                               NO. COA13-174

                      NORTH CAROLINA COURT OF APPEALS

                          Filed: 4 February 2014


STATE OF NORTH CAROLINA

     v.                                Cumberland County
                                       No. 73 CRS 17584
LARRY STUBBS



     Appeal by the State from judgment entered 5 December 2012 by

Judge Gregory A. Weeks in Cumberland County Superior Court.      Heard

in the Court of Appeals 5 June 2013.


     Attorney General Roy Cooper, by Assistant Attorney General
     Daniel P. O’Brien, for the State.

     Sarah Jessica Farber for defendant-appellee.


     BRYANT, Judge.


     Where the trial court erred in concluding that defendant’s

sentence of life in prison with the possibility of parole was a

violation of the Eighth Amendment, we reverse and remand the trial

court order modifying defendant’s original sentence.

     On 7 May 1973, a complaint and warrant for arrest was issued

against   seventeen-year-old   defendant   Larry   Connell   Stubbs   in

Cumberland County.

           [The complainant alleged that on that day,
           defendant]   unlawfully,   willfully,  and
                                    -2-
           feloniously and burglariously [sic] did break
           and enter, at or about the hour of two o’clock
           AM in the night . . . the dwelling house of
           [the victim] located at 6697 Amanda Circle,
           Fayetteville, N.C. and then and there actually
           occupied by the said [victim], with the
           felonious intent [defendant], [sic] the goods
           and chattels of the said [victim], in the said
           dwelling house then and there being, then and
           there feloniously and burglariously [sic] to
           steal and carry away, said items stolen and
           carried away, one table lamp, one General
           Electric Record Player; one Magnus Electric
           Organ; One Portable General Electric 19”
           television set; . . . one man’s suit color
           black, the personal property of [the victim],
           and valued at $394.00.

In   addition   to   first-degree   burglary    and   felonious    larceny,

defendant was charged with and later indicted on the charge of

rape.   On 6 August 1973, defendant pled guilty to second-degree

burglary and assault with intent to commit rape.                  The State

dismissed the charge of felonious larceny.

      On the charge of second-degree burglary, the trial court

accepted   defendant’s    plea,     entered    judgment,   and    sentenced

defendant to an active term for “his natural life.”1        On the charge



1 Pursuant to N.C. Gen. Stat. ' 148-58, effective in 1973, “Time
of eligibility of prisoners to have cases considered,” “any
prisoner serving sentence for life shall be eligible [to have their
cases considered for parole] when he has served 10 years of his
sentence.”   N.C. Gen. Stat. ' 148-58 (1973) (amended in 1973,
effective 1 July 1974, to provide that the period a prisoner
sentenced to life imprisonment must serve before being eligible
for parole would be changed from ten to twenty years) (repealed
1977).
                                         -3-
of assault with intent to commit rape, the trial court sentenced

defendant to an active term of fifteen years to run concurrently

with his life sentence.

     On    11    May   2011,   defendant       filed    a   pro    se     motion   for

appropriate      relief (MAR) in the Cumberland County Superior Court

asking that his sentence of life in prison on the charge of second-

degree burglary be set aside, that he be resentenced, and after

awarding time served as credit toward the new sentence, that he be

released   from    prison.      As   a    statutory      basis     for    the   relief

requested,      defendant    cited   N.C.      Gen.    Stat.   §   15A-1415(b)(7),

“Grounds for appropriate relief which may be asserted by defendant

after verdict; limitation as to time”, and G.S. § 15A-1340.17,

“Punishment limits for each class of offense and prior record

level” pursuant to the Structured Sentencing Act codified at §§

15A-1340.10, et seq.        Defendant’s contention was that his original

sentence was grossly disproportionate to the maximum sentence he

could receive for the same crime if sentenced today.                     Sentenced to

an active term for his natural life for second-degree burglary,

defendant maintained that if he had been sentenced under the

Structured Sentencing Act, effective 1 October 1994, his term would

have been between twenty-nine and forty-four months.                        “Because

there has been a ‘significant change’ in the law,” defendant
                                     -4-
asserted that his life sentence should now be considered cruel and

unusual punishment.      Defendant petitioned the Superior Court to

resentence him based on “evolving standards of decency under the

Eighth Amendment of the United States Constitution which prohibits

cruel and unusual punishment being inflicted[,] as does [] Article

I, section 27 of the North Carolina Constitution.”             Defendant also

petitioned to proceed in forma pauperis.

     On 10 October 2011, Senior Resident Superior Court Judge

Gregory   A.   Weeks   filed   an   order    in   which   he   concluded   that

defendant’s “Motion for Appropriate Relief [was] not frivolous,

[had] merit, that a summary disposition [was] inappropriate, and

that a hearing [was] necessary.”            The court appointed the Office

of North Carolina Prisoner Legal Services to represent defendant.

     On 13 August 2012, the State filed its Memorandum Opposing

Defendant’s Motion for Appropriate Relief.           In its memorandum, the

State addressed defendant’s motion as a request for retroactive

application of the Structured Sentencing Act and a challenge to

his life sentence pursuant to the Cruel and Unusual Punishments

Clause of the Eighth Amendment to the United States Constitution.

The State maintained that defendant was not entitled to the relief

sought: the Structured Sentencing Act was applicable to criminal

offenses occurring on or after 1 October 1994; and “[t]o the extent
                                        -5-
that [] Defendant’s argument challenges his sentence pursuant to

the Cruel and Unusual Punishments Clause of the Eighth Amendment

to the United States Constitution,” Eighth Amendment jurisprudence

proscribes a different analysis than the one proposed by defendant.

The State further asserted that our State Appellate Courts have

rejected arguments similar to the one defendant presented.

         On 15 August 2012, defendant, through appointed counsel,

filed a Memorandum Supporting Defendant’s Motion for Appropriate

Relief.       Acknowledging our North Carolina Supreme Court’s holding

which declined to retroactively apply the sentencing provisions

codified         under   the   Structured    Sentencing      Act,    see    State   v.

Whitehead, 365 N.C. 444, 722 S.E.2d 492 (2012), defendant asserted

that he was entitled to relief “because his sentence of Life

Imprisonment for his conviction of Second Degree Burglary in 1973

is   unconstitutionally          excessive     under    evolving      standards     of

decency and the Eighth Amendment to the United States Constitution

.    .    .   and    Article    I,   Section    27     of    the    North    Carolina

Constitution.”           Defendant   asserted    that       “[t]o   gauge    evolving

standards of decency, the [United States] Supreme Court looks to

legislative changes and enactments.”             Defendant also asserted that

“[t]he [Structured Sentencing Act] is the most current expression

of       North    Carolina’s     assessment     of     appropriate     and     humane
                               -6-
sentences, and [] is an objective index of sentence proportionality

for Eighth Amendment analysis purposes.”   “As of today, Defendant

has served nearly forty years in prison for his Second Degree

Burglary conviction. This is nearly ten times the length of time

that any defendant could be ordered to serve today.”     Defendant

contended that his sentence was excessive, that it violated the

United States Constitution and the North Carolina Constitution

“making it necessary to vacate Defendant’s life sentence and to

resentence him to a term of years that is not disproportionate,

cruel, or unusual.”

     Following a 13 August 2012 hearing, the trial court on 5

December 2012 entered an order in which it found that on 6 August

1973, defendant pled guilty to second-degree burglary and assault

with intent to commit rape.   Defendant had been sentenced to life

in prison for second-degree burglary along with a concurrent

sentence of fifteen years imprisonment for assault with intent to

commit rape.   Defendant completed his sentence for assault with

intent to commit rape in 1983 and was currently incarcerated solely

for his second-degree burglary conviction.     “As of 30 November

2012, [defendant] has been in the custody of the North Carolina

Department of Public Safety for this crime for more than thirty-

six years.” The court found that defendant was paroled in December
                                   -7-
2008 and that while on parole, he was charged with and convicted

of   driving   while   impaired.     Subsequent   to   his   conviction,

defendant’s parole status was revoked, and he was returned to

incarceration.    The trial court concluded that under “evolving

standards, [defendant’s] sentence violated the Eighth Amendment

and is invalid as a matter of law.”         The trial court granted

defendant’s motion for appropriate relief and vacated the judgment

entered 6 August 1973 as to the second-degree burglary conviction,

resentencing defendant to a term of thirty years.        Defendant was

given credit for 13,652 days spent in confinement. The trial court

further ordered that the North Carolina Department of Public Safety

Division of Adult Correction release defendant immediately.

      The State filed with this Court petitions for a writ of

certiorari to review the 5 December 2012 trial court order and a

writ of supersedeas to stay imposition of the trial court’s order

pending appeal.    Both petitions were granted.2



2 We acknowledge with appreciation the responsiveness of the State
and defense counsel in providing this Court with memoranda of
additional authority regarding a question presented by this Court
at oral argument reflecting on our jurisdiction to hear this
appeal. We also note that because one panel of this Court has
previously decided the jurisdictional issue by granting the
State’s petition for a writ of certiorari to hear the appeal, we
cannot overrule that decision. N.C.N.B. v. Virginia Carolina
Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 631-32 (1983) (“[O]nce
a panel of the Court of Appeals has decided a question in a given
case that decision becomes the law of the case and governs other
                               -8-
                   _______________________________

     On appeal, the State brings forth the issue of whether the

Superior Court erred by ruling that defendant’s 1973 sentence of

life imprisonment with the possibility of parole for a second-

degree burglary conviction is now in violation of the Eighth

Amendment to the United States Constitution, vacating defendant’s

1973 judgment, and resentencing him.   The State argues on appeal

that (A) the trial court lacked jurisdiction over the original

judgment and (B) that it incorrectly interpreted the precedent of

the Supreme Court of the United States.

     “Our review of a trial court's ruling on a defendant's MAR is

‘whether the findings of fact are supported by evidence, whether

the findings of fact support the conclusions of law, and whether

the conclusions of law support the order entered by the trial

court.’”   State v. Peterson, ___ N.C. App. ___, ___, 744 S.E.2d




panels which may thereafter consider the case. Further, since the
power of one panel of the Court of Appeals is equal to and
coordinate with that of another, a succeeding panel of that court
has no power to review the decision of another panel on the same
question in the same case. Thus the second panel in the instant
case had no authority to exercise its discretion [against]
reviewing the trial court's order when a preceding panel had
earlier decided to the contrary.”). However, a separate concurring
and a separate dissenting opinion further address the issue of
jurisdiction to hear this appeal.
                                 -9-
153, 157 (2013) (quoting State v. Stevens, 305 N.C. 712, 720, 291

S.E.2d 585, 591 (1982)).

                                       A

     The State argues that the trial court lacked jurisdiction

over the original judgment.    Specifically, the State contends that

defendant’s motion for appropriate relief was made pursuant to

N.C. Gen. Stat. § 15A-1415 but that no provision of section 15A-

1415 granted the trial court jurisdiction to modify the original

sentence.   We disagree.

     A trial court loses jurisdiction to modify a defendant’s

sentence, “subject to limited exceptions, after the adjournment of

the session of court in which [the] defendant receive[s] this

sentence[,] [a]lthough a trial court may properly modify a sentence

after the trial term upon submission of a [Motion for Appropriate

Relief (MAR)][.]”   Whitehead, 365 N.C. at 448, 722 S.E.2d at 495

(citations omitted).       Section 15A-1415 of the North Carolina

General Statutes lists “the only grounds which the defendant may

assert by a motion for appropriate relief made more than 10 days

after entry of judgment[.]”    N.C. Gen. Stat. § 15A-1415(b) (2011).

     At the 13 August 2012 hearing on defendant’s MAR, defendant

contended that he was entitled to relief pursuant to N.C. Gen.

Stat. § 15A-1415(b)(8).     In its 5 December 2012 order, the trial
                                      -10-
court concluded that its authority over the 6 August 1973 judgment

was allowed pursuant to N.C.G.S. § 15A-1415(b)(4) & (b)(8).

         Pursuant to General Statutes, section 15A-1415, a defendant

may assert by MAR made more than ten days after entry of judgment

the following grounds:

              (4) The defendant was convicted or sentenced
              under a statute that was in violation of the
              Constitution of the United States or the
              Constitution of North Carolina.

              . . .

              (8) The sentence imposed was unauthorized at
              the time imposed, contained a type of sentence
              disposition or a term of imprisonment not
              authorized for the particular class of offense
              and prior record or conviction level was
              illegally imposed, or is otherwise invalid as
              a matter of law.

N.C.G.S. § 15A-1415(b)(4) & (b)(8).

         The gravamen of the argument presented in defendant’s MAR

submitted to the trial court is that because “his sentence of Life

Imprisonment for his conviction of Second Degree Burglary in 1973

is   unconstitutionally       excessive      under    evolving    standards   of

decency and the Eighth Amendment to the United States Constitution

.    .    .   and   Article   I,   Section    27     of   the   North   Carolina

Constitution,” the trial court had jurisdiction over the 6 August

1973     judgment     to   consider   whether      defendant’s    sentence    was

“invalid as a matter of law.”         N.C.G.S. § 15A-1415(b)(8); see also
                                        -11-
N.C.G.S. ' 15A-1415(b)(4).          We agree and therefore, overrule the

State’s challenge to the trial court’s jurisdiction.

                                          B

      The State further contends that the trial court misapplied

United States Supreme Court precedent, applying the wrong test to

determine whether an Eighth Amendment violation has occurred.                         We

agree in part.

      The Eighth Amendment to the United States Constitution states

that “[e]xcessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted[,]”                            U.S.

Const. amend. VIII, and is made applicable to the States by the

Fourteenth Amendment, id. amend. XIV.               The Constitution of North

Carolina     similarly   states,        “[e]xcessive       bail     shall     not    be

required,    nor    excessive    fines    imposed,       nor   cruel    or    unusual

punishments inflicted.”         N.C. Const. art. I, § 27.              Despite the

difference between the two constitutions, one prohibiting “cruel

and   unusual       punishments,”       the      other     “cruel      or     unusual

punishments,” “[our North Carolina Supreme Court] historically has

analyzed    cruel    and/or     unusual       punishment   claims      by    criminal

defendants     the    same      under     both     the     federal      and     state

Constitutions.”       State v. Green, 348 N.C. 588, 603, 502 S.E.2d

819, 828 (1998) (citations omitted), superseded by statute on other
                                -12-
grounds as stated in In re J.L.W., 136 N.C. App. 596, 525 S.E.2d

500 (2000).

     “The basic concept underlying the Eighth Amendment is nothing

less than the dignity of man. . . .    [T]he words of the Amendment

are not precise, and [] their scope is not static. The Amendment

must draw its meaning from the evolving standards of decency that

mark the progress of a maturing society.”       Trop v. Dulles, 356

U.S. 86, 100-01, 2 L. Ed. 2d 630, 642 (1958) (citation omitted).

“The [Eighth] Amendment embodies broad and idealistic concepts of

dignity, civilized standards, humanity, and decency . . . , against

which we must evaluate penal measures.”      Estelle v. Gamble, 429

U.S. 97, 102-03, 50 L. Ed. 2d 251, 259 (1976) (citation and

quotations omitted).

     In Estelle v. Gamble, the United States Supreme Court observed

that when the Court initially applied the Eight Amendment, the

challenged punishments regarded methods of execution. Id. at 102,

50 L. Ed. 2d at 258.   However, “the Amendment proscribes more than

physically barbarous punishments.”     Id. at 102, 50 L. Ed. 2d 259.

               To determine whether a punishment is
          cruel and unusual, courts must look beyond
          historical   conceptions   to   the   evolving
          standards of decency that mark the progress of
          a maturing society. This is because the
          standard of extreme cruelty is not merely
          descriptive, but necessarily embodies a moral
          judgment. The standard itself remains the
                              -13-
         same, but its applicability must change as the
         basic mores of society change.

Graham v. Florida, 560 U.S. 48, 58, 176 L. Ed. 2d 825, 835 (2010)

(citations, quotations, and bracket omitted).

         [T]he Eighth Amendment's protection against
         excessive or cruel and unusual punishments
         flows from the basic precept of justice that
         punishment for a crime should be graduated and
         proportioned to the offense. Whether this
         requirement has been fulfilled is determined
         not by the standards that prevailed when the
         Eighth Amendment was adopted in 1791 but by
         the   norms  that   currently   prevail.   The
         Amendment draws its meaning from the evolving
         standards of decency that mark the progress of
         a maturing society.

Kennedy v. Louisiana, 554 U.S. 407, 419, 171 L. Ed. 2d 525, 538

(citations and quotations omitted) opinion modified on denial of

reh'g, 554 U.S. 945, 171 L. Ed. 2d 932 (2008).

         The concept of proportionality is central to
         the Eighth Amendment. . . .

         The    Court’s     cases     addressing    the
         proportionality of sentences fall within two
         general classifications. The first involves
         challenges to the length of term-of-years
         sentences given all the circumstances in a
         particular case. The second comprises cases in
         which the Court implements the proportionality
         standard by certain categorical restrictions
         on the death penalty.

Graham, 560 U.S. at 59, 176 L. Ed. 2d at 835-36.

    As to the first classification, in which the Court considers

whether a term-of-years sentence is unconstitutionally excessive
                                                  -14-
given the circumstances of a case, the Court noted that “it has

been    difficult            for     [challengers]         to       establish       a       lack     of

proportionality.”                 Id. at 59, 176 L. Ed. 2d at 836.               Referring to

Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836 (1991), as

a leading case on the review of Eighth Amendment challenges to

term-of-years            sentences       as      disproportionate,         Justice           Kennedy

delivering         the       opinion     of      the   Graham   Court      acknowledged              his

concurring opinion in Harmelin: “[T]he Eighth Amendment contains

a   ‘narrow        proportionality            principle,’       that    ‘does    not         require

strict proportionality between crime and sentence’ but rather

‘forbids           only           extreme        sentences          that      are           “grossly

disproportionate” to the crime.’” Graham, 560 U.S. at 59-60, 176

L. Ed. 2d at 836 (quoting Harmelin, 501 U.S. at 997, 1000–1001,

115    L.   Ed.     2d       at    836   (Kennedy,       J.,    concurring      in          part     and

concurring in judgment)).                   Accord Rummel v. Estelle, 445 U.S. 263,

288, 63 L. Ed. 2d 382 (1980) (Powell, J., dissenting (The scope of

the    Cruel       and    Unusual        Punishments       Clause      extends          .    .   .   to

punishments that are grossly disproportionate. Disproportionality

analysis       .    .    .    focuses       on    whether,      a    person   deserves             such

punishment . . . .                A statute that levied a mandatory life sentence

for overtime parking might well deter vehicular lawlessness, but

it would offend our felt sense of justice. The Court concedes today
                                    -15-
that the principle of disproportionality plays a role in the review

of sentences imposing the death penalty, but suggests that the

principle may be less applicable when a noncapital sentence is

challenged.”)).

       In Harmelin, 501 U.S. 957, 115 L. Ed. 2d 836, the defendant

challenged his sentence of life in prison without possibility of

parole on the grounds that it was “significantly” disproportionate

to his crime, possession of 650 or more grams of cocaine.               The

defendant further argued that because the sentence was mandatory

upon conviction, it amounted to cruel and unusual punishment as it

precluded consideration of individual mitigating circumstances.

Id. at 961, 115 L. Ed. 2d at 843 n.1.        In an opinion delivered by

Justice Scalia, a majority of the Court held that the sentence was

not cruel and unusual punishment solely because it was mandatory

upon   conviction.       In   addressing   the   defendant’s   alternative

argument, that his sentence of life in prison without possibility

of parole was significantly disproportionate to his crime of

possessing 650 or more grams of cocaine, a majority of the Court

concluded that the defendant’s sentence did not run afoul of the

Eighth Amendment; however, the Court revealed varied views as to

whether   the   Eighth    Amendment   includes    a   protection    against

disproportionate sentencing and if so, to what extent.             See also
                                  -16-
Ewing v. California, 538 U.S. 11, 155 L. Ed. 2d 108 (2003) (holding

that the defendant’s sentence of twenty-five years to life for

felony grand theft under California’s “three strikes and you’re

out” law did not violate the Eighth Amendment’s prohibition on

cruel and unusual punishments).       Cf. Solem v. Helm, 463 U.S. 277,

77 L. Ed. 2d 637 (1983) (holding that South Dakota’s sentence of

life without possibility of parole for uttering a “no account”

check after the defendant had previously been convicted of six

non-violent   felonies    was   disproportionate     to   his   crime   and

prohibited by the Eighth Amendment).

      We return our attention to Graham v. Florida which sets out

the second classification of Eighth Amendment             proportionality

challenges as “implement[ing] the proportionality standard by

certain categorical restrictions on the death penalty.”            Graham,

560 U.S. at 59, 176 L. Ed. 2d at 836.      But, rather than a challenge

to a capital sentence, the Graham Court was presented with a

categorical challenge to a term-of-years sentence: whether the

imposition of life in prison without the possibility of parole for

a   nonhomicide   crime   committed   by   a   sixteen-year-old   juvenile

offender violated the Eighth Amendment.           In its reasoning, the

Court made the following observation:

           [L]ife without parole is the second most
           severe penalty permitted by law. . . . [L]ife
                                      -17-
            without   parole    sentences   share    some
            characteristics with death sentences that are
            shared by no other sentences. . . . [T]he
            sentence alters the offender's life by a
            forfeiture that is irrevocable. It deprives
            the convict of the most basic liberties
            without giving hope of restoration, except
            perhaps by executive clemency—the remote
            possibility of which does not mitigate the
            harshness of the sentence.

Id. at 69-70, 176 L. Ed. 2d at 842.           The Court concluded that the

severity of a sentence imposing life without parole for a person

who   was   a   juvenile   at   the   time   his   nonhomicide   offense   was

committed is a sentencing practice that is cruel and unusual.              Id.

at 74, 176 L. Ed. 2d at 845.          However, the Court went on to note

that this sentencing preclusion may not lessen the duration of a

sentence.

            A State is not required to guarantee eventual
            freedom to a juvenile offender convicted of a
            nonhomicide crime. What the State must do,
            however, is give [the] defendant[] . . . some
            meaningful opportunity to obtain release based
            on demonstrated maturity and rehabilitation.
            It is for the State, in the first instance, to
            explore   the   means   and   mechanisms   for
            compliance. It bears emphasis . . . that while
            the Eighth Amendment forbids a State from
            imposing a life without parole sentence on a
            juvenile nonhomicide offender, it does not
            require the State to release that offender
            during his natural life.    . . . The Eighth
            Amendment does not foreclose the possibility
            that persons convicted of nonhomicide crimes
            committed before adulthood will remain behind
            bars for life.
                               -18-
Id. at 75, 176 L. Ed. 2d at 845-46 (emphasis added).

     As a means of obtaining release from incarceration, our North

Carolina General Assembly has created by statute a Post-Release

Supervision and Parole Commission.     N.C. Gen. Stat. ' 143B-720

(2011). With the exception of those sentenced under the Structured

Sentencing Act, the Commission has “authority to grant paroles .

. . to persons held by virtue of any final order or judgment of

any court of this State . . . .”   Id. ' 143B-720(a).   Furthermore,

the Commission is to assist the Governor and perform such services

as the Governor may require in exercising his executive clemency

powers.   Id.   We note that in State v. Whitehead, 365 N.C. 444,

722 S.E.2d 492 (2012), a case reviewing the retroactive application

of a less severe sentencing statute, our Supreme Court also drew

attention to the powers of the Post-Release Supervision and Parole

Commission.

          In 2005, 2007, 2009, and 2011, the General
          Assembly     directed     the     Post–Release
          Supervision and Parole Commission to determine
          whether inmates sentenced under previous
          sentencing standards have served more time in
          custody than they would have served if they
          had received the maximum sentence under the
          SSA.   [Defendant’s sentence appears to fall
          within the purview of this directive.]. . . In
          addition,    wholly    independent   of    the
          Commission's grant of authority, the state
          constitution empowers the Governor to “grant
          reprieves, commutations, and pardons, after
          conviction, for all offenses ... upon such
                                     -19-
           conditions as he may think               proper.”   N.C.
           Const. art. III, § 5(6).

Id. at 448, 722 S.E.2d at 496 n.1 (emphasis added).3

      The Whitehead Court considered a trial court order granting

a   defendant’s   MAR   requesting    that    his    life   sentence   imposed

following a guilty plea entered 29 July 1994 and imposed pursuant

to the Fair Sentencing Act for a homicide occurring 25 August 1993

be modified by retroactively applying the sentencing provisions of

the Structured Sentencing Act applicable to offenses committed on

or after 1 October 1994.     Id.     Vacating and remanding the judgment

and order of the trial court, our Supreme Court stated that

“[c]riminal sentences may be invalidated for cognizable legal

error demonstrated in appropriate proceedings. But, in the absence

of legal error, it is not the role of the judiciary to engage in

discretionary sentence reduction.”          Id. at 448, 722 S.E.2d at 496.

      In the matter before us, we note that on 7 May 1973, the date

of the offense for which defendant was charged with committing the

offense of second-degree burglary, he was seventeen years old.4



3 While this quote from Whitehead, 365 N.C. at 448, 722 S.E.2d at
496 n.1, is a footnote, we think it is relevant to the instant
case wherein defendant, like the defendant in Whitehead, was
sentenced under a “previous sentencing standard,” and defendant
would have fallen within the directives of the Parole Commission.

4 At the time of his offense, North Carolina General Statutes,
Chapter 7A, Article 23, entitled “Jurisdiction and Procedure
                                      -20-
On 6 August 1973, the date defendant pled guilty to second-degree

burglary, defendant was eighteen.              Defendant was sentenced to

incarceration for “his natural life.”             Pursuant to our General

Statutes in effect at that time, any prisoner serving a life

sentence was eligible to have his case considered for parole after

serving ten years of his sentence.           N.C.G.S. ' 148-58.     The record

is not clear how often defendant was considered for parole.

However,     after   serving   over   thirty-five    years,    defendant   was

paroled in December 2008.         In 2010, defendant was convicted of

driving while impaired.        He was sentenced and served 120 days in

jail.    Thereafter, his parole was revoked and his life sentence

reinstated.

       “[L]ife imprisonment with possibility of parole is [] unique

in that it is the third most severe [punishment].”              Harmelin, 501

U.S. at 996, 115 L. Ed. 2d at 865.            Nevertheless, in the body of

case law involving those who commit nonhomicide criminal offenses

even    as   juveniles,    sentences     allowing     for     the   “realistic

opportunity to obtain release before the end of [a life] term” do

not violate the prohibitions of the Eighth Amendment.               Graham, 560




Applicable to Children,” defined “Child” as “any person who has
not reached his sixteenth birthday.” N.C. Gen. Stat. ' 7A-278(1)
(1973). As defendant was seventeen at the time of his offense, he
did not come within the aegis of the Chapter 7A, Article 23.
                                        -21-
U.S. at 82, 176 L. Ed. 2d at 850.          Defendant’s sentence allows for

the realistic opportunity to obtain release before the end of his

life.    In fact, defendant was placed on parole in December 2008

prior to his 2010 conviction for the offense of driving while

impaired,     which   led   to    the     revocation   of   his   parole   and

reinstatement of his life sentence.            As our Supreme Court has not

indicated a preference for discretionary sentence reduction, see

Whitehead, 365 N.C. at 448, 722 S.E.2d at 496 (“[I]t is not the

role    of   the   judiciary     to   engage   in   discretionary    sentence

reduction.”), and our General Assembly has directed the Post–

Release Supervision and Parole Commission to review matters of

proportionality, see N.C.G.S. ' 143B-720; Whitehead, 365 N.C. at

449, 722 S.E.2d at 496 n.1, we hold that the trial court erred in

concluding defendant’s life sentence violated the prohibitions of

the Eighth Amendment to the United States Constitution. See Rummel

v. Estelle, 445 U.S. 263, 283-84, 63 L. Ed. 2d 382, 397 (1980)

(“Perhaps . . . time works changes upon the Eighth Amendment,

bringing into existence new conditions and purposes. We all, of

course, would like to think that we are moving down the road toward

human decency. Within the confines of this judicial proceeding,

however, we have no way of knowing in which direction that road

lies. Penologists themselves have been unable to agree whether
                                     -22-
sentences should be light or heavy, discretionary or determinate.

This uncertainty reinforces our conviction that any nationwide

trend toward lighter, discretionary sentences must find its source

and its sustaining force in the legislatures, not in the []

courts.” (citations and quotations omitted)).           It should be stated

that   by   all   accounts   based   on    today’s   sentencing   standards,

defendant’s sentence cannot be viewed as anything but severe.

Since 1973 at the age of eighteen, defendant has been incarcerated

for all but less than two years.          There is no record of an appeal

from the 1973 conviction, and the record before us does not provide

details of the circumstances which led to defendant’s arrest or

the injury to the victim.        Regardless, we must address only what

is, as opposed to what is not, before us.              Upon review of the

arguments    presented   and    cases     cited,   defendant’s    outstanding

sentence of life in prison with possibility of parole for second-

degree burglary, though severe, is not cruel or unusual in the

constitutional sense.        See Green, 348 N.C. at 603, 502 S.E.2d at

828. Accordingly, we reverse the Superior Court’s 5 December order

modifying defendant’s original sentence and remand to the trial

court for reinstatement of the original 6 August 1973 judgment and

commitment.

       Reversed and remanded.
                          -2-
Judge DILLON concurs by separate opinion.

Judge STEPHENS dissents by separate opinion.
                                   NO. COA13-174

                      NORTH CAROLINA COURT OF APPEALS

                            Filed: 4 February 2014


STATE OF NORTH CAROLINA


     v.                                     Cumberland County
                                            No. 73 CRS 17584
LARRY STUBBS


     DILLON, Judge, concurring in separate opinion.

     I agree with the majority opinion.                However, I write to

address   the   jurisdiction   question      raised    by   the     parties   and

discussed in footnote 2 of the majority opinion.                  I believe that

the “law of the case” principle, referenced in that footnote,

generally compels a panel of this Court to follow the decisions of

another panel made in the same case.             However, I do not believe a

panel is compelled to follow the “law of the case” where the issue

concerns subject matter jurisdiction. See McAllister v. Cone Mills

Corporation,    88   N.C.   App.    577,   364    S.E.2d    186    (1988).    In

McAllister we held that a superior court judge had the authority

to determine whether it had subject matter jurisdiction to consider

a matter after another superior court judge, in a prior hearing,

had denied a motion to dismiss the matter based on lack of subject

matter jurisdiction, stating that “[i]f a court finds at any stage

of the proceedings that it lacks jurisdiction over the subject
                                      -2-
matter   of   a   case,   it   must   dismiss   the   case   for   want   of

jurisdiction.”     Id. at 579, 364 S.E.2d at 188.            Therefore, I

believe we are compelled to make a determination whether the panel

of this Court which granted the State’s petition for writ of

certiorari – which is the basis for our panel’s jurisdiction - had

the authority to do so.

     The North Carolina Constitution states that this Court has

appellate jurisdiction “as the General Assembly may prescribe.”

N.C. Const. Article IV, Section 12(2).          Our General Assembly has

prescribed that this Court has jurisdiction “to issue . . .

prerogative writs, including . . . certiorari . . . to supervise

and control the proceedings of any of the trial courts. . . .”

N.C. Gen. Stat. § 7A-32(c) (2011).5         The General Assembly further

has prescribed that the “practice and procedure” by which this

Court exercises its jurisdiction to issue writs of certiorari is

provided, in part, by “rule of the Supreme Court.”                 Id.    The

Supreme Court has enacted the Rules of Appellate Procedure, which

includes Rule 21, providing that writs of certiorari may be issued

by either this Court or the Supreme Court in three specific



5 This language employed by the General Assembly is similar to the
language in our Constitution defining the jurisdictional limits of
our Supreme Court, which includes the authority of “general
supervision and control over the proceedings of the other courts.”
N.C. CONST. art. IV, § 12(1).
                                     -3-
circumstances, none of which applies to the State’s appeal in this

case.

      Defendant argues that the subject matter jurisdiction of this

Court   to   issue   writs   of   certiorari   is   limited   to   the   three

circumstances listed in Rule 21.        The State argues that Rule 21 is

not intended to limit the subject matter jurisdiction of this Court

but is simply a “rule” establishing a “practice and procedure,”

and that Rule 2 – which allows this Court to “suspend or vary the

requirements of any of these rules” – provides an avenue by which

this Court may exercise the jurisdiction granted by the General

Assembly in N.C. Gen. Stat. § 7A-32 to issue writs of certiorari

for matters not stated in Rule 21.         There is language in decisions

of this Court which suggests that our authority to grant writs of

certiorari is limited to the three circumstances described in Rule

21.   See, e.g., State v. Pimental, 153 N.C. App. 69, 77, 568 S.E.2d

867, 872 (2002) (dismissing a petition for writ of certiorari,

stating that since the appeal was not within the scope of Rule 21,

this Court “does not have the authority to issue a writ of

certiorari”).    However, there is language in other decisions which

suggests that this Court may invoke Rule 2 to consider writs of

certiorari in circumstances not covered by Rule 21.                See, e.g.,

State v. Starkey, 177 N.C. App. 264, 268, 628 S.E.2d 424, 426
                                    -4-
(2006) (denying a petition for writ of certiorari by refusing to

invoke Rule 2).

      I believe that our approach in Starkey – suggesting that our

subject matter jurisdiction to issue writs of certiorari is not

limited to the circumstances contained in Rule 21 – is correct.

Our Supreme Court and this Court has recognized the authority of

our appellate courts to issue writs of certiorari in circumstances

not contained in Rule 21.      See, e.g., State v. Bolinger, 320 N.C.

596, 601-02, 359 S.E.2d 459, 462 (1987) (holding that a defendant

may obtain appellate review through a writ of certiorari to

challenge the procedures followed in accepting a guilty plea,

notwithstanding that the defendant does not have the statutory

right to appellate review); see also State v. Carriker, 180 N.C.

App. 470, 471, 637 S.E.2d 557, 558 (2006) (holding that a challenge

to   procedures    in   accepting   a   guilty   plea   is   reviewable   by

certiorari).      Additionally, in Rule 1 of the Rules of Appellate

Procedure, our Supreme Court stated that the appellate rules “shall

not be construed to extend or limit the jurisdiction of the courts

of the appellate division[.]”       Id.

      Accordingly, I believe that the panel of this Court which

considered the State’s petition for a writ of certiorari had the

authority to grant the writ, notwithstanding that an appeal by the
                               -5-
State from an order granting a defendant’s motion for appropriate

relief is not among the circumstances contained in N.C.R. App. P.

21; and, therefore, we are bound by the decision of that panel.
                                  NO. COA13-174

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 4 February 2014


STATE OF NORTH CAROLINA

     v.                                       Cumberland County
                                              No. 73 CRS 17584
LARRY STUBBS



     STEPHENS, Judge, dissenting.


     Because   I    believe    that    this   Court   lacks   subject   matter

jurisdiction   to   review     the    State’s   arguments,    I   respectfully

dissent.

     In support of its determination that this panel is bound by

the decision of a petition panel of this Court that we have subject

matter jurisdiction to grant the State’s petition for writ of

certiorari, the majority cites our Supreme Court’s opinion in North

Carolina Nat. Bank v. Virginia Carolina Builders, 307 N.C. 563,

567, 299 S.E.2d 629, 631-32 (1983) (“[O]nce a panel of the Court

of Appeals has decided a question in a given case that decision

becomes the law of the case and governs other panels which may

thereafter consider the case.           Further, since the power of one

panel of the Court of Appeals is equal to and coordinate with that

of another, a succeeding panel of that court has no power to review
                                     -2-
the decision of another panel on the same question in the same

case.    Thus the second panel in the instant case had no authority

to exercise its discretion in favor of reviewing the trial court’s

order    when   a    preceding   panel     had   earlier   decided   to   the

contrary.”).        In my view, Virginia Carolina Builders is clearly

distinguishable from the issue presented in the case at bar because

it concerned a Court of Appeals panel’s reconsideration of a prior

panel’s exercise of discretion, rather than a question regarding

this Court’s subject matter jurisdiction over a matter.

      In Virginia Carolina Builders, the appellant sought review of

an interlocutory order.          Id. at 565, 299 S.E.2d at 630.           The

appellant gave notice of appeal from the order, but prior to filing

the record with this Court, he petitioned for writ of certiorari.

Id.   A panel of this Court denied that petition.          Id.    Thereafter,

the appellant filed the record on appeal with this Court and

presented arguments on the merits of his claims.            Id.    Two judges

of a second panel of this Court, to whom the appeal was assigned,

recognized that the order appealed from was interlocutory and would

ordinarily be nonappealable, but nonetheless elected to reach the

merits in their “discretion[.]”          Id. at 565, 299 S.E.2d at 630-

31.     Based on the dissent of one judge who would have dismissed

the appeal, the appellees sought review as a matter of right in
                                -3-
the Supreme Court.   Id. at 565-66, 299 S.E.2d at 631.

    The Supreme Court stated:

         Although   we   have  never   considered   the
         question, well-established analogies in our
         law lead us to conclude that the second panel
         of the Court of Appeals was without authority
         to overrule the first on the same question in
         the same case. Once an appellate court has
         ruled on a question, that decision becomes the
         law of the case and governs the question not
         only on remand at trial, but on a subsequent
         appeal of the same case. At the trial level
         the well[-]established rule in North Carolina
         is that no appeal lies from one Superior Court
         judge to another; that one Superior Court
         judge may not correct another’s errors of law;
         and that ordinarily one judge may not modify,
         overrule, or change the judgment of another
         Superior Court judge previously made in the
         same action. The power of one judge of the
         superior court is equal to and coordinate with
         that of another, and a judge holding a
         succeeding term of court has no power to
         review a judgment rendered at a former term on
         the ground that the judgment is erroneous.

         Applying these principles to the question
         before us, we conclude that once a panel of
         the Court of Appeals has decided a question in
         a given case that decision becomes the law of
         the case and governs other panels which may
         thereafter consider the case. Further, since
         the power of one panel of the Court of Appeals
         is equal to and coordinate with that of
         another, a succeeding panel of that court has
         no power to review the decision of another
         panel on the same question in the same case.
         Thus the second panel in the instant case had
         no authority to exercise its discretion in
         favor of reviewing the trial court’s order
         when a preceding panel had earlier decided to
         the contrary.
                                     -4-


           Our decision on this point in no way impinges
           on the power of this Court or the Court of
           Appeals to change its ruling upon a motion to
           rehear, or on the court’s own motion, if the
           court determines that its former ruling was
           clearly erroneous. In the case of the Court
           of Appeals, however, such a change must be
           made, if at all, by the same panel which
           initially decided the matter.     Otherwise, a
           party against whom a decision was made by one
           panel of the Court of Appeals could simply
           continue to press a point in that court hoping
           that some other panel would eventually decide
           it favorably, as indeed the plaintiff did in
           this case; and we would not have that orderly
           administration of the law by the courts, which
           litigants have a right to expect.

Id. at 566-67, 299 S.E.2d at 631-32 (citations, internal quotation

marks, and some brackets omitted).

     I   fully   agree   that   in   matters   such   as    the   exercise   of

discretion, factual determinations, and legal rulings, one panel

of this Court cannot overrule another.           However, I believe that

determination of subject matter jurisdiction presents a different

situation, one to which the analysis of Virginia Carolina Builders

plainly does not apply.     “Characterizing a rule as jurisdictional

renders it unique in our adversarial system.”              Sebelius v. Auburn

Reg’l Med. Ctr., __ U.S. __, __, 184 L. Ed. 2d 627, 637 (2013)

(noting that “[o]bjections to a tribunal’s jurisdiction can be

raised at any time, even by a party that once conceded the

tribunal’s subject-matter jurisdiction over the controversy”).
                                    -5-
“Subject[]matter jurisdiction defines the court’s authority to

hear a given type of case[.]”        United States v. Morton, 467 U.S.

822, 828, 81 L. Ed. 2d 680, 688 (1984).           A “lack of jurisdiction

of the subject matter may always be raised by a party, or the court

may raise such defect on its own initiative.”          Dale v. Lattimore,

12 N.C. App. 348, 352, 183 S.E.2d 417, 419, cert. denied, 279 N.C.

619, 184 S.E.2d 113 (1971).       “If a court finds at any stage of the

proceedings that it lacks jurisdiction over the subject matter of

a case, it must dismiss the case for want of jurisdiction.”

McAllister v. Cone Mills Corp., 88 N.C. App. 577, 579, 364 S.E.2d

186, 188 (1988) (emphasis added) (citing Burgess v. Gibbs, 262

N.C. 462, 465, 137 S.E. 2d 806, 808 (1964) (“[T]he proceedings of

a court without jurisdiction of the subject matter are a nullity.

If a court finds at any stage of the proceedings it is without

jurisdiction, it is its duty to take notice of the defect and stay,

quash or dismiss the suit.    This is necessary, to prevent the court

from being forced into an act of usurpation, and compelled to give

a void judgment.    So, ex necessitate, the court may, on plea,

suggestion,   motion,   or   ex    mero   motu,    where   the   defect   of

jurisdiction is apparent, stop the proceeding.”) (citation and

internal quotation marks omitted)).          Further, “parties cannot

stipulate to give a court subject matter jurisdiction where no
                                     -6-
such    jurisdiction    exists.”     Northfield    Dev.    Co.    v.   City    of

Burlington, 165 N.C. App. 885, 887, 599 S.E.2d 921, 924 (citation

omitted), disc. review denied, 359 N.C. 191, 607 S.E.2d 278 (2004).

       My careful review of our State’s statutory and case law

reveals that this Court lacks subject matter jurisdiction to

consider the State’s arguments via review of a trial court’s

allowance of a motion for appropriate relief (“MAR”) or by issuance

of a writ of certiorari.

       In State v. Starkey, immediately after entering judgment on

a jury’s verdict, the trial court entered an order sua sponte

granting its own MAR regarding the defendant’s sentence.               177 N.C.

App. 264, 266, 628 S.E.2d 424, 425, cert denied, __ N.C. __, 636

S.E.2d 196 (2006).        The trial court found that the defendant’s

sentence violated “his rights under the Eighth and Fourteenth

Amendments to the United States Constitution.”            Id.    On appeal, in

Starkey, we considered the same two issues as presented in this

matter:       “(I) whether the State ha[d] a right to appeal from the

entry    of    [an]   order   granting   the   trial   court’s    motion      for

appropriate relief; and (II) whether this Court [could] grant the

State’s [p]etition for [w]rit of [c]ertiorari.”) (italics added).

Id.

       As noted in that case, “the right of the State to appeal in
                                 -7-
a criminal case is statutory, and statutes authorizing an appeal

by the State in criminal cases are strictly construed.”       Id.

(citation, internal quotation marks, and brackets omitted).   Two

sections of our General Statutes touch on the State’s possible

right of appeal here:     that discussing appeals by the State in

general and those covering appeals from MARs specifically.     My

careful review, along with a plain reading of Starkey, reveals no

authority for the State’s purported appeal or petition for writ of

certiorari here.

       Our General Statutes provide:

            (a) Unless the rule against double jeopardy
            prohibits further prosecution, the State may
            appeal6 from the superior court to the
            appellate division:


6   As this Court has noted,

            [a]ppeal is defined in [section] 15A-101(0.1):
            “Appeal. — When used in a general context, the
            term ‘appeal’ also includes appellate review
            upon writ of certiorari.”       Applying this
            definition to [section] 15A-1445, we hold the
            word   “appeal”   in  the   statute   includes
            “appellate review upon writ of certiorari.”
            Otherwise, the legislature would have used
            such language as “the [S]tate shall have a
            right of appeal.”    By way of contrast, the
            legislature in setting out when a defendant
            may appeal, uses the phrase “is entitled to
            appeal as a matter of right.” N.C. Gen. Stat.
            [§] 15A-1444(a).

State v. Ward, 46 N.C. App. 200, 204, 264 S.E.2d 737, 740 (1980)
(italics added).
                               -8-


            (1) When there has been a decision or
         judgment dismissing criminal charges as to one
         or more counts.

            (2) Upon the granting of a motion for a new
         trial on the ground of newly discovered or
         newly available evidence but only on questions
         of law.

            (3) When the     State   alleges   that   the
         sentence imposed:

               a.    Results    from   an    incorrect
         determination of the defendant’s prior record
         level under [section] 15A-1340.14 or the
         defendant’s prior conviction level under
         [section] 15A-1340.21;

               b.   Contains   a   type   of   sentence
         disposition   that  is   not   authorized   by
         [section] 15A-1340.17 or [section] 15A-
         1340.23 for the defendant’s class of offense
         and prior record or conviction level;

               c. Contains a term of imprisonment that
         is for a duration not authorized by [section]
         15A-1340.17 or [section] 15A-1340.23 for the
         defendant’s class of offense and prior record
         or conviction level; or

               d. Imposes an intermediate punishment
         pursuant to [section] 15A-1340.13(g) based on
         findings    of    extraordinary    mitigating
         circumstances that are not supported by
         evidence or are insufficient as a matter of
         law to support the dispositional deviation.

         (b) The State may appeal an order by the
         superior court granting a motion to suppress
         as provided in [section] 15A-979.

N.C. Gen. Stat. § 15A-1445 (2013) (emphasis added).
                                      -9-
     As    observed   in   Starkey,   an    appeal   from   the   grant   of    a

defendant’s    MAR    as   occurred   here     implicates    none    of   these

conditions:

            The relief granted by the trial court might be
            considered to have effectively dismissed [the]
            defendant’s charge of having attained the
            status of an habitual felon or imposed an
            unauthorized prison term in light of [the]
            defendant’s status as an habitual felon.
            However, it is the underlying judgment and not
            the order granting this relief from which the
            State must have the right to take an appeal.
            The State does not argue and we do not find
            that the underlying judgment dismisses a
            charge against defendant or that the term of
            imprisonment imposed was not authorized. The
            State therefore has no right to appeal from
            the underlying judgment and this appeal is not
            one “regularly taken.”    This appeal must be
            dismissed.

Starkey, 177 N.C. App. at 267, 628 S.E.2d at 426.

     The    mention   of   an   appeal      “regularly   taken”     refers     to

subsection 15A-1422(b) of our General Statutes, which covers MARs:

“The grant or denial of relief sought pursuant to [section] 15A-

1414 is subject to appellate review only in an appeal regularly

taken.”    N.C. Gen. Stat. § 15A-1422(b) (2013).            In turn, section

15A-1414 covers errors which may be asserted in MARs filed within

ten days following entry of a judgment upon conviction, N.C. Gen.

Stat. § 15A-1414 (2013), while section 15A-1415 specifies the

“[g]rounds for appropriate relief which may be asserted by [a]
                                    -10-
defendant” outside that ten-day time period.          N.C. Gen. Stat. §

15A-1415 (2013).     Because Defendant here filed his MAR more than

ten days after entry of judgment upon his convictions, section

15A-1422(c) applies to the matter before us:7

            The court’s ruling on a motion for appropriate
            relief pursuant to [section] 15A-1415 is
            subject to review:

               (1) If the time for appeal from               the
            conviction has not expired, by appeal.

               (2) If an appeal is pending when the ruling
            is entered, in that appeal.

               (3) If the time for appeal has expired and
            no appeal is pending, by writ of certiorari.

N.C. Gen. Stat. § 15A-1422(c) (emphasis added).             Here, the time

for appeal had long passed, and there was no appeal pending when

the   MAR   was   ruled   upon,   rendering   subsections    (a)   and   (b)

inapplicable.

      As for the availability of appellate review via writ of

certiorari, this Court in Starkey held:

            Review by this Court pursuant to a [p]etition
            for [w]rit of [c]ertiorari is governed by Rule
            21 of the North Carolina Rules of Appellate
            Procedure. Pursuant to Rule 21, this Court is


7 Nothing in Starkey or the relevant statutes suggests that the
timing of the MAR’s filing (i.e., within or outside of the ten-
day period) would have any effect on the reasoning of the Court in
dismissing the State’s purported appeal. Neither section 15A-1414
nor 15A-1415 would permit the appeal by the State in the case
before us.
                                   -11-
           limited to issuing a writ of certiorari:

           to permit review of the judgments and orders
           of trial tribunals when [1] the right to
           prosecute an appeal has been lost by failure
           to take timely action, or [2] when no right of
           appeal from an interlocutory order exists, or
           [3] for review pursuant to [section] 15A-
           1422(c)(3) of an order of the trial court
           denying a motion for appropriate relief.

           The State recognizes that its petition does
           not satisfy any of the conditions of Rule 21
           and asks this Court to invoke Rule 2 of the
           North Carolina Rules of Appellate Procedure
           and review the trial court’s order.

Starkey, 177 N.C. App. at 268, 628 S.E.2d at 426 (citation and

internal quotation marks omitted; italics added).              This Court

declined “the State’s request to invoke Rule 2 and den[ied] the

State’s [p]etition for [w]rit of [c]ertiorari.”            Id.8 (italics

added).   As noted supra and as was the case in Starkey, none of

the   circumstances   permitting   this   Court   to   grant   a   writ   of

certiorari are presented in the matter before us.

      The order entered by this Court on 13 December 2012 cites




8 Although the language used by this Court in Starkey suggests that
the panel could have invoked Rule 2 and granted the petition, Rule
21 is jurisdictional, see N.C. Gen. Stat. § 7A-32(c) (2013), and
thus cannot be obviated by invocation of Rule 2. See Dogwood Dev.
& Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657
S.E.2d 361, 365 (2008) (noting that “in the absence of
jurisdiction, the appellate courts lack authority to consider
whether the circumstances of a purported appeal justify
application of Rule 2”).
                                 -12-
three authorities which purportedly give this Court jurisdiction

to grant the State’s petition:   N.C. Const. art. IV, § 12(2), N.C.

Gen. Stat. § 7A-32(c), and State v. Whitehead, 365 N.C. 444, 722

S.E.2d 492 (2012).     The cited constitutional provision merely

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).    In turn, section 7A-32(c) provides:

          The Court of Appeals has jurisdiction,
          exercisable by one judge or by such number of
          judges as the Supreme Court may by rule
          provide, 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, and of the Utilities
          Commission and the Industrial Commission. The
          practice and procedure 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. Gen. Stat. § 7A-32(c) (emphasis added).    The 13 December 2012

order states that this Court has jurisdiction to grant the State’s

petition in order “to supervise and control the proceedings of any

of the trial courts of the General Court of Justice[.]”          Id.

However, the plain language of the statute states that this

jurisdiction is circumscribed by “statute[,] rule of the Supreme

Court, . . . [or] the common law.”      Id.   There is no statute or

common law principle giving us jurisdiction to grant the State’s
                                      -13-
petition.   Further, as discussed supra, Rule 21 of our Rules of

Appellate Procedure, set forth by our Supreme Court, does not

permit   this   Court   to    grant   petitions    of   certiorari   in   the

circumstances presented here.

     Finally, Whitehead is inapposite.            That case was issued by

our Supreme Court which, in contrast to the purely statutory and

rule-based jurisdiction and power of this Court, has independent

constitutional “‘jurisdiction to review upon appeal any decision

of the courts below.’”       365 N.C. at 445, 722 S.E.2d at 494 (quoting

N.C. Const. art. IV, § 12(1) (“The Supreme Court shall have

jurisdiction to review upon appeal any decision of the courts

below, upon any matter of law or legal inference.”)).          The Supreme

Court stated that it “will not hesitate to exercise its rarely

used general supervisory authority when necessary . . . .”           Id. at

446, 722 S.E.2d at 494 (citation and internal quotation marks

omitted; emphasis added).         I find it telling that the Supreme

Court,   exercising      its     constitutional     general    supervisory

authority, allowed the State’s petition for writ of certiorari in

Whitehead to review the identical issue as is raised in the case

at bar, with no prior review by this Court.             This suggests that

the State’s procedure in Whitehead, to wit, seeking review of the

trial court’s MAR decision via petition for certiorari directly to
                               -14-
the Supreme Court, is the proper route for this appeal.

     In sum, this Court lacks jurisdiction to review the State’s

arguments by direct appeal, writ of certiorari, or any other

procedure.9   Accordingly, I dissent.




9 Further, the decision of the petition panel overruled this
Court’s published opinion in Starkey, which constituted binding
precedent mandating that we dismiss the State’s purported appeal
and deny its petition for writ of certiorari. See In re Appeal
from 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.”).
