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Appellate Rule 28 and Abandonment of an Argument

A case with a history of appellate rules issues, see here, can now add a few more to its tally.  In State v. Coxton the Court of Appeals originally dismissed a criminal defendant’s appeal for failure to give proper notice of appeal and further denied the defendant’s petition for writ of certiorari because it was filed more than eight months after the judgment being appealed from without any explanation for the delay.  The defendant appealed to the Supreme Court of North Carolina, which dismissed his appeal, but on its own motion vacated the denial of the petition for writ of certiorari and instructed the Court of Appeals to grant the petition.

On remand, the defendant did not fare much better in terms of the Court of Appeals’s view of his compliance with the appellate rules.  The Court ruled today in an unpublished opinion that the defendant effectively abandoned his appeal because he (1) “failed to make a required argument,” and (2) “failed to support the argument he did make with citations to required legal authority.”  The Court held that such failures ran afoul of Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, which mandates that an appellant’s brief “contain the contentions of a party with respect to each issue presented” and that “[i]ssues not presented in a party’s brief, or in support of which no reason or argument is stated, will be taken as abandoned.”  The rule further states that the argument “shall contain citations of the authorities upon which the appellant relies.”

In this case, which involved a crime with an “acting in concert” theory, the defendant contended on appeal that the evidence at trial was insufficient to prove that he and a cohort had a common purpose to commit the crime and the trial court therefore should have dismissed that charge.  However, the defendant made no argument in his brief that the State failed to meet its burden of proof with respect to this particular charge, and the Court of Appeals therefore deemed the argument abandoned.

The Court further noted that with respect to the defendant’s argument that the facts of the case were insufficient to submit the acting in concert charge to the jury, the defendant did not include any citations to legal authority in support of that argument.  The Court stated, “Failure to cite to supporting authority is a violation of Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, and constitutes an abandonment of the argument.  It is not the role of the appellate courts to create an appeal for an appellant.”  However, this language comes from caselaw that appears to be interpreting a prior version of Rule 28(b)(6).  That prior version had referenced citation to “authority” in the sentence of the rule that speaks specifically to abandonment, but a 2009 amendment removed “authority” from that portion of the rule.  See here.  Rule 28(6)(b) appears now to only require a “reason or argument” in support of an issue to avoid abandonment.  In light of the revised rule it is therefore debatable whether, standing alone, the failure to cite authority would have supported abandonment of the defendant’s argument.

NOTE: Even though the Court could have affirmed based solely on the abandonment of the argument necessary to the appeal, it went on to address the merits of the defendant’s case and held that the trial court did not commit error in denying his motion to dismiss certain criminal charges.

–Patrick Kane

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One Response to "Appellate Rule 28 and Abandonment of an Argument"

  • Beth Scherer
    February 4, 2018 - 8:00 pm Reply

    This is a follow-up that is hard to believe, but after counsel was chastised again in the Court of Appeals, he found it necessary to file a Motion to Deem Petition for Discretionary Review Timely Filed, which the Supreme Court granted.

    State v. Coxton, 369 N.C. 182, 794 S.E.2d 516 (2016)

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