               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 400PA17

                              Filed 7 December 2018

STATE OF NORTH CAROLINA

             v.
PATTY MEADOWS



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

of the Court of Appeals, ___ N.C. App. ___, 806 S.E.2d 682 (2017), finding no error

after appeal from judgments entered on 7 and 8 April 2016 by Judge Gary M.

Gavenus in Superior Court, Madison County upon a jury verdict finding defendant

guilty following a trial before Judge R. Gregory Horne. Heard in the Supreme Court

on 2 October 2018.


      Joshua H. Stein, Attorney General, by Daniel Snipes Johnson, Special Deputy
      Attorney General, for the State.

      Michael E. Casterline for defendant-appellant.



      BEASLEY, Justice.



      This case requires the Court to consider whether Rule 10(a)(1) of the North

Carolina Rules of Appellate Procedure precludes appellate review of sentencing

arguments not raised before the sentencing court.      We conclude that defendant

waived her Eighth Amendment arguments by failing to raise them before the
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                                   Opinion of the Court



sentencing court; defendant’s nonconstitutional sentencing issues were preserved for

appellate review despite her failure to lodge a contemporaneous objection, but are

nonetheless meritless. Accordingly, we modify and affirm the decision of the Court

of Appeals. As to defendant’s ineffective assistance claim, we hold that discretionary

review was improvidently allowed.

      Following a jury trial, defendant Patty Meadows was convicted of one count

each of trafficking opium by sale, trafficking opium by delivery, and trafficking opium

by possession. All three counts arose from the same transaction, in which defendant

sold seventy-five oxycodone pills to a confidential informant. At trial, after the close

of all evidence, defendant sought emergency medical treatment, which prevented her

attendance at closing arguments and the jury charge. After deliberating for less than

an hour, the jury returned its verdict of guilty on all counts in defendant’s absence.

Noting that a defendant’s presence is required for sentencing, Judge R. Gregory

Horne continued the matter to the following day. The next day, defense counsel

produced a doctor’s note indicating that defendant was medically unable to be present

in court at that time. Judge Horne entered a written safekeeping order directing the

Sheriff of Madison County to “place the defendant . . . in the custody of the Warden

of Central Prison, Wake County, Raleigh, North Carolina for safekeeping pursuant

to [N.C.G.S. §] 162-39 until such time as [s]he is needed to face the charges held

against [her] in Court or Release Conditions have been satisfied.” After Judge Horne

entered the safekeeping order, Judge Gary M. Gavenus assumed the bench to conduct


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the administrative session scheduled for that day. Later that afternoon, defendant

was brought to court and presented to Judge Gavenus for sentencing.            Without

objection from defendant, Judge Gavenus conducted defendant’s sentencing hearing.

After hearing the State’s summary of the trial evidence and both parties’ arguments,

Judge Gavenus imposed a minimum sentence of seventy months’ imprisonment on

each count, with the sentences for two counts to be served concurrently and the third

sentence to be served consecutively to the first two.

      Defendant    appealed,    arguing   that:   (1) defendant   received   ineffective

assistance of counsel; (2) by sentencing defendant, Judge Gavenus improperly

overruled Judge Horne’s safekeeping order; (3) Judge Gavenus abused his discretion

in imposing consecutive sentences on an elderly first offender for a single drug

transaction; and (4) defendant’s sentences are grossly disproportionate to her

offenses in violation of the Eighth Amendment to the United States Constitution.

The Court of Appeals found no error in defendant’s convictions and sentences,

concluding that defendant failed to preserve arguments related to her sentencing as

required by Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure and that

defendant was not denied effective assistance of counsel. State v. Meadows, ___ N.C.

App. ___, ___, 806 S.E.2d 682, 686-96 (2017). Defendant petitioned for discretionary

review of each issue, which this Court allowed on 9 May 2018. Meadows, ___ N.C.

___, 812 S.E.2d 847 (2018)




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                                 Opinion of the Court



      Defendant’s arguments relate mostly to the sentence imposed by Judge

Gavenus. As she argued before the Court of Appeals, defendant challenges her

sentence as an abuse of discretion, an illegal overruling of one superior court judge

by another, and a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishments.

      Despite her failure to voice any objection to her sentence or the sentencing

proceedings in the trial court, defendant contends she is entitled to raise these

arguments on appeal. Before the Court of Appeals, defendant relied on a line of cases

decided by that court holding that the issue preservation requirements of Rule

10(a)(1) of the North Carolina Rules of Appellate Procedure do not apply to errors

occurring during a sentencing hearing. The Court of Appeals disagreed, concluding

that Rule 10(a)(1) applies to sentencing hearings; accordingly, the Court of Appeals

held that defendant had waived her sentencing arguments. Meadows, ___ N.C. App.

at ___, 806 S.E.2d at 689-96. Before this Court, defendant now argues that sentencing

issues are statutorily preserved by N.C.G.S. § 15A-1446(d)(18) (2017); thus, no

contemporaneous objection is required.

      Under the Constitution of North Carolina, this Court possesses “exclusive

authority to make rules of procedure and practice for the Appellate Division.” N.C.

Const. art. IV, § 13, cl. 2. Accordingly, this Court has promulgated Appellate Rule

10, which states:

             In order to preserve an issue for appellate review, a party


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               must have presented to the trial court a timely request,
               objection, or motion, stating the specific grounds for the
               ruling the party desired the court to make if the specific
               grounds were not apparent from the context. . . . Any such
               issue that was properly preserved for review by action of
               counsel taken during the course of proceedings in the trial
               tribunal by objection noted or which by rule or law was
               deemed preserved or taken without any such action,
               including, but not limited to, whether the judgment is
               supported by the verdict or by the findings of fact and
               conclusions of law, whether the court had jurisdiction over
               the subject matter, and whether a criminal charge is
               sufficient in law, may be made the basis of an issue
               presented on appeal.

N.C. R. App. P. 10(a)(1). Thus, the Appellate Rules generally require that parties

take some action to preserve an issue for appeal. Id. Exceptions exist, however,

allowing a party to raise an issue on appeal that was not first presented to the trial

court.

         This Court addressed one such scenario in State v. Canady, 330 N.C. 398, 410

S.E.2d 875 (1991). There, the defendant raised for the first time on appeal an alleged

error in the trial court’s finding of an aggravating factor to support an increased

sentence. Id. at 400, 410 S.E.2d at 877. We held that Rule 10(b)(1), the text of which

is now found in Rule 10(a)(1),1 did not apply to the case because the rule is “directed

to matters which occur at trial and upon which the trial court must be given an



        Rule 10 was amended effective 1 October 2009, and certain provisions were changed
         1

and subsections moved. Compare N.C. Rules of Appellate Procedure, 363 N.C. 902, 935-38
(2009), with N.C. Rules of Appellate Procedure, 287 N.C. 672, 698-702 (1975). Prior to the
2009 amendment, the language currently contained in subdivision (a)(1) was located in
subdivision (b)(1).

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                                      Opinion of the Court



opportunity to rule in order to preserve the question for appeal.” Id. at 401, 410

S.E.2d at 878.

       The Canady opinion has inspired a string of decisions in the Court of Appeals

holding that Rule 10(a)(1) categorically does not apply to errors committed during a

sentencing hearing. See State v. Pettigrew, 204 N.C. App. 248, 258, 693 S.E.2d 698,

704-05, appeal dismissed, 364 N.C. 439, 706 S.E.2d 467 (2010); State v. Curmon, 171

N.C. App. 697, 703-04, 615 S.E.2d 417, 422-23 (2005); State v. Hargett, 157 N.C. App.

90, 92-93, 577 S.E.2d 703, 705 (2003). To derive such a categorical rule from Canady,

however, one must ignore the opinion’s rationale. In that case, we considered the

purpose of Rule 10(a)(1): “to require a party to call the court’s attention to a matter

upon which he or she wants a ruling before he or she can assign error to the matter

on appeal.” Canady, 330 N.C. at 401, 410 S.E.2d at 878. Thus, we noted that the

rule discourages gamesmanship; a party may not simply “allow evidence to be

introduced or other things to happen during a trial as a matter of trial strategy and

then assign error to them if the strategy does not work.” Id. at 402, 410 S.E.2d at

878.   Rather than create a categorical rule, we concluded that the danger of

gamesmanship was not present in Canady and held that no contemporaneous

objection was required to preserve the issue for appellate review in that case. Id. at

402, 410 S.E.2d at 878 (“The defendant did not want the court to find the aggravating

factor, and the court knew or should have known it. This is sufficient to [preserve

the issue for appellate review].”).


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                                     Opinion of the Court



       Here, defendant requested that all three sentences be consolidated, which

would have resulted in a sentence of seventy to ninety-three months’ imprisonment.

Defense counsel argued in support of the requested sentence, noting defendant’s

advanced age, poor health, and previously clean criminal record.             After hearing

arguments, Judge Gavenus consolidated only two of the three sentences, resulting in

a 140-month minimum term of imprisonment. As in Canady, the sentencing court

“knew or should have known” defendant sought the minimum possible sentence.

Accordingly, defendant need not have voiced a contemporaneous objection to preserve

her nonconstitutional sentencing issues for appellate review.

       Defendant’s sentencing issues are also preserved by statute.            In N.C.G.S.

§ 15A-1446(d) (2017), the General Assembly enumerated a list of issues it deems

appealable without preservation in the trial court. One such issue is an argument

that “[t]he sentence imposed was unauthorized at the time imposed, exceeded the

maximum authorized by law, was illegally imposed, or is otherwise invalid as a

matter of law.”     Id. § 15A-1446(d)(18).         Although this Court has held several

subdivisions of subsection 15A-1446(d) to be unconstitutional encroachments on the

rulemaking authority of the Court,2 subdivision (18) is not one of them. In State v.


       2See State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987) (holding N.C.G.S.
§ 15A-1446(d)(5) unconstitutional because its provision that errors based on insufficiency of
evidence are reviewable without objection at trial conflicted with Appellate Rule 10(b)(3),
which prohibited a defendant from “assign[ing] as error the insufficiency of the evidence to
prove the crime charged unless he moves to dismiss the action, or for judgment as in case of
nonsuit, at trial”); State v. Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790 (1983) (holding
unconstitutional N.C.G.S. § 15A-1446(d)(13), which allowed for appellate review of errors in

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                                      Opinion of the Court



Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010), the Court explained that a

statutory provision governing the preservation of issues for purposes of appellate

review is unconstitutional only if it conflicts with a “specific provision[ ] of our

appellate rules rather than the general rule stated in Rule of Appellate Procedure

10(a).”        Because       no    such      conflict    existed,     the     Court      upheld

subdivision 15A-1446(d)(18). Accordingly, defendant’s nonconstitutional sentencing

arguments are preserved by statute.

       Nonetheless, although it was error for the Court of Appeals to decline to

address defendant’s sentencing arguments, defendant is not entitled to relief on

appeal because those arguments are meritless.

       Defendant’s argument that Judge Gavenus “overruled” Judge Horne’s

safekeeping order by sentencing her is unavailing. First, a judge other than the trial

judge may conduct a defendant’s sentencing hearing. State v. Sauls, 291 N.C. 253,

263-64, 230 S.E.2d 390, 396 (1976), cert. denied, 431 U.S. 916, 53 L. Ed. 2d 226 (1977).

Furthermore, neither the order nor Judge Horne’s oral remarks indicated that he

wished to retain jurisdiction over the matter or to delay sentencing. The order merely



the jury charge without an objection having been raised at trial, despite then-Appellate Rule
10(b)(2)’s provision to the contrary); State v. Elam, 302 N.C. 157, 159-61, 273 S.E.2d 661, 663-
64 (1981) (holding unconstitutional N.C.G.S. § 15A-1446(d)(6), which provided that a
defendant may appeal based on an argument made for the first time on appeal that the
defendant “was convicted under a statute that is in violation of the Constitution of the United
States or the Constitution of North Carolina,” although Appellate Rule 14(b)(2) required that
a constitutional challenge be “timely raised (in the trial tribunal if it could have been, in the
Court of Appeals if not)”).

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                                  Opinion of the Court



stated that defendant was to be held in custody “until such time as [she] is needed to

face the charges held against [her] in Court or Release Conditions have been

satisfied.”   From the bench, Judge Horne stated that the Department of Adult

Correction should “evaluate [defendant’s] situation until such time as sentencing can

be scheduled and entered before a court of competent jurisdiction.” (emphasis added).

Judge Horne could have, but did not, say defendant should be held “until I can

sentence her” or “until she can be brought before me for sentencing.” Instead, Judge

Horne’s oral remarks and written order indicate an awareness that defendant might

be sentenced by some other judge, so long as that judge presided over a court of

competent jurisdiction.

       Defendant’s argument that Judge Gavenus abused his discretion in sentencing

her is similarly meritless. A sentence “within the statutory limit will be presumed

regular and valid,” unless “the record discloses that the court considered irrelevant

and improper matter[s] in determining the severity of the sentence.”         State v.

Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987) (citing and quoting State v.

Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977)). Defendant here states that

Judge Gavenus must have been influenced by defendant’s decision to take her case

to trial because there is no other explanation for the harshness of the imposed

sentence.     Defendant’s conclusory accusation lacks any support in the record.

Because there is no reason to believe Judge Gavenus was influenced by irrelevant or




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                                   Opinion of the Court



improper considerations, the within-limits sentence imposed here is presumed

proper.

         Although defendant’s nonconstitutional sentencing issues are preserved

without contemporaneous objection consistent with Canady and N.C.G.S. § 15A-

1446(d), constitutional issues are not. Rule 14(b)(2) of the North Carolina Rules of

Appellate Procedure requires that a constitutional issue must have been “timely

raised (in the trial tribunal if it could have been, in the Court of Appeals if not)” as a

prerequisite to appellate review in this Court. Further, this Court has consistently

held that “[c]onstitutional questions not raised and passed on by the trial court will

not ordinarily be considered on appeal.” State v. Davis, 364 N.C. 297, 301, 698 S.E.2d

65, 67 (2010) (quoting State v. Tirado, 358 N.C. 551, 571, 599 S.E.2d 515, 529 (2004),

cert. denied sub nom. Queen v. North Carolina, 544 U.S. 909, 161 L. Ed. 2d 285

(2005)). This is true even when a sentencing issue is intertwined with a constitutional

issue.    See, e.g., id. at 301-02, 698 S.E.2d at 67 (holding that the defendant’s

constitutional double jeopardy argument was waived for failure to object at trial);

State v. Madric, 328 N.C. 223, 231, 400 S.E.2d 31, 36 (1991) (same).             Because

defendant failed to argue to the sentencing court that the sentence imposed violates

the Eighth Amendment, she may not raise that argument on appeal.

         For the reasons stated, we hold that defendant waived her Eighth Amendment

argument by failing to raise it before the sentencing court. Moreover, with regard to

defendant’s nonconstitutional sentencing arguments, we conclude that they were


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                                  Opinion of the Court



preserved for appellate review, but are meritless. Finally, we hold that discretionary

review was improvidently allowed as to defendant’s ineffective assistance claim.



      MODIFIED AND AFFIRMED IN PART; DISCRETIONARY REVIEW

IMPROVIDENTLY ALLOWED IN PART.




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