referenced, revokes the jurisdiction in this specific context that subsection 7A-

32(c) confers more generally.” Id. at 26, 789 S.E.2d at 642. Therefore, the Court of

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                                    STATE V. LEDBETTER

                                      Opinion of the Court



Appeals maintains broad jurisdiction to issue writs of certiorari unless a more specific

statute revokes or limits that jurisdiction.


       Although Stubbs and Thomsen concerned reviews of motions for appropriate

relief, the same statutory analysis applies in this case. With respect to guilty pleas,

subsection 15A-1444(e) states that

              [e]xcept as provided in subsections (a1) and (a2) of this
              section and [N.C.]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) (2017). Here, given that none of the other listed exceptions

apply, defendant’s only method for appeal was by petition for writ of certiorari. See

id. Subsection 15A-1444(e) specifically addresses review of a defendant’s guilty plea

through issuance of a writ of certiorari and contains no language limiting the Court

of Appeals’ jurisdiction or discretionary authority. Therefore, the Court of Appeals

correctly acknowledged that it had jurisdiction to issue the writ; however, the court

mistakenly concluded that the absence of a specific “procedural process” in the Rules

of Appellate Procedure left the court without authority to invoke that jurisdiction.2


       2We note that a separate, unanimous panel of the Court of Appeals correctly followed
Stubbs to exercise its discretion to grant a defendant’s petition for writ of certiorari in
essentially identical procedural circumstances. See State v. Jones, ___ N.C. App. ___, ___,
___, 802 S.E.2d 518, 520-23, 526 (2017) (holding that the Court of Appeals had jurisdiction
and discretionary authority to grant the defendant’s petition for writ of certiorari to review a

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                                   STATE V. LEDBETTER

                                    Opinion of the Court



       The Court of Appeals held that because defendant’s petition for writ of

certiorari to review her motion to dismiss did not assert any of the procedural grounds

set forth in Rule 21, the court was “without a procedural process” to issue the writ

other than by invoking Rule 2. See Ledbetter, ___ N.C. App. at ___, 794 S.E.2d at 555.

Rule 21 states, in relevant part, that

              [t]he writ of certiorari may be issued in appropriate
              circumstances by either appellate court to permit review of
              the judgments and orders of trial tribunals 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). Regardless of whether Rule 21 contemplates review of

defendant’s motion to dismiss, this Court made it clear in both Stubbs and Thomsen

that “if a valid statute gives the Court of Appeals jurisdiction to issue a writ of

certiorari, Rule 21 cannot take it away.” Thomsen, 369 N.C. at 27, 789 S.E.2d at 643

(citing Stubbs, 368 N.C. at 43-44, 770 S.E.2d at 76); see also N.C. R. App. P. 1(c)

(“These rules shall not be construed to extend or limit the jurisdiction of the courts of

the appellate division as that is established by law.”).


       By concluding it is procedurally barred from exercising its discretionary

authority to assert jurisdiction in this appeal, the Court of Appeals has, as a practical




judgment entered upon his plea of guilty, even though Rule 21 did not include the particular
circumstance among its enumerated bases for issuance of the writ).

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                                     STATE V. LEDBETTER

                                       Opinion of the Court



matter, set its own limitations on its jurisdiction to issue writs of certiorari. “The

practice and procedure [of issuing the prerogative writs] shall be as provided by

statute or rule of the Supreme Court, or, in the absence of statute or rule, according to

the practice and procedure of the common law.” N.C.G.S. § 7A-32(c) (emphasis

added). Therefore, in the absence of a procedural rule explicitly allowing review, such

as here, the Court of Appeals should turn to the common law to aid in exercising its

discretion rather than automatically denying the petition for writ of certiorari or

requiring that the heightened standard set out in Rule 2 be satisfied.3


       Accordingly, the Court of Appeals had both the jurisdiction and the

discretionary authority to issue defendant’s writ of certiorari.                Absent specific




       3  See, e.g., Surratt v. State, 276 N.C. 725, 726, 174 S.E.2d 524, 525 (1970) (per curiam)
(stating that a particular judgment was “reviewable only by way of certiorari if the court in
its discretion chooses to grant such writ” (second italics added) (first citing State v. Lewis, 274
N.C. 438, 164 S.E.2d 177 (1968); then citing In re Croom, 175 N.C. 455, 95 S.E. 903 (1918);
and then citing 4 Strong’s North Carolina Index 2d: Habeas Corpus § 4, at 149-50 (1968)));
State v. Walker, 245 N.C. 658, 659, 97 S.E.2d 219, 220 (1957) (stating that a writ of certiorari
“may be allowed by the Court in its discretion, on sufficient showing made, but such writ is
not one to which the moving party is entitled as a matter of right” (emphasis added)), cert.
denied, 356 U.S. 946 (1958); Womble v. Moncure Mill & Gin Co., 194 N.C. 577, 579, 140 S.E.
230, 231 (1927) (“Certiorari is a discretionary writ, to be issued only for good or sufficient
cause shown . . . .” (second italics added) (first citing Waller v. Dudley, 193 N.C. 354, 137 S.E.
149 (1927); then citing People’s Bank & Tr. v. Parks, 191 N.C. 263, 131 S.E. 637 (1926); then
citing Finch v. Comm’rs of Nash Cty., 190 N.C. 154, 129 S.E. 195 (1925); and then citing State
v. Farmer, 188 N.C. 243, 124 S.E. 562 (1924))); Luther v. Seawell, 191 N.C. App 139, 142, 662
S.E.2d 1, 3 (2008) (stating that the Court of Appeals has “the authority . . . to ‘treat the
purported appeal as a petition for writ of certiorari’ and grant it in [its] discretion” (emphasis
added) (quoting State v. SanMiguel, 74 N.C. App. 276, 277-78, 328 S.E.2d 326, 328 (1985);
and then citing Guthrie v. Conroy, 152 N.C. App. 15, 19, 567 S.E.2d 403, 407 (2002))).

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                                  Opinion of the Court



statutory language limiting the Court of Appeals’ jurisdiction, the court maintains its

jurisdiction and discretionary authority to issue the prerogative writs, including

certiorari. Rule 21 does not prevent the Court of Appeals from issuing writs of

certiorari or have any bearing upon the decision as to whether a writ of certiorari

should be issued. Therefore, the Court of Appeals should exercise its discretion to

determine whether it should grant or deny defendant’s petition for writ of certiorari.

The decision of the Court of Appeals is reversed, and this case is remanded to that

court for proceedings not inconsistent with this opinion.


      REVERSED AND REMANDED.




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