{
  "id": 9189381,
  "name": "STATE OF NORTH CAROLINA v. CHERYL ANN MERRITT RUSH, Defendant",
  "name_abbreviation": "State v. Rush",
  "decision_date": "2003-07-01",
  "docket_number": "No. COA02-56",
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          "page": "678",
          "parenthetical": "\"Questioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is, we believe, an impermissible collateral attack.\""
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      "year": 1990,
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          "page": "161",
          "parenthetical": "discussing a defendant's attempt to withdraw a guilty plea after he hears and is dissatisfied with the sentence"
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      "cite": "326 N.C. 532",
      "category": "reporters:state",
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        {
          "page": "536",
          "parenthetical": "discussing a defendant's attempt to withdraw a guilty plea after he hears and is dissatisfied with the sentence"
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  "last_updated": "2023-07-14T17:16:33.883812+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Chief Judge EAGLES and Judge MARTIN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHERYL ANN MERRITT RUSH, Defendant"
    ],
    "opinions": [
      {
        "text": "GEER, Judge.\nOn this appeal, we are asked to consider whether the trial court erred in activating defendant\u2019s sentence after she violated her probation for the second time. Defendant makes two arguments: (1) the sentence that was activated violated defendant\u2019s plea agreement; and (2) the trial court lacked jurisdiction under N.C. Gen. Stat. \u00a7\u00a7 15A-1342 and -1344 (2001). We affirm.\nOn 27 January 1997, defendant pled guilty to two counts of assault with a deadly weapon on a law enforcement officer and one count of attempted common law robbery. Defendant received a suspended sentence and was placed on probation for 36 months.\nThe plea agreement between defendant and the State as described in the transcript of plea provided that one of the assault counts would be consolidated for judgment with the attempted robbery count and that defendant would receive two 24-month suspended sentences. Defendant and her attorney signed the transcript of plea. The judgment suspending sentence provided, however, for a minimum term of 24 months and a maximum term of 38 months on each count. Defendant signed both judgment forms.\nOn 7 September 1999, defendant appeared at her first revocation hearing as a result of having absconded to Indianapolis. Although the court found defendant in violation of her probation, the court extended her probation for another three years instead of activating her sentence.\nTwo years later, on 20 August 2001, defendant appeared for a second probation revocation hearing. Defendant admitted that she again violated her probation by failing to fulfill the monetary conditions of her probation and by absconding from the Salvation Army Women\u2019s Shelter. Judge Sanford Steelman activated defendant\u2019s suspended sentence. Defendant argued only that medical conditions had led to the probation violation and that the sentences should run concurrently given defendant\u2019s lack of a prior record.\nIn activating defendant\u2019s sentence, the court stated that defendant\u2019s original sentence was 24 to 38 months for each offense. Defendant\u2019s attorney did not correct the sentence description or object that the sentence of 24 to 38 months was inconsistent with the plea agreement. Defendant now requests that she be discharged or alternatively that she be returned to the trial court for re-sentencing in accordance with her plea agreement.\nUpon entry of a judgment inconsistent with her plea agreement, defendant had three options. First, defendant could have filed a motion to withdraw her guilty plea based on the judgment\u2019s being inconsistent with the plea agreement. N.C. Gen. Stat. \u00a7 15A-1024 (2001) allows a defendant to withdraw his or her plea if the sentence imposed is inconsistent with the plea agreement. See State v. Handy, 326 N.C. 532, 536, 391 S.E.2d 159, 161 (1990) (discussing a defendant\u2019s attempt to withdraw a guilty plea after he hears and is dissatisfied with the sentence).\nSecond, defendant could have appealed immediately if defendant\u2019s assignments of error fell within the scope of N.C. Gen. Stat. \u00a7 15A-1444 (2001) (specifying grounds for appeal from sentence following guilty plea). At the time of defendant\u2019s plea agreement hearing, the time for filing notice of appeal was 10 days after entry of the judgment. State v. Rannels, 333 N.C. 644, 665, 430 S.E.2d 254, 266 (1993).\nDefendant\u2019s final alternative was to file a petition for writ of cer-tiorari, as provided in N.C. Gen. Stat. \u00a7 15A-1444(e). A writ of cer-tiorari may also be issued \u201cin appropriate circumstances by either appellate court 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 . . . .\u201d N.C.R. App. P. 21(a)(1). Although our Rules of Appellate Procedure do not set forth a specific time period in which a defendant must file a petition for writ of certiorari, the \u201cpetition shall be filed without unreasonable delay . . . .\u201d N.C.R. App. P. 21(c). Here, defendant has not filed a petition for writ of certiorari and, in any event, we conclude that, under the circumstances of this case, a four-year delay in challenging a judgment constitutes \u201cunreasonable delay.\u201d\nBy failing to exercise any of her options, defendant waived her right to challenge the judgment. This appeal amounts to an impermissible collateral attack on the initial judgment. State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971) (\u201cQuestioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is, we believe, an impermissible collateral attack.\u201d). See also N.C. Gen. Stat. \u00a7 15A-1027 (2001) (\u201cNoncompliance with the procedures [governing guilty pleas in superior court] may not be a basis for review of a conviction after the appeal period for the conviction has expired.\u201d).\nWe hold that since defendant failed to file a motion to withdraw her guilty plea, failed to give oral or written notice of appeal within ten days after the judgment was entered, and failed to petition for writ of certiorari, she has waived any challenge to the 1997 judgment. Therefore, we need not consider the issue whether defendant assented to the 24 to 38 month term by signing the judgments suspending sentence.\nDefendant also contends that the trial court lacked jurisdiction to activate her sentence on 20 August 2001 because the record lacks any evidence that defendant had consented to the three-year extension of her probation two years earlier on 7 September 1999. We believe the record does indicate consent as required by N.C. Gen. Stat. \u00a7 15A-1342 (2001) (allowing three-year extension of period of probation beyond the original period with the consent of the defendant). Upon finding on 7 September 1999 that defendant had willfully violated the conditions of her probation, the trial court was entitled to revoke defendant\u2019s probation and activate her sentence. N.C. Gen. Stat. \u00a7 15A-1344(d) (2001). Instead of activating her sentence, the trial court chose to extend defendant\u2019s probationary period. The record does not contain any suggestion that defendant ever objected to this determination prior to this appeal, but rather reveals that she accepted both the terms and the benefits of the modified order. In any event, because defendant did not raise this issue in the revocation hearing, she has waived any right to appeal this issue. State v. Tozzi, 84 N.C. App. 517, 520, 353 S.E.2d 250, 252 (1987).\nAffirmed.\nChief Judge EAGLES and Judge MARTIN concur.",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General, Roy Cooper, by Special Deputy Attorney General, Lars F. Nance, for the State.",
      "Kay S. Murray, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHERYL ANN MERRITT RUSH, Defendant\nNo. COA02-56\n(Filed 1 July 2003)\n1. Probation and Parole\u2014 probation revocation \u2014 activated sentence\nThe trial court did not err in a probation revocation case by activating defendant\u2019s sentence after she violated her probation for a second time even though defendant contends the activated sentence violated her plea agreement and that the trial court lacked jurisdiction under N.C.G.S. \u00a7\u00a7 15A-1342 and -1344, because defendant waived any challenge when: (1) defendant failed to file a motion to withdraw her guilty plea; (2) defendant failed to give oral or written notice of appeal within ten days after the judgment was entered; and (3) defendant failed to petition for writ of certiorari.\n2. Probation and Parole\u2014 jurisdiction \u2014 three-year extension of probation \u2014 consent\nThe trial court did not lack jurisdiction to activate defendant\u2019s sentence on 20 August 2001 based on a probation violation even though defendant contends the record lacks any evidence that defendant had consented to the three-year extension of her probation two years earlier on 7 September 1999, because: (1) the record does indicate consent as required by N.C.G.S. \u00a7 15A-1342; and (2) defendant waived any right to appeal this issue since she did not raise it in the revocation hearing.\nAppeal by defendant from judgment entered 21 August 2001 by Judge Sanford L. Steelman in Union County Superior Court. Heard in the Court of Appeals 10 February 2003.\nAttorney General, Roy Cooper, by Special Deputy Attorney General, Lars F. Nance, for the State.\nKay S. Murray, for defendant-appellant."
  },
  "file_name": "0738-01",
  "first_page_order": 768,
  "last_page_order": 772
}
