Big news out of the Court of Appeals for criminal practitioners. In State v. McLean, the Court of Appeals addressed a notice of appeal that was given orally the day after the trial ended and the defendant was sentenced. There was no written notice of appeal.
I know what you’re thinking, and Mr. McLean’s attorney did too: Petition for a writ of certiorari asking the Court to hear the appeal. But State v. McLean tells us that the time for giving oral notice of appeal under Appellate Rule 4 is not as rigid as we might have believed. Just as important, it provides guidance on when oral notices of appeals may be given.
Rule 4 of the North Carolina Rules of Appellate Procedure allows a defendant in a criminal case to either 1) give oral notice of appeal “at trial,” or 2) file a written notice of appeal within fourteen days following the entry of judgment. Unfortunately, the Appellate Rules do not explain what “at trial” means for oral notices of appeal. Nor (as Beth plans to explore in a subsequent post) is the interpretation of that phrase self-evident. And when doubt exist as to whether an appeal was properly taken, petitions for writ of certiorari are routinely filed by appellate attorneys—including by Mr. McLean’s counsel.
Acknowledging the large number of cases in which a petition for writ of certiorari is filed when oral notice of appeal is given, the Court of Appeals stepped in to interpret “what is considered a notice of appeal at trial.” McLean examined several cases about the ability of trial courts to amend or alter judgments—including at least two cases where the State successfully argued that a trial court’s authority to modify a sentence doesn’t end on the day of sentencing. See State v. Sammartino, 120 N.C. App. 597, 463 S.E.2d 307 (1995); State v. Edmonds, 19 N.C. App. 105, 107, 198 S.E.2d 27 (1973). These cases define “the span of trial” and “a session of the court.” A “session,” the Court explained, is “the time during which a court sits for business and refers to a typical one-week assignment of court.” Thus, all judgments remain in fieri (pending) until that term of court closes.
With that understanding in mind, the Court of Appeals concluded that if a judgment can be modified, amended, or set aside during the same session of court, then the “time of trial” similarly extends to the end of the respective session, or when a court adjourns sine die.
As a result, Mr. McLean’s oral notice of appeal—given the next day, before the same judge, and during the same session of court prior to the court adjourning sine die—was properly given “at trial” under Rule 4. Because Mr. McLean’s petition for a writ of certiorari was unnecessary, it was dismissed as moot.
This is an important case for criminal practitioners. It should cut down on the number of certiorari petitions filed in the Court of Appeals. Oral notice of appeal is timely if given during the same session of court and before the court closes sine die.
Pay close attention to when a court session closes—and be sure to include the transcript page or pages showing that the oral notice of appeal was given during the same session.
I’d love to know your thoughts on this case. How would you interpret “at trial” under Appellate Rule 4? Because life and liberty are at stake, everyone likely agrees that procedural rules should be transparent and relatively easy for trial counsel (or pro se litigants) to follow. This opinion indicates that the Court of Appeals is being deluged with a large number of “just-in-case” certiorari petitions. What do you make of the large number of conditional certiorari petitions in criminal appeals? If North Carolina’s procedures for appealing are difficult to follow, should (and how) can that be fixed to decrease the number of certiorari petitions and reduce the administrative burden on the courts?