State v. Cook

• Court: Court of Appeals of North Carolina
• Decided: October 7, 2014
• Docket: 14-393
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-393 NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

STATE OF NORTH CAROLINA

v. Durham County No. 13 CRS 57905 WILLIAM TARRELL COOK

On writ of certiorari to review judgment entered 19

September 2013 by Judge Paul C. Ridgeway in Durham County

Superior Court. Heard in the Court of Appeals 25 August 2014.

Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.

Kerri L. Sigler, for defendant-appellant.

CALABRIA, Judge.

William Tarrell Cook (“defendant”) appeals a judgment

entered upon his plea of no contest to charges of assault on a

female and interference with emergency communications. We

affirm.

On 8 August 2013, an argument ensued between defendant and

the mother of his children, Liane Chestnut (“Chestnut”). During -2- the course of the altercation, defendant grabbed Chestnut by the

neck and applied pressure, bit Chestnut’s finger, and kicked her

when she fell to the floor. When Chestnut attempted to call

911, defendant grabbed her phone and removed the battery.

Defendant was subsequently arrested and charged with assault by

strangulation, assault on a female, and interference with

emergency communication.

On 19 September 2013, defendant entered into a plea

arrangement whereby he pled guilty to the charges of assault on

a female and interference with emergency communication in

exchange for dismissal of the charge of assault by

strangulation. The trial court consolidated the two charges

into one judgment and sentenced defendant to 150 days in the

North Carolina Division of Adult Correction. That sentence was

suspended, and defendant was placed on twelve months of

supervised probation. Defendant filed a pro se notice of appeal

on 25 September 2013.

As an initial matter, we must address defendant’s notice of

appeal. Defendant’s appellate counsel acknowledges that

defendant did not give oral notice of appeal after entering his

plea, but instead filed a written pro se notice of appeal in the -3- trial court on 25 September 2013. Pursuant to N.C.R. App. P. 4

(2013), a written notice of appeal

shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record.

In addition, the appealing party must serve copies of the notice

“upon all adverse parties.” Id.

In the instant case, defendant’s notice of appeal did not

identify the court to which defendant appealed and did not

include proof of service on the State. “[W]hen a defendant has

not properly given notice of appeal, this Court is without

jurisdiction to hear the appeal.” State v. McCoy, 171 N.C. App.

636, 638, 615 S.E.2d 319, 320 (2005). However, a writ of

certiorari may be issued to permit review of the judgments and

orders of trial tribunals “when the right to prosecute an appeal

has been lost by failure to take timely action[.]” N.C.R. App.

P. 21(a)(1) (2013).

Defendant contends that although his notice of appeal does

not wholly comply with the requirements of our appellate rules,

it still demonstrates his timely intent to appeal from the

judgments, and he seeks a belated appeal. In response, the -4- State argues the petition should be denied because defendant

pled no contest and thus only had a limited right to appeal.

However, even in cases where a defendant enters a plea of

no contest and is convicted of a felony, he has a statutory

right to appellate review of certain aspects of the resulting

judgment. See N.C. Gen. Stat. § 15A-1444(a1) and (a2) (2013).

Moreover, this Court has the authority to issue its writ of

certiorari to permit belated appeals in support of a defendant’s

statutory right to appeal. State v. Mungo, 213 N.C. App. 400,

403, 713 S.E.2d 542, 544-45 (2011). Accordingly, while we find

that defendant’s notice of appeal was insufficient to invoke the

jurisdiction of this Court, we elect to exercise our discretion

to permit appellate review pursuant to N.C.R. App. 21 and N.C.

Gen. Stat. § 7A-32(c) (2013).

Defendant’s appellate counsel has been unable to identify

any issue with sufficient merit to support a meaningful argument

for relief on appeal and asks that this Court conduct its own

review of the record for possible prejudicial error. Counsel

has shown to the satisfaction of this Court that she has

complied with the requirements of Anders v. California, 386 U.S.

738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99,

331 S.E.2d 665 (1985), by advising defendant of his right to -5- file written arguments with this Court and providing him with

the documents necessary for him to do so.

Defendant has not filed any written arguments on his own

behalf with this Court, and a reasonable time in which he could

have done so has passed. In accordance with Anders, we have

fully examined the record to determine whether any issues of

arguable merit appear therefrom. We have been unable to find

any possible prejudicial error and conclude that the appeal is

wholly frivolous. Therefore, the trial court’s judgment is

affirmed.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).