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COA declines to flex “superpower” to grant writs

COA declines to flex “superpower” to grant writs


The North Carolina Court of Appeals has declined to review the denial of a Johnston County man’s motion to suppress evidence, in a decision where a divided panel grappled with seemingly conflicting opinions from prior cases, and the extent of its own power to grant writs to hear appeals.

Van Buren Killette Sr. moved to suppress evidence of items seized during a 2014 search. The trial court denied the motion, and in 2017 Killette entered an Alford plea, pursuant to a plea agreement, to two counts of manufacturing methamphetamine. In exchange, prosecutors dismissed the other charges against him. The trial court sentenced Killette to 120 to 156 months in prison, consistent with the plea deal.

Killette then filed a pro se notice of appeal. Counsel was appointed and petitioned for a writ of certiorari, arguing that the trial court erred by denying the motion to suppress.

But the Court of Appeals, in a Nov. 5 decision not only denied Killette’s request for a direct appeal—because he failed to provide notice to the prosecutor and the court of his intent to ask for appellate review prior to finalizing plea negotiations—it also refused to exercise its discretion to grant the writ.

Killette cited a decision with similar facts that allowed a discretionary writ of certiorari, but Judge John M. Tyson, writing for the majority, said the panel was required to follow earlier opinions that stressed the importance of a defendant’s prior notice of intent to appeal during the plea bargaining process.

“Here, the wisdom of this reasoning is plainly evident,” Tyson wrote. “Defendant knew his motions to suppress were denied. He received the full benefit of his bargain and failed to place the state or the trial court on any notice he intended to reserve the right to appeal. Defendant’s failure to provide the required notice to the state and the trial court damages the integrity of the plea bargaining process.”  

Can’t get no relief

In addition, Tyson said, the Court of Appeals “has repeatedly held that when a defendant pleads guilty without first notifying the state of the intent to appeal a suppression ruling, the defendant ‘has not failed to take timely action,’ and thus ‘this court is without authority to grant a writ of certiorari’ … Rather, as in other cases involving a guilty plea, the right to appeal was lost because the defendant pleaded guilty, thereby waiving the right to appeal, and not because he failed ‘to take timely action.’”

Under Appellate Rule 21, a petition for a writ of certiorari may be allowed in this context only if the defendant’s right to prosecute the appeal “has been lost by failure to take timely action,” Tyson said.

To encourage the grant of his writ of certiorari, Killette pointed to a Court of Appeals decision in State v. Davis, where the panel allowed a discretionary writ of certiorari in a similar circumstance.

But other panels in cases such as State v. Tew, State v. Pimental and State v. Harris have refused to exercise their discretion, Tyson noted, and “when faced with two arguably inconsistent opinions from separate panels,” the Supreme Court has instructed that “we must follow the earlier opinion.”

Under “well-settled precedents, we disregard Davis and follow Tew, Pimental and [Harris] as the earlier, binding precedents,” Tyson wrote. The trio of cases “correctly apply the law,” he said.

“In previous cases, our Supreme Court and this court have stressed the importance of a defendant’s prior intent to appeal as a way to alert the state, during the plea bargaining process, that the defendant may seek to appeal the denial of the motion to suppress.”

Killette entered an Alford plea pursuant to a plea arrangement with the state on the two counts of manufacturing methamphetamine and in exchange, the state dismissed the remaining charges, Tyson wrote.

“If defendants can so easily circumvent the fairness requirement that the state be informed of a defendant’s intent to appeal prior to concluding the plea agreement, the state may offer fewer plea bargains,” he said.

Even if Tew, Pimental and Harris were not binding, Tyson said the panel would decline to exercise any judicial discretion to allow Killette’s petition.

“The fact this court possesses the jurisdictional power to allow in our discretion, does not compel us to do so under defendant’s burden to show prejudicial reversible error and the clearly unmeritorious facts before us,” he wrote. The court denied the petition for a writ of certiorari to review “the unpreserved and waived” suppression rulings.

Judge Lucy Inman concurred, albeit with a disagreement about the extent of the court’s discretion. The Supreme Court’s 2018 decision in State v. Ledbetter held “that Rule 21 does not limit, determine or otherwise modify this court’s ‘jurisdictional discretionary authority’ to issue writs of certiorari,” she wrote.

“While I agree that the analysis in the prior decisions cited by the majority may be instructive to the exercise of our discretion when reviewing a petition for certiorari review of an appeal following a guilty plea—and that defendant’s petition for writ of certiorari should be denied in our discretion—I disagree with the conclusion that these prior decisions foreclose a full exercise of our authority and discretion in reviewing defendant’s petition in this case,” she said.

A long history of confusion

Raleigh attorney Elizabeth Brooks Scherer, co-author of North Carolina Appellate Practice and Procedure, said the decision continues the “long history” of confusion surrounding the Court of Appeals’ “superpower” of discretionary writ of certiorari.

Despite a series of opinions—most recently, in Ledbetter—from the Supreme Court that Appellate Rule 21 doesn’t impact either the jurisdictional or procedural authority of the Court of Appeals to issue writs, the panel in Killette appeared to be concerned that the Court had not explicitly overruled decisions such as Tew, Pimental and Harris, she said.

“There is still some confusion surrounding whether the limiting language of Appellate Rule 21 has an impact on whether or not a party can get cert review,” Scherer said. “It could depend on the panel that you get.”

Killette’s attorney, Katy Dickinson-Schultz of the Appellate Defender’s Office, said her client plans to continue to litigate the issue, relying on Judge Inman’s concurrence.

“People still think that Appellate Rule 21 somehow controls how the court can use its authority to grant these types of petitions,” she said. “It seems clear to us in this office—and Judge Inman as well—that is not true. The Court of Appeals has broad discretionary authority to issue these types of writs.”

Assistant Attorney General Nancy Dunn Hardison represented the government. A spokesperson for the Attorney General’s Office declined comment other than to note that “the office is reviewing the decision.”

The 11-page decision is State v. Killette (Lawyers Weekly No. 011-287-19). The full text of the opinion is available online at

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