{ "id": 8187841, "name": "STATE OF NORTH CAROLINA v. OTRELL DESHONE EVANS", "name_abbreviation": "State v. Evans", "decision_date": "2007-07-17", "docket_number": "No. COA06-1283", "first_page": "736", "last_page": "741", "citations": [ { "type": "official", "cite": "184 N.C. App. 736" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "30 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "321", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "224 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603854 ], "year": 1944, "pin_cites": [ { "page": "414", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0412-01" ] }, { "cite": "470 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "546", "parenthetical": "holding that this Court lacked jurisdiction to review the defendant's appeal where none of the exceptions in N.C.G.S. \u00a7 15A-1444 applied and the defendant did not file a petition for writ of certiorari" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918359 ], "year": 1996, "pin_cites": [ { "page": "504-05", "parenthetical": "holding that this Court lacked jurisdiction to review the defendant's appeal where none of the exceptions in N.C.G.S. \u00a7 15A-1444 applied and the defendant did not file a petition for writ of certiorari" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0504-01" ] }, { "cite": "605 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412436 ], "year": 2004, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0582-01" ] }, { "cite": "573 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511334, 1511565, 1511597, 1511471, 1511486 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0442-01", "/nc/356/0442-02", "/nc/356/0442-05", "/nc/356/0442-04", "/nc/356/0442-03" ] }, { "cite": "568 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248676 ], "year": 2002, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0069-01" ] }, { "cite": "588 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "546", "parenthetical": "quoting State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002)" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959035 ], "year": 2003, "pin_cites": [ { "page": "528", "parenthetical": "quoting State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0527-01" ] }, { "cite": "557 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "148 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364683 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc-app/148/0191-01" ] } ], "analysis": { "cardinality": 485, "char_count": 11059, "ocr_confidence": 0.751, "pagerank": { "raw": 6.392147806818433e-08, "percentile": 0.3960715470284175 }, "sha256": "f3a3cc8e0ed048ef032f0e7ddfc7dff209e15445a3958ec8d58eea9df224294f", "simhash": "1:fb7fe3ef766bccb2", "word_count": 1834 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JACKSON concurs.", "Judge LEVINSON dissents with a separate opinion.", "Judge Levinson dissented in this opinion prior to 7 July 2007." ], "parties": [ "STATE OF NORTH CAROLINA v. OTRELL DESHONE EVANS" ], "opinions": [ { "text": "McGEE, Judge.\nOtrell Deshone Evans (Defendant) was charged with first-degree murder, assault with a deadly weapon with intent to kill, and possession of a handgun by a minor. Defendant was fifteen years old at the time. The District Court held a probable cause hearing on 22 March 2005 and found probable cause that Defendant committed the offenses with which he was charged, one of which was a Class A felony.\nDefendant filed a \u201cmotion against juvenile being transferred and tried as an adult\u201d on 22 March 2005. Defendant argued that N.C. Gen. Stat. \u00a7 7B-2200 was unconstitutional. N.C. Gen. Stat. \u00a7 7B-2200 provides:\nAfter notice, hearing, and a finding of probable cause the court may, upon motion of the prosecutor or the juvenile\u2019s attorney or upon its own motion, transfer jurisdiction over a juvenile to superior court if the juvenile was 13 years of age or older at the time the juvenile allegedly committed an offense that would be a felony if committed by an adult. If the alleged felony constitutes a Class A felony and the court finds probable cause, the court shall transfer the case to the superior court for trial as in the case of adults.\nN.C. Gen. Stat. \u00a7 7B-2200 (2005) (emphasis added). At the conclusion of the 22 March 2005 hearing, the District Court stated that it would \u201cfind that [it was] mandated by [N.C. Gen. Stat. \u00a7] 7B-2200 to transfer this case to Superior Court for trial as an adult.\u201d The District Court then stated that all of the charges against Defendant would \u201cbe transferred to Superior Court for trial by this order today.\u201d In open court, Defendant\u2019s counsel appealed this decision to the Superior Court.\nSubsequently, on 13 July 2005, Defendant was indicted in Superior Court on charges of first-degree murder and assault with a deadly weapon with intent to kill. Defendant filed a motion and brief on 6 October 2005 requesting that he not be tried as an adult in Superior Court. Defendant specifically incorporated in this motion and brief his prior motion and brief filed in District Court on 22 March 2005, which had also requested that he not be transferred and tried as an adult. The Superior Court held a hearing on Defendant\u2019s motion and stated: \u201c[I]n compliance with the law the Court hereby affirms the District Court finding and the Court ORDERS this case continue in Superior Court for the crime of first-degree murder as well as the other charge with it.\u201d Defendant\u2019s counsel excepted and objected to this decision. However, the record on appeal does not contain any written order denying Defendant\u2019s motion.\nDefendant pleaded guilty on 22 March 2006 to second-degree murder and assault with a deadly weapon with intent to kill. Defendant attempted to preserve the right to appeal issues related to his transfer from District Court to Superior Court for trial as an adult. At the conclusion of the plea hearing, the Superior Court delayed sentencing.\nThe Superior Court held a sentencing hearing on 25 May 2006. In open court, the Superior Court sentenced Defendant to a mitigated term of 112 months to 144 months in prison, and Defendant gave oral notice of appeal.\nDefendant argues that the automatic transfer of his case to Superior Court upon a finding of probable cause violated his federal and state constitutional rights to due process and equal protection. However, we do not reach the merits of Defendant\u2019s appeal. \u201c \u2018In North Carolina, a defendant\u2019s right to appeal in a criminal proceeding is purely a creation of state statute.\u2019 \u201d State v. Jamerson, 161 N.C. App. 527, 528, 588 S.E.2d 545, 546 (2003) (quoting State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002)). Pursuant to N.C. Gen. Stat. \u00a7 15A-1444(e) (2005):\nExcept as provided in subsections (al) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.\nOur Court has recognized that pursuant to N.C. Gen. Stat. \u00a7 15A-1444 (2005),\na defendant who has pled guilty has only the right to appeal the following issues: (1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant\u2019s prior record level under N.C. Gen. Stat. \u00a7 15A-1340.14 or the defendant\u2019s prior conviction level under N.C. Gen. Stat. \u00a7 15A-1340.21; (3) whether the sentence constitutes a type of sentence not authorized by N.C. Gen. Stat. \u00a7 15A-1340.17 or \u00a7 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant\u2019s motion to suppress; and (5) whether the trial court improperly denied the defendant\u2019s motion to withdraw his guilty plea.\nState v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004). In the present case, Defendant\u2019s appeal following his guilty plea does not fall within any of the categories of appeal permitted under the statute. Moreover, Defendant has not petitioned for a writ of certio-rari. Therefore, we lack jurisdiction to consider Defendant\u2019s appeal and we dismiss his appeal. See State v. Waters, 122 N.C. App. 504, 504-05, 470 S.E.2d 545, 546 (1996) (holding that this Court lacked jurisdiction to review the defendant\u2019s appeal where none of the exceptions in N.C.G.S. \u00a7 15A-1444 applied and the defendant did not file a petition for writ of certiorari).\nThe dissent relies upon N.C. Gen. Stat. \u00a7 7B-2603(d) to argue that Defendant has a right to appeal the transfer decision after his plea of guilty in Superior Court. N.C. Gen. Stat. \u00a7 7B-2603(d) (2005) provides: \u201cThe superior court order [upholding the transfer decision] shall be an interlocutory order, and the issue of transfer may be appealed to the Court of Appeals only after the juvenile has been convicted in superior court.\u201d The dissent argues that this section does not limit the term \u201cconvicted\u201d to circumstances where a defendant has been convicted by a jury and, therefore, a defendant has a right to appeal a transfer decision even after a plea of guilty. We disagree.\nIt is true that the term \u201cconviction\u201d includes a plea of guilty-accepted and entered by a court. See State v. Robinson, 224 N.C. 412, 414, 30 S.E.2d 320, 321 (1944) (citation omitted) (recognizing that \u201c \u2018[a] plea of guilty, accepted and entered by the court, is a conviction or the equivalent of a conviction of the highest order, the effect of which is to authorize the imposition of the sentence prescribed by law on a verdict of guilty of the crime sufficiently charged in the indictment or information.\u2019 \u201d).\nHowever, we do not interpret N.C.G.S. \u00a7 7B-2603(d) as establishing an exception to N.C.G.S. \u00a7 15A-1444(e).\u2018 Although N.C.G.S. \u00a7 7B-2603(d) uses the term \u201cconvicted,\u201d it does not specifically address a situation where a defendant has pleaded guilty. In contrast, one of the stated exceptions listed under N.C.G.S. \u00a7 15A-1444(e), which deals with the right to appeal decisions regarding motions to suppress, does specifically address this situation. See N.C. Gen. Stat. \u00a7 15A-979 (2005). N.C. Gen. Stat. \u00a7 15A-979(b) specifically provides: \u201cAn order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.\u201d N.C. Gen. Stat. \u00a7 15A-979(b) (2005) (emphasis added). We find it significant that the General Assembly included the clarification that the term \u201cconviction\u201d used in this section includes a judgment entered upon a plea of guilty. By contrast, the General Assembly did not use this phraseology in N.C.G.S. \u00a7 7B-2603(d). We hold that the applicable statute determining Defendant\u2019s right to appeal is N.C.G.S. \u00a7 15A-1444. Under N.C.G.S. \u00a7 15A-1444, Defendant has no right to appeal a transfer decision upon a plea of guilty. Therefore, we hold that Defendant does not have the right to appeal his transfer decision after pleading guilty in Superior Court. It is the role of the General Assembly to determine statutory rights of criminal defendants to appeal a transfer decision after pleading guilty in Superior Court. Without an amendment to N.C.G.S. \u00a7 15A-1444 providing for such an appeal, we are without jurisdiction to hear the case presently before us and must dismiss this appeal.\nDismissed.\nJudge JACKSON concurs.\nJudge LEVINSON dissents with a separate opinion.\nJudge Levinson dissented in this opinion prior to 7 July 2007.", "type": "majority", "author": "McGEE, Judge." }, { "text": "LEVINSON, Judge\ndissenting'.\nConsistent with the specific, express allowance found in N.C. Gen. Stat. \u00a7 7B-2603(d) (2005), the defendant has a right to appeal the transfer decision. This is, in fact, the necessary application of this Court\u2019s decision in State v. Brooks, 148 N.C. App. 191, 557 S.E.2d 195 (2001).\nAs a part of the transfer order by the district court, the trial court necessarily rejected defendant\u2019s constitutional challenge to the transfer statute. Defendant has taken appeal from a final judgment \u2014 the one as regards his conviction for second degree murder \u2014 and, as a part of his appeal, he may challenge the transfer order from the district court. Section 7B-2603(d) does not limit the term \u201cconvicted\u201d to circumstances where defendant was convicted by jury; it therefore includes circumstances, like these, where defendant was \u201cconvicted\u201d by virtue of his guilty plea in superior court.\nI would reach the merits of this appeal and conclude that the requirement that juveniles be transferred to superior court where there is probable cause to believe they committed a Class A felony offense does not run afoul of the Constitution.", "type": "dissent", "author": "LEVINSON, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.", "Charlotte Gail Blake for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. OTRELL DESHONE EVANS\nNo. COA06-1283\n(Filed 17 July 2007)\nAppeal and Error\u2014 appealability \u2014 transfer of juvenile\u2019s case to superior court \u2014 guilty plea \u2014 absence of jurisdiction\nAlthough defendant contends the trial court erred in a second-degree murder and assault with a deadly weapon with intent to kill case by automatically transferring defendant\u2019s case from district court to superior court for trial as an adult, the merits of this issue are not reached based on lack of jurisdiction, because: (1) defendant\u2019s appeal following his guilty plea does not fall within any of the categories of appeal permitted under N.C.G.S. \u00a7 15A-1444; (2) defendant has not petitioned for a writ of certio-rari; and (3) N.C.G.S. \u00a7 7B-2603(d) does not establish an exception to N.C.G.S. \u00a7 15A-1444(e).\nJudge LEVINSON dissenting.\nAppeal by Defendant from judgment dated 6 October 2005 and oral order rendered 6 October 2005 by Judge Paul L. Jones in Superior Court, Lenoir County. Heard in the Court of Appeals 25 April 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.\nCharlotte Gail Blake for Defendant-Appellant." }, "file_name": "0736-01", "first_page_order": 768, "last_page_order": 773 }