Criminal Practice – Right to Appeal – Petition for Writ of Certiorari

Defendant failed to show that the loss of the right to appeal was due to some error or act of the court or its officers, and not to any fault or neglect of his own.

We dismissed Defendant’s appeal and denied his petition for writ of certiorari.

Defendant appealed from the trial court’s judgments entered upon a jury’s verdicts finding him guilty of assault with a deadly weapon with intent to kill and possession of a firearm by a felon.

Defendant’s case came on for jury trial in 2024. At the conclusion of the trial, the jury returned verdicts finding Defendant guilty of assault with a deadly weapon with intent to kill and possession of a firearm by a felon. The trial court entered judgments against Defendant sentencing him to a term of 33 to 52 months’ imprisonment for his conviction for assault with a deadly weapon with intent to kill and a consecutive term of 13 to 25 months’ imprisonment for his conviction for possession of a firearm by a felon.

During the court’s pronouncement of its second judgment, Defendant physically assaulted his trial attorney. Bailiffs subdued Defendant, took him into Sheriff’s custody, and removed him from the courtroom; Defendant’s counsel was helped to judge’s chambers to receive medical attention. While Defendant’s trial attorney had earlier indicated his intent to give oral notice of appeal “at the appropriate time,” Defendant’s assault of counsel rendered his trial attorney unavailable to give oral notice of appeal upon entry of the final judgment. Defendant was also unavailable to give oral notice of appeal after entry of the final judgment, as he had been taken into custody and removed from the courtroom following the attack. In counsel’s absence, the court stated that defense counsel “does give[ ] notice of appeal.” The record on appeal does not contain a written notice of appeal.

Although we lack authority to review his direct appeal, this Court may exercise its discretion pursuant to N.C.R. App. P. 21 to consider the matter by allowing Defendant’s petition for writ of certiorari. Defendant maintained that his petition should be allowed because: 1) “[A]s the record demonstrated, [Defendant] intended to appeal and took reasonable efforts to give notice of appeal”; 2) “[T]he record is silent on the issue of whether . . . [D]efendant was aware that his attorney was not in the courtroom to give proper notice of appeal”; and 3) Defendant “has four meritorious issue[s] to present on appeal.” Yet, Defendant admitted in his petition for writ of certiorari that “the right to appeal was most likely waived unfortunately as a result of his actions.” It is plain that Defendant was not without fault in the loss of his appeal where it stemmed from his attack of his trial counsel during sentencing and subsequent failure to file a written notice of appeal. Thus, Defendant failed to demonstrate that the “loss of the right to appeal [was] due to some error or act of the court or its officers, and not to any fault or neglect of” his own.

Dismissed.

State of North Carolina v. Jordan (Lawyers’ Weekly No. 011-300-25, 7 pp.) (Valerie Zachary, J.) Appealed from Nash County Superior Court (Timothy W. Wilson, J.) Attorney General Jeff Jackson, by Assistant Attorney General Wendy J. Lindberg, for the State. Johneric C. Emehel for defendant-appellant. North Carolina Court of Appeals