Last week the North Carolina Court of Appeals issued an opinion in the case State v. Shaw which held that a defendant who pleads guilty to impaired driving does not have a statutory right to appeal the sentence imposed when the State fails to to give notice of its intent to seek a grossly aggravating factor.
The defendant in Shaw was convicted of misdemeanor DWI in district court. She appealed her conviction to superior court where she pled guilty to the same charge. The trial court found one grossly aggravating factor, a prior dwi conviction within 7 years, and imposed a Level Two punishment. The defendant appealed. The court of appeals held that the defendant had no statutory right of appeal. A defendant’s statutory right of appeal is found in G.S. 15A-1444(e), which states that
Except as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari. If an indigent defendant petitions the appellate division for a writ of certiorari, the presiding superior court judge may in his discretion order the preparation of the record and transcript of the proceedings at the expense of the State.
The court of appeals reasoned that subsection (a1) did not apply in Shaw because the defendant did not plead guilty to a felony, and G.S. 15A-1444(a1) states that
A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.
Furthermore, the defendant’s argument on appeal was not that the sentence was not supported by evidence introduced at the sentencing hearing, but that the State did not give the notice of its intent to seek a grossly aggravating factor. G.S. 20-179(a1)(1) requires that
If the defendant appeals to superior court, and the State intends to use one or more aggravating factors under subsections (c) or (d) of this section, the State must provide the defendant with notice of its intent. The notice shall be provided no later than 10 days prior to trial and shall contain a plain and concise factual statement indicating the factor or factors it intends to use under the authority of subsections (c) and (d) of this section. The notice must list all the aggravating factors that the State seeks to establish.
The other exception in subsection (e) is when subsection (a2) applies. G.S. 15A-1444(a2) states that
A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed:
(1) Results from an incorrect finding of the defendant's prior record level under G.S. 15A-1340.14 or the defendant's prior conviction level under G.S. 15A-1340.21;
(2) Contains a type of sentence disposition that is not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level; or
(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level.
The court of appeals concluded that subsection (a2) of 15A-1444 provides relief to those who plead guilty to a misdemeanor and are sentenced under the Structured Sentencing Act. The Structured Sentencing Act is expressly inapplicable to impaired driving offenses, and impaired driving offenses are sentenced under G.S. 20-179. The court cited a 1991 north carolina Supreme Court case, State v. Absher, which involved a defendant who had pled guilty to a DWI charge and then appealed his sentence. The Court stated that “[u]pon entry of a judgment in superior court pursuant to a plea of guilty to a misdemeanor, defendant's right to appellate review is governed by N.C.G.S. §§ 15A-1444(e).” The Court concluded that “[n]one of the exceptions mentioned in the statute apply in this case, and defendant is therefore not entitled to appeal as a matter of right from the judgment entered on his plea of guilty.”
The defendant then argued that the court of appeals should review the case under its certiorari jurisdiction, but the court concluded that it did not have such jurisdiction. NC Rule Appellate Procedure 21(a)(1) provides that the court of appeals may issue of a writ of certiorari to “permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review . . . of an order of the trial court denying a motion for appropriate relief.”
Therefore, the defendant did not have a statutory right of appeal.
If you have been charged with impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.