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Supreme Court Reaffirms That Non-Constitutional Sentencing Arguments Are Automatically Preserved for Appellate Review

In October 2018, I gave a CLE presentations with (now recently sworn in) Judge Allegra Collins: “Life Preservers on the Titanic: Issues Not Properly Preserved for Appellate Review.”  Part of the presentation posed this question: Can the General Assembly enact a rule or law that automatically preserves certain issues for appellate review?  At the time, the answer to that question was as follows:

  • YesSee Duke Power Co. v. Winebarger, 300 N.C. 57, 265 S.E.2d 227 (1980)
  • NoSee State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819 (2007)
  • Maybe.  See State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010)
  • To Be Determined.  See State v. Meadows, 806 S.E.2d 682 (N.C. Ct. App. 2017), review allowed, 812 S.E.2d 847 (N.C. 2018) (mem. order)

The uncertainty regarding this answer is linked to the jurisprudence surrounding a portion of Appellate Rule 10, which states that an appellate court will review any issue “which by rule or law was deemed preserved”—even in the absence of a timely objection.  N.C. R. App. P. 10(a)(1) (emphasis added).

In the early 1980s, Duke Power explained that this “rule or law” exception is essentially an authorization by the Supreme Court for the General Assembly to identify particular issues that are preserved for appellate review absent a normal objection.  See Duke Power Co. v. Winebarger, 300 N.C. 57, 265 S.E.2d 227, 234 (1980) (“It is thus Appellate Rule 10 in conjunction with Civil Procedure Rule 46 which” preserves this issue for appellate review.).

Duke Power’s reign over Appellate Rule 10 was short-lived.  Shortly after Duke Power was issued, the Supreme Court—without discussing the “rule or law” exception or Duke Power—began striking down as unconstitutional a host of statutes that sought to automatically preserve particular issues for appellate review.  State v. Elam, 302 N.C. 157, 160, 273 S.E.2d 661, 664 (1981) (statute purporting to automatically preserve constitutional issues for appellate review was itself unconstitutional); State v. Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790 (1983) (statute purporting to automatically preserve jury instructions errors for appellate review unconstitutional); State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987) (statute purporting to automatically preserve insufficiency of the evidence arguments for appellate review unconstitutional); State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (Evidence Rule 103(a) unconstitutional).

Based on this 25-plus year stretch from Elam to Oglesby, the “rule or law” exception to Appellate Rule 10 seemed functionally dead.  As it turns out, those rumors were greatly exaggerated.

Three years after it decided Oglesby, the Supreme Court in State v. Mumford partially revived the “rule or law” exception to uphold the constitutionality of N.C. Gen. Stat. § 15A-1446(d)(18)—a statute which provides that sentencing issues are preserved for appellate review even when no objection was made at the sentencing hearing. Mumford set out a framework for determining when a statute can automatically preserve issues for appellate review under “the rule or law” exception.

Nonetheless, a split developed in the Court of Appeals as whether sentencing issues really were preserved for appellate review. The underlying basis for that split was explained by the Court of Appeals in State v. Meadows, a decision we blogged on here.  The Supreme Court accepted Meadows for discretionary review in early 2018.

When Meadows reached the Supreme Court, the State of North Carolina wasted no time in asking the Supreme Court to overrule State v. Mumford and to strike down § 15A-1446(d)(18)—and with it, the rule or law exception to Appellate Rule 10.  [BTW: Do not count on the State to defend the constitutionality of its own statutes—particularly in criminal cases. The State’s hostility to the State’s own error-preservation statutes may explain why Duke Power and the “rule or law” exception went MIA for over 25 years.  Rather, the job of defending these error-preservation statutes has been taken up by criminal defense attorneys.  Shout out to Mike Casterline for a well-researched Supreme Court brief in Meadows].

In any event, the Supreme Court in its December 2018 opinion used State v. Meadows to reaffirm that Appellate Rule 10’s “rule or law” exception is still breathing—but only for non-constitutional arguments.  Consistent with Elam, constitutional sentencing arguments must be raised at the sentencing hearing to be fully preserved for appellate review—including when those constitutional arguments are “intertwined with” non-constitutional sentencing issues.

Meadows also placed a pragmatic spin on Appellate Rule 10, explaining that a key purpose of Appellate Rule 10 is to discourage gamesmanship.  Because the sentencing court either “knew or should have known” that the defendant was seeking “the minimum possible sentence,” a contemporaneous objection for non-constitutional sentencing issues is not required by Appellate Rule 10 itself.

Meadows’s fact-based analysis of the underlying purpose of Appellate Rule 10 is an interesting development.  North Carolina’s error preservation jurisprudence is not always a model of intuitiveness or practicality.  Sometimes, dotting all the error-preservation “i’s” can veer dangerously close to stepping on the last nerve of a trial judge eager to move his or her docket along.

Will Meadows’s injection of a bit of pragmatism spill-over into other Appellate Rule 10 areas? Maybe ask that question again in another 25 years!

–Beth Scherer

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