scary pictureUpdate: In February 2021, the Supreme Court granted the defendant’s petition for discretion review. 

Since 2015, this blog has frequently discussed whether the text of Appellate Rule 21 places restrictions on the Court of Appeals’ authority to grant relief by writ of certiorari.   See here, here, here, here, herehere, and here.   The Supreme Court has also written frequently about whether the text of Appellate Rule 21 places restrictions on the Court of Appeals’ discretionary authority to grant relief by writ of certiorari. See Ledbetter (2018), Thomsen (2016), and Stubbs  (2015).  And the Court of Appeals has written frequently (and sometimes disagreed internally) about whether the text of Appellate Rule 21 places restrictions on the Court of Appeals’ discretionary authority to grant relief by writ of certiorari.

And before us again today is the uncertainty created by the tension between Appellate Rule 21’s text and the scope of the Court of Appeals statutory authority to grant certiorari review.  To paraphrase Poltergeist II, it’s baaaaack.”  (As we are only a few days post-Halloween, my subconscious mind is still dwelling on ghosts and goblins).

On Tuesday, the Court of Appeals issued a new opinion in Killette, once again focusing on the text of Appellate Rule 21, but with an In re Civil Penalty twist.

State v. Killette background

In an October 2018 unpublished opinion in Killette, the Court of Appeals dismissed the defendant’s appeal because he did not give prior notice of his intent to appeal the denial of his motion to suppress before entering a plea agreement–a jurisdictional requirement of N.C. Gen. Stat. § 15A-979.  The Killette court also declined to grant the defendant’s petition for writ of certiorari, citing a prior opinion (Harris) for the proposition that the Court of Appeals lacked authority to consider this issue by writ of certiorari. The defendant successfully petitioned for discretionary review in the Supreme Court of North Carolina.

While Killette was pending, however, the Supreme Court held in State v. Ledbetter that the text of Appellate “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.” For more on the Ledbetter opinion, see here.

After Ledbetter was decided, the Supreme Court remanded State v. Killette to the Court of Appeals for reconsideration.

Majority opinion

On remand, the Court of Appeals majority again declined to grant certiorari review based on the text of Appellate Rule 21 and In re Civil Penalty, noting

This Court has repeatedly held that when 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.”

. . .

Under Appellate Rule 21, a petition for a writ of certiorari may be allowed in this context only if the defendant’s right to prosecute the appeal “has been lost by failure to take timely action.” N.C. R. App. P. 21(a).

According to the majority, In re Civil Penalty prevented the Court from disregarding three prior opinions (Tew, Pimental, and Harris) on this issue because these opinions had not been overturned by the Supreme Court.  Moreover, the majority stated:

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.

As to the impact of Ledbetter and Stubbs, the majority stated as follows:

Other than recognizing this Court’s appellate jurisdiction to exercise our discretion on a petition for writ of certiorari, nothing else in the holdings of either State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015) or State v. Ledbetter, __ N.C. __, 814 S.E.2d 39 (2018) bears on the issues before us in this appeal.

Concurring opinion

Judge Inman concurring by separate opinion, disagreed with the majority’s assertion that the Court of Appeals discretion was limited by the text of Appellate Rule 21 or In re Civil Penalty:

Following Ledbetter, our exercise of discretion is not so limited, and we are required to exercise our discretion independent of Appellate Rule 21.

Nonetheless, Judge Inman concurred in the outcome by concluding that certiorari review was not warranted in this particular case—even when analyzed under her unbridled discretion.


  • A Supreme Court grant of discretionary review for the limited purpose of remanding to the Court of Appeals could be interpreted as an invitation/suggestion/veiled command to rethink the remanded case’s analysis and result.  Does the fact that Killette was remanded to the Court of Appeals following Ledbetter cut against the majority’s assertion regarding the limited impact of Stubbs and Ledbetter?
  • Does the Supreme Court have to expressly state that it is overruling Court of Appeals opinions to avoid an In re Civil Penalty issue?   In other words, are the Court of Appeals opinions in Tew, Pimental, and Harris–all of which interpreted the text of Appellate Rule 21 as limiting the discretion of the Court of Appeals in granting certiorari–still good law in light of Ledbetter?
  • Does the State v. Campbell saga shed some light on the Court of Appeals’ discretion to issue Appellate Rule 21 relief in individual cases—regardless of whether prior opinions have granted (or denied) certiorari relief? See here and here
  • Why does the confusion regarding the proper interpretation of Appellate Rule 21 and the scope of the Supreme Court’s certiorari authority seem like an issue that will never die?

Before Ledbetter was issued, the Supreme Court had before it a draft proposal to clarify the scope of certiorari review under Appellate Rule 21. After Ledbetter was issued, many assumed that the issue would die down even without an Appellate Rule 21 clarification.  Killette indicates that those rosy predictions may have been premature.  So once again, we are left asking: Is the easiest way to drive a stake into the heart of this ongoing Appellate Rule 21 saga for the Supreme Court to hang a few cloves of garlic on Appellate Rule 21?  Or would even that be insufficient to fix it?

As always, we are eager to know your thoughts (and will keep you updated).

–Beth Scherer