STATE v. McCOY

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Docket Number

No. COA04-209.

Attorney(S)

Attorney General Roy Cooper, by Assistant Attorney General Margaret P. Eagles, for the State. Appellate Defender Staples Huges, by Assistant Appellate Defender, Matthew D. Wunsche, for defendant-appellant.

Judges

STEELMAN, Judge.

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Smart Summary

Factual and Procedural Background

On September 15, 2003, the defendant appeared before the Guilford County Superior Court with court-appointed counsel to address motions he had filed pro se. During the hearing, while in custody, the defendant made a threatening statement to the assistant district attorney, resulting in the trial judge holding him in direct contempt and sentencing him to thirty days in jail. The contempt order was entered on September 15, 2003, and a copy was delivered to the defendant on September 18, 2003. The defendant filed a notice of appeal on October 13, 2003.

Legal Issues Presented

Whether the defendant's appeal should be dismissed for failure to timely file a notice of appeal within fourteen days of the contempt order as required by N.C. R. App. P. 4(a)(2).
Whether the Court of Appeals may grant an extension of time to file a notice of appeal under N.C. R. App. P. 27(c) when compliance with Rule 4(a)(2) is jurisdictional.
Whether the Court should exercise its discretion under Rule 2 to correct defects in the defendant's purported petition for writ of certiorari.
Whether the Court should grant the defendant's petition for writ of certiorari despite procedural deficiencies.

Arguments of the Parties

Defendant's Arguments

The defendant acknowledged that the notice of appeal was untimely.
The delay was attributed to the denial of his constitutional and statutory right to counsel and the summary nature of the contempt proceeding.
In the absence of recognizing the untimely notice, the defendant requested the Court to treat his brief as a petition for writ of certiorari and consider the merits of the issues raised.

State's Arguments

The State moved to dismiss the appeal based on the defendant's failure to file a timely notice of appeal within the fourteen-day period mandated by Rule 4(a)(2).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. McMillian, 101 N.C. App. 425, 399 S.E.2d 410 (1991)	Jurisdictional requirement of timely notice of appeal	Confirmed that failure to give timely notice deprives the Court of jurisdiction to hear the appeal.
Sillery v. Sillery, 168 N.C. App. 231, 606 S.E.2d 749 (2005)	Jurisdictional nature of timely notice of appeal	Reinforced that untimely notice bars appellate jurisdiction.
O'Neill v. Bank, 40 N.C. App. 227, 252 S.E.2d 231 (1979)	Prohibition on granting extensions for jurisdictional filing requirements	Supported that Rule 27(c) prohibits extension of time for filing notice of appeal when jurisdictional.
Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005)	Mandatory nature of appellate rules and limits on appellate courts' discretion	Emphasized that failure to comply with appellate rules results in dismissal and that appellate courts should not create appeals for appellants.
State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519 (2003)	Discretionary authority under Rule 2 of the Rules of Appellate Procedure	Noted that Rule 2 allows discretionary correction of procedural defects but was not exercised here.
State v. Ager, 152 N.C. App. 577, 568 S.E.2d 328 (2002)	Discretionary nature of Rule 21 (certiorari petitions)	Referenced in context of discretionary review via writ of certiorari.
State v. Grundler and State v. Jelly, 251 N.C. 177, 111 S.E.2d 1 (1959)	Discretionary appellate review mechanisms	Supported the discretionary nature of certiorari petitions and appellate review.

Court's Reasoning and Analysis

The Court first recognized that the defendant did not file a timely notice of appeal within the fourteen-day period required by N.C. R. App. P. 4(a)(2), which is jurisdictional. Because jurisdiction depends on timely notice, the Court is without authority to hear the appeal. Rule 27(c) prohibits granting an extension for filing the notice of appeal when the requirement is jurisdictional, preventing the Court from excusing the delay.

The defendant attempted to circumvent this procedural defect by requesting the Court to treat his brief as a petition for writ of certiorari. However, the Court found that his submission did not meet the mandatory requirements of Rule 21(c), which specifies the contents and verification necessary for such a petition.

Although the Court has discretionary authority under Rule 2 to correct procedural defects and under Rule 21 to grant certiorari petitions, it declined to exercise this discretion. The Court emphasized that it is not the role of appellate courts to create an appeal for an appellant who has failed to comply with jurisdictional rules. Consequently, the State's motion to dismiss was granted, and the defendant's petition for writ of certiorari was denied.

Holding and Implications

The Court granted the State's motion to dismiss the defendant's appeal and denied the defendant's petition for writ of certiorari.

The direct consequence of this decision is that the defendant's appeal was dismissed due to failure to timely file a notice of appeal, and no appellate review of the contempt order was granted. The Court did not set any new precedent but reaffirmed the mandatory and jurisdictional nature of appellate procedural rules and the limited discretion of appellate courts in excusing noncompliance.

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STATE OF NORTH CAROLINA v. JEROME CANNON McCOY.

Appeal and Error — failure to comply with appellate rules — untimely notice of appeal — purported petition for writ of certiorari

The State's motion to dismiss defendant's appeal concerning motions defendant filed pro se is granted and the Court of Appeals declines to exercise its discretion under Rule 2 to correct the defects in defendant's purported petition for writ of certiorari and further denies defendant's purported petition for writ of certiorari, because: (1) defendant failed to give notice of appeal within fourteen days from the entry of the order holding him in contempt as required by N.C. R. App. P. 4(a)(2) and thus the Court of Appeals is without jurisdiction to hear the appeal; (2) N.C. R. App. P. 27(c) prohibits the Court of Appeals from granting defendant an extension of time to file his notice of appeal since compliance with the requirements of Rule 4(a)(2) is jurisdictional and cannot simply be ignored by the Court of Appeals; and (3) it is not the role of the appellate courts to create an appeal for an appellant.

Judge GEER dissenting.

STEELMAN, Judge.

On 15 September 2003, defendant appeared before the Superior Court of Guilford County, along with his court-appointed counsel, Thomas Maddox, concerning motions defendant had filed pro se. Defendant was in custody at the time of the hearing. When defendant was leaving the courtroom following the hearing, he stated to Julia Hejazi, the assistant district attorney, "you're going down." The trial judge found defendant to be in direct contempt of court and sentenced him to thirty days in the county jail. The order was reduced to writing and entered on 15 September 2003, with a copy delivered to defendant at the jail on 18 September 2003. Defendant gave notice of appeal on 13 October 2003.

We first consider the State's motion to dismiss defendant's appeal for failure to give notice of appeal within fourteen days from the entry of the order holding him in contempt as required by Rule 4(a)(2) of the North Carolina Rules of Appellate Procedure. Defendant freely acknowledged that the notice of appeal was not timely given. In a footnote to his Statement of Facts, defendant states the following:

Defendant acknowledges that notice of appeal was given outside of the 14-day period set by N.C. Rule of Appellate Procedure 4(a)(2). Defendant asserts, however, that the delay was due to the denial of his constitutional and statutory right to counsel and the summary nature of the contempt proceeding, as discussed in arguments I and II below. If this Court does not recognize defendant's notice of appeal, defendant respectfully requests this Court consider this brief as a Petition for a Writ of Certiorari and consider the issues raised on their merits.

We note that when a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal. See State v. McMillian, 101 N.C. App. 425, 427, 399 S.E.2d 410, 411 (1991). See also Sillery v. Sillery, 168 N.C. App. 231, 234, 606 S.E.2d 749, 751 (2005). Rule 27(c) of the Rules of Appellate Procedure prohibits this Court from granting defendant an extension of time to file his notice of appeal since compliance with the requirements of Rule 4(a)(2) is jurisdictional and cannot simply be ignored by this Court. See O'Neill v. Bank, 40 N.C. App. 227, 230, 252 S.E.2d 231, 233-34 (1979).

While this Court cannot hear defendant's direct appeal, it does have the discretion to consider the matter by granting a petition for writ of certiorari. "The 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,. . . ." N.C. R. App. P. 21(a). This rule goes on to specify the contents of a petition for writ of certiorari:

The petition shall contain a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the reasons why the writ should issue; and certified copies of the judgment, order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition. The petition shall be verified by counsel or the petitioner. Upon receipt of the prescribed docket fee, the clerk will docket the petition.

N.C. R. App. P. 21(c) (2005).

The footnote contained in appellant's brief clearly does not meet the requirements set forth in Rule 21(c). "The North Carolina Rules of Appellate Procedure are mandatory and `failure to follow these rules will subject an appeal to dismissal.'" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 360 (2005). In order to correct the deficiencies in defendant's purported petition for writ of certiorari, we would have to invoke the provisions of Rule 2 of the Rules of Appellate Procedure.

The authority granted in Rule 2 is discretionary. State v. Owens, 160 N.C. App. 494, 498, 586 S.E.2d 519, 522 (2003) (citing to N.C. R. App. P. 2). The provisions of Rule 21 are also discretionary. State v. Ager, 152 N.C. App. 577, 585, 568 S.E.2d 328, 333 (2002) (citing State v. Grundler and State v. Jelly, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)).

We decline to exercise our discretion under Rule 2 to correct the defects in defendant's purported petition for writ of certiorari. In addition, we further decline to exercise our discretion and deny defendant's purported petition for writ of certiorari. "It is not the role of the appellate courts . . . to create an appeal for an appellant." Viar, 359 N.C. at 402, 610 S.E.2d at 361.

The State's motion to dismiss defendant's appeal is granted.

APPEAL DISMISSED; PETITION FOR WRIT OF CERTIORARI DENIED.

Judge CALABRIA concurs.

Judge GEER dissents.