Appeal by the State from an order and judgment entered 3
February 2005 by Judge Ernest B. Fullwood in Lenoir County Superior
Court. Heard in the Court of Appeals 15 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Benjamin Dowling-Sendor, for defendant.
The State appeals from an order entered 3 February 2005,
granting the trial court's own motion for appropriate relief,
vacating Michael Anthony Starkey's (defendant) sentence for having
attained the status of an habitual felon and sentencing defendant
to a term of eight to ten months imprisonment. For the reasons
below we dismiss this appeal and deny the State's Petition for Writ
Facts and Procedural History
On 13 September 2001, police officers stopped defendant at a
driver's license checkpoint in Kinston, North Carolina. Defendant
was subsequently arrested for driving while impaired and driving
with a revoked license. During a search of defendant's car
officers found marijuana in a balled-up piece of paper and a small
plastic bag containing what was later determined to be cocaine.
The plastic bag contained 0.1 grams (0.004 ounces) of cocaine, the
smallest amount the laboratory at the State Bureau of Investigation
On 25 February 2002, defendant was indicted by the Lenoir
County Grand Jury for the felony offense of possession of cocaine
and for having attained the status of an habitual felon. On 16
July 2002, after a trial before a jury, defendant was found to be
guilty of possession of cocaine and of having attained the status
of an habitual felon. Defendant was found to have three
non-overlapping prior felony convictions: felonious forgery on 29
January 1992; felonious possession of stolen goods on 1 August
1992; and felonious larceny on 18 April 1995. All three are Class
H felonies. In a judgment entered consistent with the jury
verdicts, the trial court sentenced defendant to a term of 100 to
129 months imprisonment. On 18 May 2004, for reasons not related
to the appeal, this Court reversed defendant's convictions. State
, 164 N.C. App. 414, 595 S.E.2d 815 (2004) (No. 03-454)
Defendant was retried at the 24 January 2005 Criminal Session
of Lenoir County Superior Court before the Honorable Ernest B.Fullwood. On 27 January 2005, a jury found defendant guilty of one
count of possession of cocaine and of having attained the status of
an habitual felon. The trial court subsequently found that, as an
habitual felon, defendant had five prior record points and a prior
record level of III. On 3 February 2005, the trial court entered
a judgment consistent with the jury verdicts, sentencing defendant
to a term of seventy to ninety-three months imprisonment.
Immediately after entering judgment on that sentence, the
trial court, sua sponte
, entered an order granting its own motion
for appropriate relief. The trial court found that defendant's
sentence as an habitual felon was grossly disproportionate in light
of the mitigating factors found at sentencing and the crime
committed, and was in violation of his rights under the Eighth and
Fourteenth Amendments to the United States Constitution. The trial
court vacated defendant's sentence as an habitual felon, found
defendant had eleven prior record points and a prior record level
of IV, and sentenced defendant to a term of eight to ten months
The State appeals the order granting the trial court's motion
for appropriate relief. The State has also filed with this Court
a Petition for Writ of Certiorari. Defendant has filed a motion to
dismiss the State's appeal and a response to the State's Petition
for Writ of Certiorari.
The dispositive issues before this Court are: (I) whether the
State has a right to appeal from the entry of the order grantingthe trial court's motion for appropriate relief; and (II) whether
this Court may grant the State's Petition for Writ of Certiorari.
Appeal from a Motion for Appropriate Relief
Our Supreme Court has held that [t]he right of the State to
appeal in a criminal case is statutory, and statutes authorizing an
appeal by the State in criminal cases are strictly construed.
State v. Elkerson
, 304 N.C. 658, 669, 285 S.E.2d 784, 791 (1982)
(citations omitted). The State argues it has a right to appeal the
entry of the trial court's order granting the court's Motion for
Appropriate Relief pursuant to Sections 15A-1422(b), 15A-1445(a)(1)
and (a)(3)(c) of the North Carolina General Statutes.
As the State is appealing the entry of an order granting the
trial court's Motion for Appropriate relief and not the judgment
entered on the jury verdicts, whether or not the State has a right
of appeal to this Court is controlled by Section 15A-1422 of the
North Carolina General Statutes. Pursuant to Section 15A-1422(b),
the State seeks review of the trial court's grant of relief of a
Motion for Appropriate Relief in an appeal regularly taken. N.C.
Gen. Stat. § 15A-1422(b) (2005). Therefore, for this Court to
review the trial court's grant of relief under its Motion for
Appropriate Relief, the State must have a right to appeal the
underlying judgment in an appeal regularly taken.
Whether an appeal by the State of criminal judgments is
regularly taken is governed by Section 15A-1445 of the North
Carolina General Statutes. Cf. State v. Howard
, 70 N.C. App. 487,
489, 320 S.E.2d 17, 18-19 (1984) (holding N.C. Gen. Stat. § 15A-1444 governs regularly taken criminal appeals by defendants).
Section 15A-1445 states in pertinent part:
(a) Unless the rule against double jeopardy
prohibits further prosecution, the State may
appeal from the superior court to the
(1) When there has been a decision
or judgment dismissing criminal
charges as to one or more counts.
. . .
(3) When the State alleges that the
. . .
c. 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[.]
N.C. Gen. Stat. § 15A-1445 (2005). The relief granted by the trial
court might be considered to have effectively dismissed defendant's
charge of having attained the status of an habitual felon or
imposed an unauthorized prison term in light of 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. Howard
, 70 N.C. App. at 489, 320
S.E.2d at 18-19. 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 judgmentand this appeal is not one regularly taken. This appeal must be
Petition for Writ of Certiorari
Realizing it may not have a right to appeal the order of the
trial court, the State has also filed a Petition for Writ of
Certiorari with this Court asking us to review the trial court's
order vacating the original sentence. Review by this Court
pursuant to a Petition for Writ of Certiorari is governed by Rule
21 of the North Carolina Rules of Appellate Procedure. Pursuant to
Rule 21, this Court is limited to issuing 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 pursuant to G.S. 15A-1422(c)(3)
of an order of the trial court denying a
motion for appropriate relief.
State v. Pimental
, 153 N.C. App. 69, 76-77, 568 S.E.2d 867, 872
(quoting N.C. R. App. P. 21(a)(1)), disc. review denied
, 356 N.C.
442, 573 S.E.2d 163 (2002). 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. See
N.C. R. App. P.
2 (granting this Court the authority to suspend the rules of
appellate procedure to prevent manifest injustice to a party). We
decline the State's request to invoke Rule 2 and deny the State's
Petition for Writ of Certiorari.
Appeal dismissed, Petition for Writ of Certiorari denied.
Judge HUDSON concurs. Judge HUNTER concurs in a separate opinion.
HUNTER, Judge, concurring.
I agree with the State that the trial court's action in
granting the motion for appropriate relief directly contradicts
settled case law regarding Eighth Amendment challenges to habitual
felon sentences and was therefore erroneous. See, e.g., State v.
Todd, 313 N.C. 110, 117-19, 326 S.E.2d 249, 253-55 (1985); State v.
McDonald, 165 N.C. App. 237, 241-42, 599 S.E.2d 50, 52-53, disc.
review denied, 359 N.C. 195, 608 S.E.2d 60 (2004), cert. denied,
___ U.S. ___, 161 L. Ed. 2d 748 (2005); State v. Clifton, 158 N.C.
App. 88, 95-96, 580 S.E.2d 40, 45-46, cert. denied, 357 N.C. 463,
586 S.E.2d 266 (2003); State v. Hensley, 156 N.C. App. 634, 638-39,
577 S.E.2d 417, 421, disc. review denied, 357 N.C. 167, 581 S.E.2d
64 (2003). The majority is correct, however, that the State has no
statutory right of appeal to this Court from entry of the order
granting the trial court's motion for appropriate relief, and that
certiorari is also unavailable. Thus, this Court is precluded from
reviewing the merits of the State's position. I note, however,
that this issue may be subject to review by our Supreme Court
pursuant to its constitutional authority. See N.C. Const. art. IV,
§ 12, cl. 1; State v. Allen, 359 N.C. 425, 429, 615 S.E.2d 256, 259
(2005) (citation omitted) (the Supreme Court may 'exercise its
general supervisory authority when necessary to promote the
expeditious administration of justice').
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