An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-83
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA

      v.                                      Davidson County
                                              No. 13 CRS 728
HEATHER WINGATE MARTINEZ



      Appeal by Defendant from Judgment entered 4 June 2013 by

Judge Mark E. Klass in Davidson County Superior Court. Heard in

the Court of Appeals 23 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Teresa M. Postell, for the State.

      Mary McCullers Reece for Defendant.


      STEPHENS, Judge.


                                   Background

      On 1 February 2012, Defendant pled guilty to misdemeanor

larceny    in   Guilford     County    Superior     Court.    The    trial    court

sentenced Defendant to 120 days imprisonment, but suspended the

sentence and placed Defendant on supervised probation for 18

months. The judgment also provided that Defendant’s probation

could be transferred to Davidson County.
                                      -2-
    On 12 March 2013, Defendant’s probation officer filed a

violation     report     alleging     four      violations,   including    an

allegation    that     Defendant    violated     the   condition    that   she

“[c]ommit no criminal offense in any jurisdiction.” The trial

court conducted a probation violation hearing on 4 June 2013.

Defendant admitted the violations, and the trial court revoked

Defendant’s    probation     “for     the    willful    violation    of    the

condition[] that []she not commit any criminal offense . . . .”

The trial court also modified Defendant’s original sentence to

90 days and activated that sentence, giving Defendant credit for

2 days served. On 12 June 2013, Defendant filed a handwritten

notice of appeal without the assistance of counsel.

                                   Discussion

    As a preliminary matter, we note that Defendant’s pro se

notice of appeal violates Rule 4 of the North Carolina Rules of

Appellate Procedure. In pertinent part, Rule 4 provides that any

party entitled to appeal must do so by either (1) “giving oral

notice of appeal at trial” or (2) “filing notice of appeal with

the clerk of superior court and serving copies thereof upon all

adverse parties within fourteen days after entry of the judgment

. . . .” N.C.R. App. P. 4(a). In addition, Rule 4 requires that

a party designate “the court to which appeal is taken” in its
                                        -3-
notice of appeal. N.C.R. App. P. 4(b). Defendant’s notice of

appeal indicates that it was timely filed on 12 June 2013, but

there is no evidence such notice was served on the State. In

addition, Defendant’s notice of appeal fails to designate the

court to which appeal is taken.

      Nonetheless, this Court has held that a party’s failure to

include evidence of service with a notice of appeal is waived

when the opposing party participates without objection, as the

State has done here. State v. Ragland, __ N.C. App. __, __, 739

S.E.2d 616, 620, disc. review denied, __ N.C. __, 747 S.E.2d 548

(2013). Furthermore, “an appellant’s failure to designate this

Court in its notice of appeal is not fatal to the appeal where

the appellant’s intent to appeal can be fairly inferred and the

appellee[    is]   not    [misled]     by    the    appellant’s     mistake.”     Id.

(citation,     internal       quotation      marks,     and    certain     brackets

omitted). Plaintiff’s statement in the handwritten notice that

she   “would   like      to   appeal   [her]        sentence   of    90   days”   is

sufficient to fairly infer her intent to appeal, and the State’s

participation      indicates    that    it    was    not   misled.    Accordingly,

“[D]efendant’s failure to serve the notice of appeal and [her]

mistake in failing to name this Court in [her] notice of appeal

do not warrant dismissal.” See id.
                                        -4-
       On   appeal,    counsel    appointed     to   represent     Defendant     has

been   unable     to   identify   any   issue    with   sufficient       merit   to

support a meaningful argument for relief and asks this Court to

conduct its own review of the record for possible prejudicial

error. Counsel has shown to the satisfaction of this Court that

she has complied with the requirements of Anders v. California,

386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314

N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of her

right to file written arguments with this Court and providing

her with the documents necessary for her to do so.

       Defendant has not filed any written arguments on her own

behalf and a reasonable time within which she could have done so

has passed. In accordance with Anders, we have fully examined

the record to determine whether any issues of arguable merit

appear      to   exist.   We   have   been    unable   to   find   any   possible

prejudicial error and, therefore, conclude that this appeal is

wholly frivolous.

       NO ERROR.

       Judges HUNTER, ROBERT C., and ERVIN concur.

       Report per Rule 30(e).
