In its 6 February 2018 tranche of opinions, the Court of Appeals addresses Rule 2 of the Rules of Appellate Procedure at length in State v. Campbell. Appellate Rule 2 allows suspension of the Rules of Appellate Procedure “[t]o prevent manifest injustice to a party, or to expedite decision in public interest.” The analysis in Campbell gives helpful guidance as to when the rule may be invoked while at the same time providing insight into the appellate courts’ concerns about consistent application of the rule.
This is the third time Campbell has been before the COA and it looks like the case is all dressed up for a third trip to the Supreme Court. Here’s the history:
Defendant Campbell was convicted at trial of the felonies of breaking and entering a church, and larceny. In his initial appeal to the COA, defendant raised six issues. The COA addressed two, finding that the indictment was defective because it failed to allege that the church was capable of owning property, and also finding that the evidence of felonious intent was insufficient. Accordingly, that court vacated defendant’s larceny conviction and reversed his conviction of felony breaking and entering, remanding to the trial court for resentencing on the offense of misdemeanor breaking and entering. 234 N.C. App. 551, 759 S.E.2d 380 (2014). On discretionary review, the Supreme Court reversed the COA, holding that a legal entity such as a church or a corporation can own property. The Supreme Court further found that sufficient evidence supported defendant’s conviction of felony breaking and entering a place of religious worship. That Court remanded the case to the COA for consideration of defendant’s remaining issues. 368 NC 83, 772 S.E.2d 440 (2015).
On remand, the COA held that defendant had not been denied effective assistance of counsel but reversed defendant’s larceny conviction, finding a fatal variance between the allegations in the indictment and the proof presented at trial as to the ownership of the property. However, the variance issue had not been preserved below, so the COA could reach it only after invoking Appellate Rule 2. 243 N.C. App. 563, 777 S.E.2d 525 (2015). The COA justified its decision to invoke the Rule in two sentences: “In State v. Gayton-Barbosa, this Court invoked Rule 2 to review a similar fatal variance argument and held that this type of error is ‘sufficiently serious to justify the exercise of our authority under [Rule 2].’ 197 N.C. App. 129, 134, 676 S.E.2d 586, 589-90 (2009). Accordingly, we exercise our discretion under Rule 2 to review this issue.”
Back went the case to the Supreme Court, which granted discretionary review (again). In reversing the COA, the Supreme Court determined that the “Court of Appeals did not reach the merits of defendant’s fatal variance argument after an independent determination of whether the specific circumstances of defendant’s case warranted invocation of Rule 2, but rather, based upon a belief that ‘this type of error’ automatically entitles an appellant to review via Rule 2.” The Supreme Court remanded the case to the COA with instructions to “independently and expressly determine whether, on the facts and under the circumstances of this particular case, to exercise its discretion to employ Rule 2 of the North Carolina Rules of Appellate Procedure to suspend Rule 10(a)(1), and consider the merits of defendant’s fatal variance argument.” 369 N.C. 599, 604, 799 S.E.2d 600, 603 (2017).
Beth blogged on the Supreme Court’s opinion in Round Two at the time of the Supreme Court’s remand. She pointed out that (1) sweeping and sometimes unsettling changes in appellate law often originate in under-the-radar criminal appellate opinions, and (2) that this case could represent a sea change in how closely the Supreme Court polices the COA’s exercise of its discretionary authority under Appellate Rule 2, in both civil and criminal appeals.
This most recent opinion has teed up these underlying issues for yet another round in the Supreme Court.
The 6 February 2018 opinion, authored by Judge Stroud and joined by Judge Arrowood, with a dissent by Judge Berger, is the COA’s response. The two-sentence justification for invoking Appellate Rule 2 found in Round Two has been expanded to a 17 page explanation of the COA’s determination to apply the Rule in this particular case. Although hints of mild exasperation are detectable, the opinion is thorough and detailed, carefully carrying out the mandate of the Supreme Court. While the opinion deals with a myriad of issues, this post will focus solely on the COA’s analysis and what it reveals about the factors involved in a decision whether or not to apply Appellate Rule 2.
The opinion notes that the Supreme Court of North Carolina has observed that profligate and unguided application of Rule 2 can have significant consequences. Federal courts considering petitions for habeas corpus seeking federal review of a state conviction traditionally have found that a defendant’s failure to follow a state’s procedural rules constitutes an “adequate and independent state ground” barring federal habeas review. State v Hart, 361 N.C. 309, 317, 644 S.E.2d 201, 206 (2007), citing Wainwright v. Sykes, 433 U.S. 72, 81, 97 S. Ct. 2497, 2503, 53 L.Ed.2d 594, 604 (1977). But when those state procedural rules are not “consistently and regularly” applied, the federal court may find that the state rule is not an adequate and independent ground barring federal review of a state issue. State v. Hart, 361 N.C. at 317, 644 S.E.2d at 206, citing Johnson v. Mississippi, 486 U.S. 578, 589, 108 S. Ct. 1981, 1988, 100 L.Ed.2d 575, 586 (1988). In other words, unless all the rules of appellate procedure are properly invoked, federal courts may determine that those rules are inconsistently and capriciously applied, leading to federal court intervention.
With this background in mind, the COA cited and reviewed every criminal case it could find, published and unpublished, in which a North Carolina appellate court considered whether to invoke Appellate Rule 2 to reach an otherwise unpreserved argument based upon an allegedly fatal variance between the allegations in the indictment and the evidence presented at trial. [I cannot resist noting that, in her thoroughness, Judge Stroud cites numerous unpublished opinions despite her publically-avowed distaste for doing so.]
Four general scenarios emerged from this research. In the majority of cases where review of the variance issue was allowed, the defendant raised a meritorious argument that the reviewing court determined would lead to a reversal of the conviction upon review. In such cases, failure to allow review would result by definition in “manifest injustice.” In other cases, Rule 2 was invoked but, upon review, no fatal variance was found and the defendant obtained no relief. In the third category of cases, the court determined that no variance existed and thus no need arose to invoke Rule 2 because the defendant was not at risk of suffering an injustice. Finally, the COA identified cases where the reviewing court declined to consider the variance issue without evaluating the merits of the issue because the question had not been preserved below and thus was waived.
From there, the COA went on to evaluate defendant’s case in light of State v. Gayton-Barbosa, 197 N.C. App. 129, 676 S.E.2d 586 (2009), whose facts closely paralleled the facts at bar. The COA concluded that its invocation of Rule 2 here had been appropriate and consistent with prior practices in the appellate division.
Judge Berger dissented, arguing that this case did not present circumstances exceptional enough to justify invoking Rule 2. Since the dissent probably gives the State the right to appeal, this case may well yo-yo between the appellate courts yet again. (I say “probably” because in Steingress v. Steingress, the Supreme Court suggested that a dissent in the COA as to whether to invoke Appellate Rule 2 might not create an appeal of right. See 350 N.C. 64, 67, 511 S.E.2d 298, 300 (1999) (“Thus, it appears the dissenting opinion in this case presents no dividing issue and is merely a vote in favor of the exercise of discretion to suspend the rules.”)).
As I mentioned above, there’s a lot to chew on in this case and I will not attempt to discuss all the angles. However, three aspects leap out. First is the Supreme Court’s concern about the unintended and even unexpected consequences that could flow from excessive and unrestrained invocations of Appellate Rule 2, as detailed in Hart. More specifically, North Carolina is a state where the death penalty is imposed and carried out following a conviction of aggravated first-degree murder. Although the state has been observing an unofficial moratorium for more than a decade, executions could begin again. If so, death row defendants will be filing habeas petitions in federal courts, alleging that the protections of state law are not consistently and uniformly applied. Should the federal courts’ review indicate that the state rules are not an adequate and independent ground for denial of federal review, those courts could preempt state control of this aspect of its jurisprudence. In short, the appellate courts not only must consider the case at hand but also must take the long view when applying the Rules of Appellate Procedure.
Second, the COA’s analysis here indicates that the appellate courts more often than not peek at the merits of an issue before deciding whether or not to call upon Appellate Rule 2. If the test for invoking that rule is a prior determination that the underlying issue appears to have legs, Rule 2 logically will apply whenever a particular issue—here, variance between pleading and proof—is convincingly raised (perhaps unless harmless error applies). In his dissent, Judge Berger argued that the majority’s approach would permit frequent invocation of Rule 2 and thus is contrary to the Supreme Court’s admonition, repeated in the Supreme Court’s opinion in this case, that Rule 2 be applied only in “exceptional circumstances.” State v. Campbell, 369 N.C. at 602, 799 S.E.2d at 603, citing numerous other Supreme Court cases.
If this case goes back to the Supreme Court, we may find out if the COA majority’s analysis is satisfactory. Since Appellate Rule 2 itself says that one of its fundamental purposes is to prevent manifest injustice, some sense of the allegations would appear to be a necessary step in deciding whether a danger of manifest injustice exists. If so, the common (but not invariable) practice of taking a preliminary look at the underlying issues seems sensible. Yet the implications of this practice may not be entirely consistent with the Supreme Court’s near-constant admonitions that the rule is to be invoked only in “rare cases.” Dogwood Development and Management Co., Inc. v. White Oak Transport Co., Inc., 362 N.C. 191, 657 S.E 2d 361 (2008).
Third, the power to invoke Appellate Rule 2 to excuse errors arising under Appellate Rule 10, which addresses preservation requirements, is a power enjoyed by both appellate courts. In the past, the Supreme Court rarely has reversed a discretionary decision by the COA to invoke Appellate Rule 2 to address a non-jurisdictional error in the trial division. The second Supreme Court opinion in this case was careful to reverse the COA opinion on the basis that the COA applied the wrong legal standard–an issue that is reviewed de novo. If the Supreme Court in Round 3 finds that the COA Round 3 majority abused its discretion in applying Appellate Rule 2, Beth’s concern in her earlier blog that this case may represent an upheaval in Appellate Rule 2 practice could prove prophetic. Appellate Rule 2 is not limited to criminal cases or to preservation issues that come under Appellate Rule 10. Instead, it represents the residual power of the appellate courts to suspend or vary the operation of any nonjurisdictional Rule of Appellate Procedure where the injustice of failing to do so is made apparent to the appellate court. See N.C. R. App. P. 2, Drafting Committee Note (1975), reprinted at 287 N.C. 671, 680
So, while appellate courts historically have been deferential to discretionary decisions made by judges in the trial division, will the Supreme Court apply a less deferential review to a discretionary decision by a COA panel? Who has the better argument here? What are your experiences with Appellate Rule 2? Will the application of Appellate Rule 2 be limited by the Supreme Court? Will its decision apply to all cases or to criminal appeals only? Please share your thoughts with us and the other readers of this blog in the comments below.