Criminal Practice – MAR — Sentencing – Constitutional – Eighth Amendment – Proportionality – Second Degree Burglary – Life Sentence – Parole Possibility

State v. Stubbs (Lawyers Weekly No. 14-07-0117, 43 pp.) (Wanda G. Bryant, J.) (Linda Stephens & Chris Dillon, JJ., concurring separately) Appealed from Cumberland County Superior Court (Gregory A. Weeks, J.) N.C. App.

Holding: Even though a life term is a severe sentence for a second-degree burglary committed while defendant was still a minor, since there is the possibility of parole (in fact defendant was paroled, drove while impaired, and had his life sentence reinstated), the sentence is not cruel or unusual in the constitutional sense.

We reverse the trial court’s order modifying defendant’s original sentence.

Concurrence

(Dillon, J.) I believe that the panel of this court which considered the state’s petition for a writ of certiorari had the authority to grant the writ, notwithstanding that an appeal by the state from an order granting a defendant’s motion for appropriate relief is not among the circumstances contained in N.C.R. App. P. 21; therefore, we are bound by the decision of that panel.

Dissent

(Stephens, J.) In matters such as the exercise of discretion, factual determinations, and legal rulings, one panel of this court cannot overrule another. However, determination of subject matter jurisdiction presents a different situation.

My careful review of our General Statutes, along with a plain reading of State v. Starkey, 177 N.C. App. 264, 628 S.E.2d 424, cert denied, 636 S.E.2d 196 (2006), reveals no authority for the state’s purported appeal or petition for writ of certiorari here.

In State v. Whitehead, 365 N.C. 444, 722 S.E.2d 492 (2012), our Supreme Court, exercising its constitutional general supervisory authority, allowed the state’s petition for writ of certiorari to review the identical issue as is raised in the case at bar, with no prior review by this court. This suggests that the state’s procedure in Whitehead, to wit, seeking review of the trial court’s motion for appropriate relief decision via petition for certiorari directly to the Supreme Court, is the proper route for this appeal.

This court lacks jurisdiction to review the state’s arguments by direct appeal, writ of certiorari, or any other procedure.