The Appellate Rules Trump Statutory Jurisdiction in State v. Biddix
By Paul M. Cox
The jurisdiction of the North Carolina Court of Appeals is determined by statute. See N.C. Const. art. IV, § 12(2). But the practice and procedure of appellate jurisdiction is determined by the North Carolina Rules of Appellate Procedure. See N.C. R. App. P. 1(b). So what happens if a statute provides for jurisdiction over an appeal, but the appellate rules appear to disallow such an appeal as a matter of procedure? According to a recent decision by the Court of Appeals, the appellate rules prevail, and the appeal will be dismissed.
This decision raises key questions about the interpretation of the state’s appellate rules and the scope of the writ of certiorari, which was the vehicle for the appeal in this case.
In State v. Biddix, No. COA 15-161, 2015 WL 8730717 (N.C. Ct. App. Dec. 15, 2015), the court considered whether a criminal defendant, who pleaded guilty pursuant to a plea agreement, may appeal his conviction for the reason that his guilty plea was not the product of an informed choice. Mr. Biddix, who had a ninth-grade education and had never participated in a felony plea and sentencing, agreed to plead guilty to a drug offense in exchange for the State pledging not to argue for aggravating sentencing factors. However, in the plea agreement, as part of the factual basis for his plea, Biddix admitted to the existence of an aggravating factor. Although the State refrained from arguing for an aggravated sentence, the court incorporated the aggravating factor into the sentence. On appeal, Biddix argued that his guilty plea could not have been the product of an informed choice when the plea agreement included both an admission of an aggravating factor and the State’s pledge not to argue for a sentence incorporating an aggravating factor.
But before Biddix could even make his case before the Court of Appeals, he had to surmount the hurdle of appellate jurisdiction. In North Carolina, a criminal defendant may appeal, as of right, a sentence following a guilty plea in only a few circumstances, which generally involve legal errors in the calculation of the sentence. See N.C. Gen. Stat. § 15A-1444(a1), (a2). Otherwise, a defendant may petition for review by writ of certiorari. See id. § 15A-1444(a1), (e). Biddix made such a cert petition.
Here’s where the appellate rules come into play. Under Appellate Rule 21, the writ of certiorari permits an appeal from the trial court in just a few circumstances, none of which apply to an appeal from a sentence following a guilty plea. See N.C. R. App. P 21(a)(1).
So, to recap, the General Assembly has said that a criminal defendant may appeal a sentence following a guilty plea through a writ of certiorari, but the appellate rules do not provide for a writ of certiorari to issue in such a situation.
Faced with this conflict, the Court of Appeals decided that, although the court has jurisdiction over Biddix’s appeal per the statute, the appellate rules nonetheless preclude the court from considering the appeal. Biddix, 2015 WL 8730717 at *9. Accordingly, the court dismissed Biddix’s appeal.
This opinion raises a number of issues for appellate practitioners. First, the decision is in tension with Appellate Rule 1, which prohibits courts from construing the rules to “limit the jurisdiction of the courts of the appellate division as that is established by law.” N.C. R. App. P. 1(c).
The law appears to confer appellate jurisdiction over guilty pleas by writ of certiorari, yet the appellate rules have been construed to frustrate that jurisdiction. This leaves practitioners to wonder whether the appellate rules have acquired some sort of quasi-jurisdictional status, such that they may bar consideration of the merits despite the court technically having jurisdiction over the matter. That would raise further questions regarding the separation of powers if, for example, the legislature can grant a right to appeal in statute, and then the Supreme Court can abrogate that law by drafting rules of procedure that disallowed the appeal.
This decision also appears to conflict with State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015), in which the North Carolina Supreme Court determined that an appellant may petition for certiorari where a statute provides for such a petition, even though the cert petition is not specifically authorized in Appellate Rule 21. The Court of Appeals interpreted Stubbs to be limited to the type of appeal addressed in that case: an appeal from the grant of a motion for appropriate relief. Biddix, 2015 WL 8730717 at *7—8. But as the dissent in Biddix highlighted, this is a distinction without a difference, because in Stubbs, the Supreme Court relied on Appellate Rule 1 to conclude that the absence of an authorization for an appeal in the appellate rules cannot trump the authorization of an appeal in statute. Id. at *11 (Geer, J., dissenting); Stubbs, 770 S.E.2d at 76.
One commentator has highlighted a broader question raised by this case. The decision appears to limit “the most powerful tool in the appellate court’s arsenal,” the writ of certiorari, which has historically been used by appellate courts to take action that is “clearly necessary to either prevent great harm to some worthy party or to protect our judicial system.” Beth Scherer, The Writ of Certiorari: A Somewhat Less Powerful Tool (Part II)?, N.C. App. Prac. Blog (Dec. 23rd, 2015). Limiting the writ could have an impact on the availability of appeals beyond the criminal guilty plea context. There are many decisions that are traditionally reviewed by the Court of Appeals under the certiorari power, despite there being no mention of these types of appeals in Appellate Rule 21. Some examples include the review of judicial settlement orders, orders settling the record on appeal, and notices of appeal that are timely filed but jurisdictionally deficient for some other reason. Id.; Beth Scherer, The Writ of Certiorari—A Somewhat Less Powerful Tool?, N.C. App. Prac. Blog (Oct. 7, 2015).
Ms. Scherer suggests that an alternative approach to this issue would be to recognize that the writ of certiorari is not narrowly circumscribed by the appellate rules, but is a broad discretionary power grounded in the common law. This would comport with the General Assembly’s general grant of authority to the court of appeals “to issue the prerogative writs, including . . . certiorari . . . in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts.” N.C. Gen. Stat. § 7A—32(c).
Putting aside the question of the potentially more far-reaching impacts of this decision on the writ of certiorari, an appellant like Mr. Biddix faces a much more basic quandary: The law gives him a right to request appellate review, but what use is that right if the appellate rules keep him from making that request in the first place? A notice of appeal has been filed in Biddix, based on the dissent. The Supreme Court now has the opportunity to further clarify how courts should navigate the conflicts between the statutes and the rules governing appeals.
* A version of this article was originally published in the March 2016 issue of the North Carolina Bar Association Appellate Practice Section Newsletter.