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Preserving Sentencing Errors Just Got More Confusing

In State v. Meadows, the Court of Appeals determined that sentencing errors not preserved with a timely request, objections, or motion are waived under Appellate Rule 10(a)(1).  In doing so, the Meadows court 1) declined to follow a prior line of cases holding that Appellate Rule 10(a)(1) was inapplicable to sentencing issues, 2) applied the recently created exception to the In re Civil Penalty rule [previously blogged on here], and 3) did not address the Supreme Court’s 2010 decision in State v. Mumford that certain types of sentencing issues are automatically preserved without objection under N.C. Gen. Stat. § 15A-1446(d)(18).

In Meadows, a 72-year-old woman was convicted of three drug charges stemming from one transaction and sentenced to two consecutive sentences of 70 to 93 months.  She challenged her sentences as unlawful on the following grounds:

  1. That her sentences were determined by a judge other than the trial judge;
  2. That the sentencing judge overruled a prior order of another trial judge;
  3. That the trial court abused its discretion in imposing consecutive sentences on a 72-year-old, first-time offender for a single drug transaction; and
  4. That the sentence violated her Eighth Amendment right to a sentence proportional to her crime.

Problem: None of these issues were raised during her sentencing hearing.

The Court held these issues had been waived under Appellate Rule 10(a)(1).  Appellate Rule 10(a)(1) states, in relevant part:

In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.

Defendant sought to rely on a prior line of Court of Appeals cases holding that sentencing errors are not considered errors occurring at trial for the purpose of Appellate Rule 10(a)(1).  These cases stemmed the Supreme Court’s 1991 opinion in State v. Canady which held that Appellate Rule 10(a)(1) was inapplicable to the issue of whether the sole aggravating factor found at a sentencing hearing was supported by insufficient evidence.  The Canady court explained that Appellate Rule 10(a)(1) “is directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal.”  Subsequent opinions from the Court of Appeals, including Hargett (2003), Curmon (2005), Pettigrew (2010), and Allah (2013) all interpreted Canady as holding that an error at sentencing is not considered an error at trial, and thus that Appellate Rule 10(a)(1) does not apply to sentencing issues.

The Meadows panel rejected the Hargett line of cases, noting that a proper interpretation of Canady was simply that Appellate Rule 10(a)(1) does not apply after the proceedings – including the sentencing hearing – have concluded and the trial court is in the process of memorializing its decision in a written judgment.

Meadows also determined that In re Civil Penalty (which typically precludes one Court of Appeals panel from overruling another) did not require the Court of Appeals to follow Hargett and its progeny for two reasons.  First, the Court noted that several Court of Appeals cases after Canady, but before Hargett, had declined to review unpreserved sentencing errors.  Thus, the Court concluded that the Hargett panel and others relying on Hargett’s interpretation of Canady were without authority to “overrule” these decisions that Appellate Rule 10(a)(1) applied to sentencing hearings—even though none of the earlier cases had purported to interpret Canady.

Second, and “more definitively” for the Meadows panel, the Supreme Court had never applied Canady to circumvent Appellate Rule 10(a)(1)’s application to sentencing issues.  To the contrary, the Meadows panel cited a number of opinions issued by the Supreme Court between 1998 and 2005 in which the Supreme Court deemed errors not objected to at a sentencing hearing waived under Appellate Rule 10(a)(1).  The Court concluded that, “[b]ecause we are bound to follow the Supreme Court, our Supreme Court’s unabated application of Rule 10(a)(1) to sentencing hearings post-Canady must control over opinions of this Court holding otherwise.”

A potential elephant in the room, however, is N.C. Gen. Stat. § 15A-1446(d)(18) and the Supreme Court’s 2010 decision in State v. Mumford.

N.C. Gen. Stat. § 15A-1446 provides that while most errors are required to be preserved with a timely request, objection or motion, some errors are deemed preserved as a matter of law, including the following: “The sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.”  N.C. Gen. Stat. § 15A-1446(d)(18).

Of course, State v. Oglesby (2007) taught trial lawyers to never trust a statutory error preservation statute. Oglesby held that Evidence Rule 103(a)(2)—which seeks to preserve issues addressed by a pretrial motion in limine ruling without requiring a renewed objection at trial—was unconstitutional because in conflicted with Appellate Rule 10(a).

Three years later, however, the Supreme Court in State v. Mumford specifically upheld the constitutionality of N.C. Gen. Stat. § 15A-1446(d)(18) under Appellate Rule 10(a). Mumford reasoned that while the legislature does not have authority to infringe on the Supreme Court’s exclusive authority to make rules for the Appellate Division (Article IV, Section 13(2)), N.C. Gen. Stat. § 15A-1446(d)(18) was not in direct conflict with Appellate Rule 10(a)(1) because of the following language in Appellate Rule 10(a)(1):

Any such issue that was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action . . . may be made the basis of an issue presented on appeal.

Mumford held that the “deemed preserved” “by rule or law” exception to Appellate Rule 10(a)(1) permits the General Assembly to preserve certain types of errors without objection as long as the statute or rule does not “conflict with specific provisions of our appellate rules rather than the general [error preservation] rule stated in Rule of Appellate Procedure 10(a).” Thus, the Mumford Court used § 15A-1446(d)(18) to address whether part of a sentence was supported by sufficient evidence—despite the absence of any objection on this ground at trial.

In light of Mumford’s holding that § 15A-1446(d)(18) is constitutional, the correct result in Meadows seems less obvious. Several opinions of the Court of Appeals, both before and after Mumford, have held that § 15A-1446(d)(18) preserve issues regarding sentencing, including constitutional violations, regardless of whether a defendant objected at the sentencing hearing.  Among these:

  • In re Butts (2003), in which the Court of Appeals reviewed the defendant’s contention that a sentencing condition violated his Fifth Amendment right to be free from self-incrimination even though he didn’t object at the sentencing hearing;
  • State v. Borges (2007), in which the Court of Appeals reviewed the defendant’s contention that his sentence violated the ex post facto clause of the North Carolina Constitution even though he didn’t object at the sentencing hearing;
  • State v. Patterson (2012), in which the Court of Appeals reviewed an alleged error in the imposition of court costs as part of sentencing even though the defendant did not object at the sentencing hearing; and
  • State v. Martin (2012), in which the Court of Appeals reviewed the defendant’s contention that his sentence violated the Double Jeopardy clause even though he didn’t object at the sentencing hearing.

To be sure, as reflected by the cases discussed in Meadows, the Supreme Court has also held Rule 10(a)(1) to require objections at sentencing hearings.  However, the cases relied on in Meadows pre-date Mumford and do not address § 15A-1446(d)(18) .

Therefore, some of the issues in Meadows (particularly the Eighth Amendment issue) were arguably preserved under § 15A-1446(d), which may explain why Judge Murphy concurred in the result only.

Until the courts provide more clarity, the safest route is to preserve sentencing issues with a timely request, objection, or motion.  We’ll keep an eye on the issue and report back on any new developments.

–Liz Hedrick

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