IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-80
No. 379PA18-2
Filed 17 June 2022
STATE OF NORTH CAROLINA
v.
VAN BUREN KILLETTE, SR.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 268 N.C. App. 254 (2019), dismissing defendant’s appeal and
denying defendant’s petition for writ of certiorari after remand by this Court after
appeal from a judgment entered on 6 July 2017 by Judge Thomas H. Lock in Superior
Court, Johnston County. Heard in the Supreme Court on 11 May 2022.
Joshua H. Stein, Attorney General, by Nicholas R. Sanders, Assistant Attorney General, for the State-appellee.
Glenn Gerding, Appellate Defender, by Katy Dickinson-Schultz, Assistant Appellate Defender, for defendant-appellant.
HUDSON, Justice.
¶1 Defendant petitioned this Court for review of a unanimous decision of the
Court of Appeals. Upon review, we vacate and remand to the Court of Appeals.
I. Background
¶2 In August and September of 2014, the Johnston County Sheriff’s Office
received anonymous tips by phone that Van Buren Killette Sr. (defendant) was STATE V. KILLETTE
Opinion of the Court
manufacturing and selling methamphetamine in his home, as well as receiving stolen
property. After learning that defendant was on probation at the time, Detective C.J.
House and Detective Jay Creech of the Johnston County Sheriff’s Office contacted
Officer Ashley McRae, defendant’s probation officer. Officer McRae agreed to conduct
a search of defendant’s home.
¶3 On 30 September 2014, after arriving at defendant’s home, Officer McRae
asked defendant for permission to conduct a search. Defendant consented to the
search. The search uncovered stolen property and items frequently used to
manufacture methamphetamine. Defendant was subsequently indicted for breaking
or entering, larceny, manufacturing methamphetamine, possession of
methamphetamine precursors, possession of methamphetamine, maintaining a
dwelling for the purpose of keeping and selling a controlled substance, and conspiring
to manufacture methamphetamine.
¶4 On 18 June 2015, Department of Social Services Agent M. Williams and
detectives from the Johnston County Sheriff’s Office were investigating an unrelated
drug complaint. However, the subject of that separate investigation informed the
officers that she frequently provided defendant with pseudoephedrine in exchange for
methamphetamine. Because Agent Williams had reason to believe that children
might be present and at risk in defendant’s home, officers visited defendant’s home
that same night. Upon arriving, they observed several individuals fleeing defendant’s STATE V. KILLETTE
home and running towards the woods. Believing that they could smell
methamphetamine in defendant’s home, the officers conducted a “safety sweep” of the
home and quickly identified equipment and ingredients used to manufacture
methamphetamine. The next day, 19 June 2015, Detective Jason Guseman of the
Johnston County Sheriff’s Office applied for, received, and executed a search warrant.
Officers seized methamphetamine, precursor chemicals, manufacturing equipment,
and other evidence from defendant’s home. Defendant was charged with
manufacturing methamphetamine, possession of precursor chemicals, conspiracy to
manufacture methamphetamine, resisting a public officer, and trafficking in
methamphetamine.
¶5 On 29 March 2017, defendant filed two motions to suppress the evidence
obtained via the 2014 and the 2015 searches. The motion to suppress the 2014
evidence was heard on 3 May 2017. A written order denying the motion to suppress
was entered by Judge Thomas H. Lock on 7 July 2017. The motion to suppress the
2015 evidence was denied on 18 May 2017, and a written order to that effect was
entered by Judge Beecher Gray on 7 June 2017.
¶6 On 6 July 2017, defendant pled guilty to two counts of manufacturing
methamphetamine. The charges were consolidated and defendant received an active
sentence of 120 to 156 months. In exchange for defendant’s plea, the State dismissed
the remaining charges. STATE V. KILLETTE
¶7 On 10 July 2017, defendant filed a handwritten notice of appeal. On appeal,
defendant only challenged the denial of his motion to suppress evidence obtained
during the 2014 search. Because defendant failed to notify the State of his intent to
appeal prior to the entry of his plea agreement, defendant also petitioned for a writ
of certiorari in an attempt to secure review of the trial court’s order regarding the
evidence from the 2014 search.
¶8 On 2 October 2018, the Court of Appeals dismissed defendant’s appeal and
denied his petition for a writ of certiorari. State v. Killette (Killette I), No. 18-26, 2018
WL 4701970, at *3 (N.C. Ct. App. Oct. 2, 2018) (unpublished). The court held that
defendant had forfeited his right to appeal when he failed to provide notice prior to
entering his guilty plea. Killette I, 2018 WL 4701970, at *2 (citing State v. Tew, 326
N.C. 732, 735 (1990)). The Court of Appeals further held that it lacked authority
under Rule 21 of the North Carolina Rules of Appellate Procedure to issue the writ.
Killette I, 2018 WL 4701970, at *3 (citing State v. Harris, 243 N.C. App. 137, 141
(2015)). Defendant then petitioned this Court for discretionary review.
¶9 We remanded for reconsideration in light of State v. Ledbetter, 371 N.C. 192
(2018), and State v. Stubbs, 368 N.C. 40 (2015). In these decisions, the Court holds
that Rule 21 does not limit the Court of Appeals’ jurisdiction or bear on the decision
to issue a writ of certiorari. Ledbetter, 371 N.C. at 197 (“Rule 21 does not prevent the
Court of Appeals from issuing writs of certiorari or have any bearing upon the STATE V. KILLETTE
decision as to whether a writ of certiorari should be issued.”); Stubbs, 368 N.C. at 44
(“[W]hile Rule 21 might appear at first glance to limit the jurisdiction of the Court of
Appeals, the Rules cannot take away jurisdiction given to that court by the General
Assembly in accordance with the North Carolina Constitution.”). Accordingly, we
instructed the Court of Appeals to exercise its discretion in deciding whether to allow
or deny defendant’s petition.
¶ 10 On remand, the Court of Appeals again denied defendant’s petition. State v.
Killette (Killette II), 268 N.C. App. 254, 258 (2019). The Court of Appeals repeatedly
indicated that defendant’s failure to provide timely notice of his intent to appeal was
fatal to his petition. Id. at 256 (“[W]hen 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.’ ” (quoting State v. Pimental, 153 N.C. App. 69, 77, disc. review
denied, 356 N.C. 442 (2002))); see also id. at 258 (“Defendant’s petition does not assert
his ‘failure to take timely action.’ ”). The court held that it was required to deny the
petition under Tew, Pimental, and Harris. See id. at 257 (“Under well-settled
precedents, we disregard [State v.] Davis [237 N.C. App. 22 (2014)] and follow Tew,
Pimental, and State v. Harris as the earlier, binding precedents.”).
¶ 11 The court seemed to briefly acknowledge that it had jurisdiction over the
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IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-80
No. 379PA18-2
Filed 17 June 2022
STATE OF NORTH CAROLINA
v.
VAN BUREN KILLETTE, SR.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 268 N.C. App. 254 (2019), dismissing defendant’s appeal and
denying defendant’s petition for writ of certiorari after remand by this Court after
appeal from a judgment entered on 6 July 2017 by Judge Thomas H. Lock in Superior
Court, Johnston County. Heard in the Supreme Court on 11 May 2022.
Joshua H. Stein, Attorney General, by Nicholas R. Sanders, Assistant Attorney General, for the State-appellee.
Glenn Gerding, Appellate Defender, by Katy Dickinson-Schultz, Assistant Appellate Defender, for defendant-appellant.
HUDSON, Justice.
¶1 Defendant petitioned this Court for review of a unanimous decision of the
Court of Appeals. Upon review, we vacate and remand to the Court of Appeals.
I. Background
¶2 In August and September of 2014, the Johnston County Sheriff’s Office
received anonymous tips by phone that Van Buren Killette Sr. (defendant) was STATE V. KILLETTE
Opinion of the Court
manufacturing and selling methamphetamine in his home, as well as receiving stolen
property. After learning that defendant was on probation at the time, Detective C.J.
House and Detective Jay Creech of the Johnston County Sheriff’s Office contacted
Officer Ashley McRae, defendant’s probation officer. Officer McRae agreed to conduct
a search of defendant’s home.
¶3 On 30 September 2014, after arriving at defendant’s home, Officer McRae
asked defendant for permission to conduct a search. Defendant consented to the
search. The search uncovered stolen property and items frequently used to
manufacture methamphetamine. Defendant was subsequently indicted for breaking
or entering, larceny, manufacturing methamphetamine, possession of
methamphetamine precursors, possession of methamphetamine, maintaining a
dwelling for the purpose of keeping and selling a controlled substance, and conspiring
to manufacture methamphetamine.
¶4 On 18 June 2015, Department of Social Services Agent M. Williams and
detectives from the Johnston County Sheriff’s Office were investigating an unrelated
drug complaint. However, the subject of that separate investigation informed the
officers that she frequently provided defendant with pseudoephedrine in exchange for
methamphetamine. Because Agent Williams had reason to believe that children
might be present and at risk in defendant’s home, officers visited defendant’s home
that same night. Upon arriving, they observed several individuals fleeing defendant’s STATE V. KILLETTE
home and running towards the woods. Believing that they could smell
methamphetamine in defendant’s home, the officers conducted a “safety sweep” of the
home and quickly identified equipment and ingredients used to manufacture
methamphetamine. The next day, 19 June 2015, Detective Jason Guseman of the
Johnston County Sheriff’s Office applied for, received, and executed a search warrant.
Officers seized methamphetamine, precursor chemicals, manufacturing equipment,
and other evidence from defendant’s home. Defendant was charged with
manufacturing methamphetamine, possession of precursor chemicals, conspiracy to
manufacture methamphetamine, resisting a public officer, and trafficking in
methamphetamine.
¶5 On 29 March 2017, defendant filed two motions to suppress the evidence
obtained via the 2014 and the 2015 searches. The motion to suppress the 2014
evidence was heard on 3 May 2017. A written order denying the motion to suppress
was entered by Judge Thomas H. Lock on 7 July 2017. The motion to suppress the
2015 evidence was denied on 18 May 2017, and a written order to that effect was
entered by Judge Beecher Gray on 7 June 2017.
¶6 On 6 July 2017, defendant pled guilty to two counts of manufacturing
methamphetamine. The charges were consolidated and defendant received an active
sentence of 120 to 156 months. In exchange for defendant’s plea, the State dismissed
the remaining charges. STATE V. KILLETTE
¶7 On 10 July 2017, defendant filed a handwritten notice of appeal. On appeal,
defendant only challenged the denial of his motion to suppress evidence obtained
during the 2014 search. Because defendant failed to notify the State of his intent to
appeal prior to the entry of his plea agreement, defendant also petitioned for a writ
of certiorari in an attempt to secure review of the trial court’s order regarding the
evidence from the 2014 search.
¶8 On 2 October 2018, the Court of Appeals dismissed defendant’s appeal and
denied his petition for a writ of certiorari. State v. Killette (Killette I), No. 18-26, 2018
WL 4701970, at *3 (N.C. Ct. App. Oct. 2, 2018) (unpublished). The court held that
defendant had forfeited his right to appeal when he failed to provide notice prior to
entering his guilty plea. Killette I, 2018 WL 4701970, at *2 (citing State v. Tew, 326
N.C. 732, 735 (1990)). The Court of Appeals further held that it lacked authority
under Rule 21 of the North Carolina Rules of Appellate Procedure to issue the writ.
Killette I, 2018 WL 4701970, at *3 (citing State v. Harris, 243 N.C. App. 137, 141
(2015)). Defendant then petitioned this Court for discretionary review.
¶9 We remanded for reconsideration in light of State v. Ledbetter, 371 N.C. 192
(2018), and State v. Stubbs, 368 N.C. 40 (2015). In these decisions, the Court holds
that Rule 21 does not limit the Court of Appeals’ jurisdiction or bear on the decision
to issue a writ of certiorari. Ledbetter, 371 N.C. at 197 (“Rule 21 does not prevent the
Court of Appeals from issuing writs of certiorari or have any bearing upon the STATE V. KILLETTE
decision as to whether a writ of certiorari should be issued.”); Stubbs, 368 N.C. at 44
(“[W]hile Rule 21 might appear at first glance to limit the jurisdiction of the Court of
Appeals, the Rules cannot take away jurisdiction given to that court by the General
Assembly in accordance with the North Carolina Constitution.”). Accordingly, we
instructed the Court of Appeals to exercise its discretion in deciding whether to allow
or deny defendant’s petition.
¶ 10 On remand, the Court of Appeals again denied defendant’s petition. State v.
Killette (Killette II), 268 N.C. App. 254, 258 (2019). The Court of Appeals repeatedly
indicated that defendant’s failure to provide timely notice of his intent to appeal was
fatal to his petition. Id. at 256 (“[W]hen 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.’ ” (quoting State v. Pimental, 153 N.C. App. 69, 77, disc. review
denied, 356 N.C. 442 (2002))); see also id. at 258 (“Defendant’s petition does not assert
his ‘failure to take timely action.’ ”). The court held that it was required to deny the
petition under Tew, Pimental, and Harris. See id. at 257 (“Under well-settled
precedents, we disregard [State v.] Davis [237 N.C. App. 22 (2014)] and follow Tew,
Pimental, and State v. Harris as the earlier, binding precedents.”).
¶ 11 The court seemed to briefly acknowledge that it had jurisdiction over the
petition and that it could choose to exercise its discretion and issue a writ of certiorari. STATE V. KILLETTE
See id. at 258. However, it determined that the reasoning in Tew, Pimental, and
Harris was sound and required denying defendant’s petition. See id. (“Even if Tew,
Pimental and Harris were not binding on the issues here—and they are—within any
jurisdictional discretion to allow the petition, we would follow and apply their
reasoning.”).
¶ 12 Judge Inman wrote separately to express disapproval with the majority’s
holding that Tew, Pimental, and Harris “are binding on our exercise of discretion in
this case.” Id. at 258–59 (Inman, J., concurring). While Tew delt with a defendant’s
statutory right of appeal, it said nothing about a defendant’s right to petition for a
writ of certiorari. Id. at 259 (citing Ledbetter, 371 N.C. at 197). Judge Inman also
concluded that Pimental and Harris did not control in light of Ledbetter and Stubbs.
Id. at 259–60 (first citing Ledbetter, 371 N.C. at 197; and then citing State v. Thomsen,
369 N.C. 22, 27 (2016)). Judge Inman nevertheless agreed that defendant’s petition
should be denied. Id. at 260.
¶ 13 Defendant again petitioned this Court for discretionary review under N.C.G.S.
§ 7A-31. Defendant argued that the Court of Appeals improperly determined that
Pimental and Harris control and that this error perpetuates a misapprehension of
law regarding jurisdiction and authority to issue prerogative writs. On 3 February
2021 we allowed the petition for discretionary review. STATE V. KILLETTE
II. Analysis
¶ 14 This is the second time this Court has reviewed the Court of Appeals’ denial of
defendant’s petition for writ of certiorari and the second time that the Court of
Appeals has apparently acted believing that it had no choice but to deny the petition.
In its opinion, despite acknowledging our opinions to the contrary in Ledbetter and
Stubbs and Thomsen, the court said our prior decision in Tew and its own prior
decisions in Pimental and Harris are “binding,” requiring that the petition be denied.
Killette II, 268 N.C. App. at 257. To be sure, our decisions in Ledbetter, Stubbs, and
Thomsen should have made it clear that the Court of Appeals possessed jurisdiction
and authority to exercise its discretion in reviewing and deciding to allow or deny
defendant’s petition. Accordingly, we vacate the Court of Appeals decision and
remand, again, for that court to exercise its discretion in determining whether to
allow or deny defendant’s petition.
¶ 15 As we stated most recently in Ledbetter, “[r]egardless of whether Rule 21
contemplates review of defendant’s motion to dismiss, this Court made it clear in both
Stubbs and Thomsen that ‘if a valid statute gives the Court of Appeals jurisdiction to
issue a writ of certiorari, Rule 21 cannot take it away.’ ” 371 N.C. at 196 (quoting
Thomsen, 369 N.C. at 27). Also in Ledbetter, we described the very error repeated by
the Court of Appeals here:
By concluding it is procedurally barred from exercising its . . . jurisdiction in this appeal, the Court of STATE V. KILLETTE
Appeals has, as a practical matter, set its own limitations on its jurisdiction to issue writs of certiorari. . . . [I]n the absence of a procedural rule explicitly allowing review, such as here, the Court of Appeals should turn to the common law to aid in exercising its discretion rather than automatically denying the petition for writ of certiorari . . . .
Id. In its new brief to this Court, the State as appellee acknowledged as much: “This
Court has made clear in Stubbs, Thomsen, and Ledbetter that the Court of Appeals
‘maintains broad jurisdiction to issue writs of certiorari unless a more specific statute
revokes or limits that jurisdiction’ and that ‘Rule 21 does not prevent the Court of
Appeals from issuing writs of certiorari or have any bearing upon the decision as to
whether a writ of certiorari should be issued.’ ”
¶ 16 Consistent with this recent precedent, we hold that the Court of Appeals has
jurisdiction and authority to issue the writ of certiorari here, although it is not
compelled to do so, in the exercise of its discretion. Accordingly, we vacate the Court
of Appeals decision here and remand to that court to exercise its discretion to allow
or deny the petition for writ of certiorari on its merits. In addition, we overrule
Pimental, Harris, and any other Court of Appeals decisions that incorrectly hold or
imply that the Court of Appeals lacks jurisdiction or authority to issue a writ of
certiorari in similar circumstances, or which suggest that Rule 21 limits its
jurisdiction or authority to do so.
¶ 17 It is so ordered. STATE V. KILLETTE
VACATED AND REMANDED.
Justice BERGER did not participate in the consideration or decision of this
case.