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The Writ of Certiorari—A Somewhat Less Powerful Tool?

Yesterday’s batch of opinions contained an unusual nugget: an entire opinion devoted to arguably the most powerful of all appellate tools, the writ of certiorari. In State v. Biddix,  the Court of Appeals denied a petition for writ of certiorari by concluding that the court was prohibited from invoking certiorari to address an issue on appeal, rather than simply exercising its discretion to deny the petition.  [Note. After this blog was posted, the October 2016 opinion was  withdrawn and replaced by a December 2015 opinion that addressed Stubbs and converted Judge Geer’s concurrence into a dissent. See follow-up blog post here.  As of February 2017, the text of the October 2016 opinion can still be found here.]

In Biddix, the defendant entered a guilty plea on various drug crimes and agreed to waive his right to appellate review of his conviction and sentence. In open court, the defendant admitted to the existence of an aggravating factor related to his crimes, and at sentencing he ultimately received an enhanced sentence based on that aggravating factor. However, the parties’ written plea agreement contained a promise that the State would not pursue an aggravating factor sentencing enhancement against Biddix. This discrepancy in the plea agreement, however, was not picked up by Biddix or his trial counsel until after he appealed.

On appeal, Biddix argued that his guilty plea was invalid because it violated the terms of his written plea agreement and, therefore, was not voluntary. Biddix sought appeal review as of right and also filed a petition for writ of certiorari seeking to raise this issue under N.C. Gen. Stat. § 15A-1444(e).

Subject to limited exceptions not applicable in Biddix, section 15A-1444(e) provides that a criminal defendant normally “is not entitled to appeal 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. Id. (emphasis added).

The Court of Appeals first determined that Biddix had no right to appeal under section 15A-1444 because the voluntariness of his plea was not one of the exceptions permitting appellate review as of right under the statute.

The Biddix court then turned to the defendant’s petition for writ of certiorari. At first blush, section 15A-1444(e) appears to grant a defendant a right to seek certiorari review of his guilty plea. However, the Court of Appeals disagreed, focusing instead on the language of Appellate Rule 21.

Appellate Rule 21 provides that the writ of certiorari may be invoked to

1) “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,”

2) “when no right of appeal from an interlocutory order exists,” or

3) “for review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.”

Note: When State v. Stubbs was released in April 2015 , Appellate Rule 21 was amended to clarify that certiorari could be used to permit “review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court ruling on a motion for appropriate relief.”

Because the voluntariness of Biddix’s guilty plea is not a ground specifically enumerated in Appellate Rule 21, the court concluded that a conflict existed between section 15A-1444(e) and Appellate Rule 21. Citing several prior Court of Appeals cases, the Biddix court held that Appellate Rule 21 trumped the language in section 15A-1444(e)—and consequently, that the Court of Appeals “was without authority to review, either by right or by certiorari,” Biddix’s guilty plea.

Fellow appellate gurus are likely thinking that this decision sounds a lot like State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007). In Oglesby, the Supreme Court held that Evidentiary Rule 103(a)(2) was unconstitutional because it conflicted with Appellate Rule 10. Although Biddix did not use the word “unconstitutional” or cite Oglesby, the opinion seems to follow this same line of reasoning.

This opinion is even more interesting because of Judge Marty Geer’s separate concurring opinion. Judge Geer agreed that certiorari review was inappropriate in Biddix but only because the defendant had not made an adequate showing to warrant certiorari review. Judge Geer completely disagreed with the majority’s conclusion that Appellate Rule 21 prohibited the Court of Appeals from addressing Biddix’s argument by writ of certiorari. To support her decision, she cited and quoted prior Court of Appeals’ opinions and a Supreme Court opinion (State v. Bolinger, 320 N.C. 596, 359 S.E.2d 459 (1987)). Judge Geer noted that the Supreme Court in Bolinger had reviewed a very similar issue via its certiorari authority and had noted that the criminal defendant could “obtain appellate review of this issue only upon grant of a writ of certiorari”—which the Supreme Court in Bolinger elected to do.

Biddix raises several interesting issues. First, In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989), provides that one Court of Appeals panel cannot overrule another Court of Appeals panel. But what happens, such as here, when the Court of Appeals judges disagree over which prior decision is the controlling panel opinion? Unlike the Fourth Circuit, North Carolina’s state Appellate Rules do not provide a mechanism for en banc review of issues on which the Court of Appeals is split. Moreover, although the Supreme Court has vaguely hinted  that conflicting authority at the Court of Appeals  might be appropriate grounds for discretionary review, a split in authority is not one of the grounds for discretionary review listed in Appellate Rule 15 or N.C. Gen. Stat. § 7A-31.

Second, where section 15A-1444(e) expressly contemplates discretionary review of an issue by certiorari is there really a “conflict” between Appellate Rule 21 and the statute? The Biddix majority recognized that a criminal defendant’s right to appellate review is entirely a creation of statute.  Why doesn’t the General Assembly have the authority to grant criminal defendants a “soft” right to appellate review—i.e., by granting the Court of Appeals and Supreme Court the power to review these cases as a matter of discretion?  That the legislature is granting a discretionary—as opposed to mandatory—right to appellate review in section 15A-1444(e) would not appear fatal.  Indeed, petitions for discretionary review were also created by the General Assembly.

Third, the three types of orders subject to review under Appellate Rule 21 do not always match perfectly with actual practice. For instance, I would not characterize an order settling the record on appeal as an “interlocutory order,” but the Supreme Court and Court of Appeals have both held that you can only challenge those orders by petition for writ of certiorari. See, e.g., State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979); Handy Sanitary Dist. v. Badin Shores Resort Owners Ass’n, Inc., 225 N.C. App. 296, 303-05, 737 S.E.2d 795, 801-02 (2013). Moreover, certiorari has been invoked by the appellate courts when a notice of appeal was timely filed but the notice was jurisdictionally deficient in some respect. See, e.g., In Re I.T.P.-L, 194 N.C. App. 453, 459, 670 S.E. 2d 282, 285 (2008) (granting certiorari where parent signature required by Appellate Rules was not contained on timely notice of appeal); In re I.S., 170 N.C. App. 78, 611 S.E.2d 467, 471 (2005) (granting writ of certiorari where appellant’s notice of appeal incorrectly stated that it was from a January order but it was clear from the circumstances that appellant intended to appeal from an April order).

What are your thoughts about this opinion? Which line of precedent do you think is binding on the Court of Appeals? Do you believe a conflict exists between section 15A-1444(e) and Appellate Rule 21? Does Biddix signal that some judges on the Court of Appeals are seeking to pull back on the writ of certiorari’s power? Or will Biddix be confined to the criminal context?

Let us know in the comments below!

–Beth Scherer

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6 Responses to "The Writ of Certiorari—A Somewhat Less Powerful Tool?"

  • Matt Leerberg
    October 7, 2015 - 1:52 pm Reply

    Our state constitution provides:

    “Court of Appeals. The Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.”

    N.C. Const. art. IV, sec. 12(2). Is N.C. Gen. Stat. 15A-1444(e) a statute creating appellate jurisdiction? If so, then doesn’t our constitution answer the question posed by this case? Or is the word “appellate” in the constitution confined to “appeals,” to the exclusion of jurisdiction created by writ?

    Also, is Bolinger distinguishable on the ground that the Supreme Court has plenary authority to issue “any remedial writs necessary to give it general supervision and control over the proceedings of the other courts”? N.C. Const. art IV, sec. 12(1).

  • Beth Scherer
    October 7, 2015 - 3:18 pm Reply

    Good points.

    Is the promulgation of Article V (Extraordinary Writs) of the Appellate Rules an exercise of the Supreme Court’s authority under N.C. Const. art IV, sec. 12(1)? Is the right to define the writs exclusively within the purview of the Supreme Court?

    Could the General Assembly have avoided this by substituting “may petition the appellate division for discretionary review” rather than “may petition the appellate division for review by writ of certiorari”? While not current appellate rule contemplates discretionary review by the Court of Appeals, when the General Assembly creates the right to appellate review, does that matter? Perhaps the General Assembly used the cert writ in this statute because there is already a rule defining the procedure for this type of discretionary review in the COA?

    What canons of statutory construction do the appellate courts follow when determining if a conflict creates a constitutional problem between the Appellate Rules and General Statutes?

  • Publius
    October 8, 2015 - 9:24 am Reply

    The North Carolina Supreme Court has recently made a pretty definitive statement regarding the issues you are raising: “Therefore, while N.C. R. App. 21 might appear at first glance to limit the jurisdiction of the Court of Appeals, the Rules cannot take away jurisdiction given to that court by the General Assembly in accordance with the North Carolina Constitution.” State v. Stubbs, ___ N.C. ___, ___, 770 S.E.2d 74, 76 (2015) (which was highlighted by your blog when it came down: https://www.ncapb.com/2015/04/16/supreme-court-of-north-carolina-amends-appellate-rule-21/ It’s not clear why the COA panel did not discuss Stubbs in either the majority or concurring opinions.

    • Beth Scherer
      October 8, 2015 - 10:32 am Reply

      Very nice catch Publius! Always glad when our readers remind us of cases we blog about–and have forgotten!

  • Beth Scherer
    October 20, 2015 - 12:10 am Reply

    As an update, counsel for Biddix recently filed a motion to stay issuance of mandate and to withdraw the court’s published opinion–based on Stubbs. The motion was not a petition for rehearing, but nonetheless, it bring Stubbs to the panel’s attention. We will keep you posted!

    http://www.ncappellatecourts.org/show-file.php?document_id=178181

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