Last week, the Court of Appeals returned to a general question that this blog has addressed before: When is a Notice of Appeal Filing Deadline or Requirement Jurisdictional? In this instance, the specific issue was whether the Court has jurisdiction over an appeal when a notice of appeal was filed and the record on appeal was filed and the appeal docketed before the trial court entered the order that was being appealed.
In State v. Mangum, a defendant pleaded guilty to criminal charges on April 4, 2018. The trial court then orally sentenced him to a period of incarceration and stated that “[c]ourt costs and attorney’s fees are taxed against [the defendant] as a civil judgment.” The defendant appealed from the trial court’s order as it related to attorney’s fees on the ground that the defendant had not been given the opportunity to be heard on that issue. The defendant filed his written notice of appeal on April 10, 2018. When he filed his appellant’s brief on September 24, 2018, he simultaneously filed a petition for writ of certiorari in the event that the Court of Appeals were to find that his notice of appeal was insufficient.
Why would his notice of appeal have been insufficient? The order he was appealing from was decided by the trial court on April 4, 2018, and the defendant filed his written notice of appeal six days later, certainly within any time limit for noticing the appeal, right? Well, maybe not. The problem for the defendant was that while the trial court rendered a ruling on the attorney’s fees issue orally on April 4, 2018, the written civil judgment ordering the defendant to pay the fees was not entered until October 3, 2018, six months after it had been orally rendered and while the appeal was well under way (notice filed, record settled, appeal docketed and record filed, briefing commenced and ongoing).
The State, meanwhile, had moved to dismiss the appeal, arguing that the Court lacked jurisdiction to consider the appeal because the record did not contain the civil judgment from which the defendant was attempting to appeal. The State also argued that by filing the notice of appeal before there was a written judgment, the defendant had violated Rule 3 of the Rules of Appellate Procedure.
The defendant argued in response that although the civil judgment was not entered until October 3, 2018, his April 10 notice of appeal was sufficient to preserve appellate review of that October 3 order because the judgment itself had been rendered on April 4. He argued that “the rendering of an order commences the time when notice of appeal may be taken by the filing and serving of written notice, while entry of an order initiates the thirty-day time limitation within which notice of appeal must be filed.” He also filed a motion to amend the record on appeal to include the now-entered October 3 order (which was entered under the same file number as the April 4 decision).
In deciding whether it had jurisdiction over the appeal, the Court held that the defendant did not follow the correct procedure for appealing from the October 3 civil judgment ordering him to pay attorney’s fees. Nevertheless, the majority of the panel (Chief Judge McGee and Judge Berger) held that those “procedural missteps” did not deprive the Court of jurisdiction.
First, the majority stated that the filing of the notice of appeal on April 10 properly preserved the defendant’s right to appeal from the written civil judgment once it was ultimately entered. Where the defendant had gone astray, however, was in the filing of the record on appeal. During the record settlement process, the State did not respond to the defendant’s proposed record on appeal, so the record was deemed settled (under Rule 11) thirty days after service. The appeal was then docketed according to Rule 12(b) when the defendant filed it with the Court of Appeals on August 22, 2018. However, because the written judgment ordering attorney’s fees had not yet been entered, the filed record was not in compliance with Rule 9(a)(1)(h) when it was docketed. (Rule 9(a)(1)(h) requires the record to contain “a copy of the judgment, order, or other determination from which appeal is taken.” Of course, since that judgment did not exist as of the time the record was filed, it could not have been included in the record.) Thus, according to the panel majority, the defendant should have waited to file the record and proceed with the appeal until after the entry of the order on October 3. Otherwise, the Court lacked jurisdiction over the appeal.
But according to the panel majority, that defect was cured by the defendant’s motion to amend the record to include the October 3 order, which the majority determined the Court had the authority to allow in its discretion. The majority allowed that motion to amend and determined that the record on appeal became properly perfected by the grant of the amendment. Moreover, in the event that the amendment of the record did not cure the procedural defect, the panel majority went on to grant the defendant’s petition for writ of certiorari. The Court explained that even though violations of Rule 3 can divest the Court of jurisdiction to consider an appeal, the Court’s discretion pursuant to N.C.G.S. § 7A-32(c) cannot be limited by the appellate rules (see State v. Stubbs, 368 N.C. 40 (2015)); thus, “if a valid statute gives the Court of Appeals jurisdiction to issue a writ of certiorari, Rule 21 cannot take it away.”
The panel majority therefore exercised jurisdiction over the appeal and, reviewing the merits, determined that the trial court erred in not allowing the defendant to be heard on the issue of attorney’s fees. The judgment was vacated, and the case remanded.
Judge Tyson dissented. In his opinion, Rule 3 and Supreme Court of North Carolina precedent would not allow amending the record on appeal because the record technically could not exist since there was no entry of judgment from which the defendant could have appealed. Thus, in his view, the defendant could not meet his burden to demonstrate appellate jurisdiction. Moreover, Judge Tyson opined that the attempted appeal from the attorney’s fees order lacked merit, and denying the defendant that appeal would not be prejudicial, because 1) the defendant knew that he would have to pay for his appointed counsel and there was no dispute that the amount of awarded fees ($390) was proper, and 2) the defendant was present in court when the oral ruling was rendered and could have at that time asked to be heard on the attorney’s fees issue. Judge Tyson therefore opined that the appeal should be dismissed and the petition for writ of certiorari denied.
Judge Berger also wrote a separate concurrence, with which Judge Tyson also concurred in his dissent. Judge Berger noted that he was concurring in result only and lamented the “countless man-hours and tens-of-thousands of dollars” spent on an appeal that “elevate[s] form over substance.” The rationale underlying this opinion is that the criminal defendant who is not heard on the issue of attorney’s fees has suffered no prejudice, since that defendant knows from the initial appointment of counsel that he will be responsible for the fees of his court-appointed attorney. Judge Berger therefore encouraged the Supreme Court of North Carolina to take a further look at this case and use it as an opportunity to “return us to the plain language of N.C. Gen. Stat. § 15A-1444(a2).” [This statute sets forth the circumstances under which a criminal defendant who pleads guilty or no contest may appeal as of right; an order to pay attorney’s fees as a civil judgment is not included in the list.]
There is actually considerably more to this issue than what I discuss above, both in State v. Mangum itself and elsewhere–particularly in my colleagues’ comprehensive treatise on North Carolina appellate procedure. Feel free to weigh in on the issue in the comments below, and for a deep dive, see Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure §§ 28.02[3] [Distinctions Among Different Types of “Jurisdictional” Violations]; 28.09[2][c][vii] [Premature Notices of Appeal]; 28.09[3][a] [Failure of Record on Appeal to Include File-Stamped Notice of Appeal or Proof That Notice of Appeal Was Orally Given]; and 21.02 [Certiorari as an Equitable Remedy for the Failure to Take Timely Action to Pursue an Appeal of Right].
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