(1) You (and all trial practicioners) need to carefully examine 15A-1444 (a1)

and (a2), which narrowly restrict the issues which may be raised on appeal

following a guilty plea. W/ regard to your issue concerning lack of notice of

aggs., you can try to argue that your issue fits within 15A-1444(a2)(3), but

you should expect the State to move to dismiss your appeal as soon as an AG

gets assigned. When you look at the language of (a2) you will immediately

understand why Paul says it applies only to structured sentencing cases.

(2) The denial of your Ferguson motion is not reviewable on appeal at all.

The guilty plea waives any right to review on that issue. When your client

pled, did you expressly reserve the right to appeal the denial of the Ferguson

motion? If so, your client might get relief because he will not be afforded

the benefit of his bargain, but he absolutely will not get appellate review of

the denial of his motion.

(3) Although 15A-1444(e) purports to allow cert. review in guilty plea cases

on issues which are not appealable of right, the Court of Appeals has ruled

that its authority to grant cert. is strictly limited by Rule 21 of the Rules

of Appellate Procedure, which does not allow cert. review of non-appealable

issues following guilty pleas. This is a hot topic of appellate litigation.

I currently have 2 PDRs pending in the NCSCt addressing different aspects of

this problem, but I am not optimistic. Any trial court practicioners should

assume that the only way to get appellate review when meritorious motions to

dismiss are denied pretrial is to go to trial.

(4) If your client's guilty plea was based on an understanding that he could

still appeal the denial of his Ferguson motion, he will likely be entitled to

relief by way of MAR. Unless you attempted on record to expressly reserve the

right to appeal the issue, you likely cannot represent him both because you

will be a necessary witness to the advice you gave him and his reliance on it,

and because the technical grounds for relief would be your IAC in giving him

that advice. If you did expressly attempt to reserve the right to appeal the

Ferguson issue, you likely can handle the MAR as the technical grounds for

relief will be straightforward Boykin v. Alabama issues -- an unknowing,

involuntary plea which was wrongfully induced by an illusory and unenforceable

plea agreement which was erroneously accepted by the trial court in violation

of the client's constitutional rights.

(5) It strikes me that the Academy should do some CLE on what trial

practitioners need to know about appellate procedure, as these types of issues

seem to be arising which increased frequency.


Daniel K. Shatz

Assistant Appellate Defender

123 W. Main St., Suite 500

Durham, North Carolina 27701

(919) 560-3334 ext. 149 Show quoted text - As a follow-up to point 3 of my last post, I need to add that if you read

Rule 21, you will see that it authorizes cert "when no right of appeal from an

interlocutory order exists[.]"  Personally, I believe that pretrial orders

such as David's Ferguson motion, when followed by guilty pleas, should fit

within this definition.  However, the COA's holdings have been to the

contrary, even though they have never explained WHY these types of orders do

not fit within this definition.  So if you read Rule 21 and are confused over

why David's client can't cert his Ferguson motion denial, you are not alone.

But you need to simply take it as a given that the COA does not believe it has

jurisdiction to grant cert in this situation.