Sometimes you fall headlong into a chorus you thought you knew by heart—only to discover the bridge is where all the action is. For appellate practitioners, that action seems to be happening more and more in orders issued by the North Carolina Court of Appeals. The latest big order highlights how trial attorneys in criminal cases giving oral notices of appeal before sentencing can create problems under the Court of Appeals’ discretionary certiorari power. The result, to borrow from Avril Lavigne, is ♫ Complicated.
1. ♫“Why’d You Have to Go and Make [Certiorari] So Complicated?”
On October 23rd, the Court of Appeals in State v. Ingram issued an order dismissing an appeal. That order lays out a disagreement within the Court of Appeals regarding its power to issue certiorari. While we do not know (yet) who wrote and joined the majority opinion, Judge Stroud penned a dissenting opinion. Both opinions are worth an independent read. One theme of the dissent is that these types of disagreements should not “come over unannounced” to everyone but parties to the case, so consider this an announcement!
The Ingram majority dismissed an appeal because trial counsel gave oral notice of appeal before the judgment was entered. Under Court of Appeals case law, an “oral notice of appeal given before entry of the final judgment violates [Appellate] Rule 4 and does not give th[e] Court jurisdiction to hear defendant’s direct appeal.” Bound by the Court of Appeals prior statement of the law, defense counsel filed a petition for writ of certiorari. [Hint: Jump ahead to section 3 below if you want my take on whether these premature oral notices of appeal cases are correct].
The Ingram majority applied the Supreme Court’s two-step framework from Cryan v. National Council of Young Men’s Christian Associations of United States, 384 N.C. 569, 887 S.E.2d 848 (2023), emphasizing that certiorari is discretionary and requires both a showing that error likely occurred below and “extraordinary circumstances” justifying review. Although the petition identified several potential trial errors, the Ingram majority concluded it failed at the second step by not demonstrating extraordinary circumstances such as substantial harm, waste of judicial resources, or broad issues of justice and liberty. Granting certiorari without that showing, the panel reasoned, would be legal error and thus an abuse of discretion.
The Ingram dissent faulted the majority for its reading of Cryan and for denying certiorari by order and not an opinion. In the dissent’s view, North Carolina’s longstanding practice in criminal cases is to grant certiorari where a defendant’s intent to appeal is clear, the State is not prejudiced, and the notice defect occurred through no fault of the defendant—especially when the issues on appeal appear potentially meritorious. Cryan, the dissent argued, reaffirmed that the Court of Appeals has discretion when considering petitions, rather than imposing a rigid “extraordinary circumstances” barrier in this context. The dissent would have granted certiorari and resolved the case on the merits in an opinion, rather than order.
The dissent notes what may be a growing trend in the Court of Appeals: the use of orders, as opposed to opinions (published and unpublished), to dispose of fully briefed appeals. Unlike opinions, orders are not “available on any searchable database—they can only be located on our electronic filing website if one already knows the specific case name or number, or by manually searching through records at the Court of Appeals Clerk’s Office.” See Ingram. The dissent warned that the lack of written opinions undermines transparency, deprives trial courts and practitioners of guidance, and undermines public confidence in the judicial process.
The dissent also raised an interesting question under Appellate Rule 30(e): If a Court of Appeals order has all the characteristics of an opinion, do the Supreme Court’s rules suggest that these types of orders should be posted to the opinion page and reported to services like Westlaw and Lexis?
The dissent includes a practical critique of using orders to decide important issues. If appellate practitioners do not have a way to ascertain the appellate courts’ evolving interpretations of the law, how can they be faulted for not complying with them? For example, how do we warn readers of this blog about new interpretations of the law when realistically these orders fly under the radar unless someone shares them with us? (This is less of an issue with North Carolina Supreme Court orders as that court publishes all its orders and opinions.).
If anyone has insight on why the Court of Appeals has not traditionally reported its orders to services like Westlaw and Lexis, I would love to know. (Our prior springs of historical information on the Court of Appeals, like John Connell and Frank Dail, are sorely missed).
But in any event, wouldn’t compliance be encouraged by disseminating these substantive orders to the criminal and appellate bar? Plus, the dangers of not publishing orders like Ingram seem particularly acute when prior published opinions have reached the opposite result.
2. ♫“You’re Watchin’ Your Back Like You Can’t Relax:” Gardner and Ingram’s Competing Readings of the Court of Appeals’ Certiorari Authority
The Supreme Court has frequently explained that one Court of Appeals panel cannot overrule an earlier panel. But applying that principle to the Court of Appeals’ June 2025 opinion in State v. Gardner, — N.C. App. –, 917 S.E.2d 494 (2025), might have lulled the criminal appellate bar into a false sense of security.
In Gardner, the Court of Appeals addressed the same scenario: a criminal defendant’s right to appellate review was supposedly lost due to a premature oral notice under Appellate Rule 4. Appellate counsel filed a petition for the writ of certiorari under Appellate Rule 21.
The Gardner majority treated the writ as a flexible, equitable safety valve—emphasizing that the recent Supreme Court opinion in Cryan reaffirmed, rather than narrowed, the intermediate court’s sound discretion to issue certiorari in “appropriate circumstances.” In the majority’s view, Cryan “simply reaffirm[ed] our discretion to allow petitions for writ of certiorari in appropriate cases—the scope of which is guided by our precedent and our understanding of the equitable concerns in each case.” The Gardner majority also underscored the appellate courts’ institutional preference to resolve cases on the merits in criminal cases where the defendant’s intent to appeal is evident and any defect is through no fault of the defendant.
The dissent, written by Judge Freeman, aligned with the majority views in State v. Ingram. The dissent read Cryan to impose a more structured, “per se” gatekeeping function that would require criminal defendants to show both likely error and “extraordinary circumstances” before the writ could issue. The dissent focused on the risk of draining Appellate Rule 4 of consequence by allowing routine salvaging of defective appeals via certiorari. The Ingram dissent favored clear lines over case-by-case equity, insisting that the Supreme Court’s two-part framing in Cryan is mandatory and that appellate courts abuse their discretion if they grant certiorari without requiring the defendant to engage in a robust “extraordinary circumstances” analysis.
I read cases like Gardner to say that
- where the record shows that the defendant’s intent to appeal was clear to the trial court and prosecuting attorney,
- the premature appeal was attributable to defendant’s trial counsel (and usually court-appointed trial counsel at that),
- the State was not misled or prejudiced by the premature appeal, and
- the interest at stake is physical liberty (one of the most cherished rights under the state and federal constitutions),
then this class of premature notices of appeal presumptively satisfies the “extraordinary circumstances” inquiry.
In contrast, Ingram seems to be saying that such a showing is insufficient to justify certiorari review. In other words, the Gardner majority leans into its discretion based on the appellate court’s longstanding criminal-appeal practice; while the Gardner dissent tightens the rope, treating Cryan as a uniform, cross-context constraint on when certiorari may address “jurisdictional” problems created by defective notices of appeal.
3. Do Oral Notices of Appeal ♫“Have to Be So Complicated“♫?: Render-Versus-Entry under Appellate Rule 4, Oates’ Timing Window, and Appellate Rule 1.
Opinions/orders like Ingram and Gardner sit at the intersection of several unaddressed appellate doctrines which make me wonder: Is the Court of Appeals’ current route for addressing premature notices of appeal more complicated than it needs to be?
First, what’s the source of this “premature oral notice of appeal” caselaw? As best as I can tell, State v. Robinson, 236 N.C. App. 446, 448 (2014) is the first published opinion classifying an oral notice of appeal given after verdict, but prior to sentencing, as premature. Robinson cited only two other authorities when making this statement:
- N.C. Gen. Stat. § 7A-27. While section 7A-27 lays out the types of orders that may be appealed and to which court the right to appellate review lies, that statute doesn’t address when or how notice of appeal should be given.
- N.C. Gen. Stat. § 15A-1444(a). That statute provides that “A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.” But like section 7A-27, section 15A-1444(a) doesn’t dictate when or how notice of appeal must be given—only that a right to appellate review exists once a final judgment is entered in a criminal case.
Rather, the relevant statutory provision is N.C. Gen. Stat. § 15A-1448,. That statute states that that the requirements relating to the time, manner, and effect of giving notice of appeal will be located in the “rules of appellate procedure.” See also N.C. Gen. Stat.§ 15A-1444(d) (directing that the procedures for noticing an appeal will be governed by Chapter 15A, Chapter 7A, and “the rules of appellate division”). In other words, because the criminal and appellate statutes no longer establish procedures for how and when notice of appeal should be given, Appellate Rule 4 is the sole source for how and when notice of appeal must be given in a criminal cases. And Appellate Rule 4(a) provides that criminal defendants may give notice of appeal in one of two ways: (1) by giving oral notice of “at trial” or (2) by filing a written notice of appeal “within fourteen days after entry of the judgment.”
But rather than conducting an analysis of what “at trial” means under Appellate Rule 4(a)(1), Robinson and subsequent opinions simply assumed that oral notice of appeal must be given “following entry of the trial court’s final judgment.” See State v. Robinson, 236 N.C. App. 446, 448, (2014). Because the appellate panels in that line of cases granted certiorari to address those appeals on the merits, Robinson’s statement that an oral notice of appeal was premature didn’t ultimately harm anyone.
But now that Ingram has denied certiorari review based on a premature oral notice of appeal, the proper interpretation of Appellate Rule 4’s text has become critical.
Appellate Rule 4 states that a “judgment or order…rendered in a criminal action may” be appealed by “giving oral notice of appeal at trial.” N.C. R. App. P. 4(a)(1) (emphasis added). Notably, nothing within Appellate Rule 4(a)(1) provides that oral notices of appeal must be given “after entry of the judgment or order.” Instead, the “after entry of judgment” language is located only within Appellate Rule 4(a)(2)—which only applies to written notices of appeal.
Second, in State v. Oates, 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012), the North Carolina Supreme Court explained that in criminal cases, orders and judgments are treated identically. An order is rendered when the trial judge decides an issue and advises the necessary individuals in open court—with the window for noticing appeal opening upon oral rendition of that ruling and remaining open until 14 days after entry of the written judgment or order. Based on that interpretation, the Oates court held that what might be classified under a strict reading of Appellate Rule 4 as a premature written notice of appeal was actually a timely filed notice of appeal under Oates’ more flexible reading of Appellate Rule 4. Does Oates’s render-versus-entry framework align with these premature oral notices of appeal rulings from the Court of Appeals?
Third, might the Supreme Court’s decision in State v. Oates to interpret Appellate Rule 4 flexibly have been guided by Appellate Rule 1? Appellate Rule 1 lays out a foundational principle when interpreting the appellate rules:
“Rules Do Not Affect Jurisdiction: These rules shall not be construed to extend or limit the jurisdiction of the courts of the appellate division as that is established by law.”
N.C. R. App. P. 1(c). Given this text, how are requirements for noticing an appeal found only in an appellate rule being given jurisdictional labels by cases like Robinson, Ingram, and Gardner?
If you are curious, Matt and I have an entire theory under Appellate Rule 27(c) as to why Appellate Rules 3 and 4’s timing (as opposed to form) requirements are constructive jurisdictional requirements, not true jurisdictional requirements. See North Carolina Appellate Practice and Procedure at § 28.02[3][b] [True and Constructive Jurisdictional Requirements]. But that quasi-jurisdictional theory only applies to efforts by a party or a court to “extend” the time for noticing an appeal under Appellate Rule 4. See an earlier, but less developed, version of this theory here: When Is a Deadline or Other Requirement for Filing a Notice of Appeal Jurisdictional? (State Edition) | North Carolina Appellate Practice Blog.
Almost a decade ago, SCOTUS took a step away from the dangers associated with overusing jurisdictional labels. Hamer v. Neighborhood Housing Servs. of Chicago, — U.S. — (2017) (acknowledging Supreme Court’s history of “mischaracteriz[ing] claim-processing rules or elements of a cause of action as jurisdictional limitations” (emphasis added)). Should the text of Appellate Rule 1 invite renewed scrutiny of state court cases that instinctively slap jurisdictional labels on notice of appeal requirements found only in the appellate rules? In other words, even assuming these notices of appeal are too early under Appellate Rule 4, should such an error be labeled as jurisdictional? Or should the error be treated as a violation of a non-jurisdictional, claims-processing rule susceptible to doctrines like the functional equivalent and substantial compliance doctrines? See North Carolina Appellate Practice and Procedure, § 28.02[3][c][ii] [Formal Notice Requirements for Invoking the Appellate Court’s Jurisdiction]. Taking premature notices of appeal out of the jurisdictional category would be a sensible way to stop throwing every notice of appeal problem into a jurisdictional abyss that only “extraordinary circumstances” can bridge.
Fourth, civil appellate practice saves most premature written notices of appeal under the rendering-versus-entry distinction. For example, in Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997) a notice lodged after the court rendered its decision but before entry was not fatal. Although criminal cases lack a directly analogous “entry” statute, does the render/entry text of Appellate Rule 4—particularly when combined with the Oates framework—support greater tolerance for criminal oral notices of appeal when the appellant’s intent to appeal is plain and no party was misled?
[ETA 11/6/2025: Thanks to Troy Shelton for reminding me about the Mannise/Penninga line of cases that take a different approach from Abel to premature oral notices of appeals. See Treatise § 28.09[2][c][vii] [Premature Notices of Appeal]. While Mannise and Penninga don’t reference Abels v. Renfro, their reasoning is based on a 1994 amendment to Civil Rule 58. But as noted above and below, these changes were confined to civil judgments–with the General Assembly and Supreme Court appearing to leave the 1970s to 1990s process for noticing appeals in criminal cases untouched].
Finally, when the Supreme Court in 1989 eliminated oral notice of appeal in civil cases, it adopted a corresponding change to Appellate Rule 4 that eliminated oral notices of appeal in criminal cases too. But before the ink could dry on amended Appellate Rule 4, the Supreme Court rescinded the changes and decided to keep oral notices of appeal, at least for criminal cases. Compare N.C. R. App. P. 4 (1989), reprinted at, 324 N.C. 585., 585 with 368 N.C. 1068, 1070 and 92 N.C. App. 761. I have been told that the criminal bar convinced the Supreme Court that eliminating oral notices of appeal was going to create chaos because giving oral notice of appeal at trial was so simple and flexible.
But if the criminal bar is now experiencing widespread difficulty complying with Appellate Rule 4, should the Supreme Court look at this issue again? Perhaps oral notices of appeal should be eliminated in favor of a simpler (maybe a form-based) written notice of appeal procedure? Or perhaps the Supreme Court could amend Appellate Rule 4 to provide that if the trial court signs an appellate entry stating that oral notice of appeal was given in open court, such a signed order will satisfy Appellate Rule 4.
I would love to hear everyone’s thoughts on if any of these fixes might work. Of course, if the Supreme Court decides that the Court of Appeals’ premature oral notices of appeal cases have been wrongly decided, then perhaps Appellate Rule 4 needs no tinkering.
For criminal appellate attorneys, perhaps ♫“life’s like this”: irrespective of whether rules actually “affect jurisdiction” in the abstract, in practice they still can deeply impact criminal defendants seeking to exercise their statutory right to appellate review of their convictions. While oral notices might seem to be fine when given “at trial,” the appellate courts have disagreed. Because there’s no way to know whether a case’s assigned appellate panel will weave certiorari’s safety net wide or knot it up tightly, appellate practitioners must continue to comply with the most restrictive interpretation, while still preserving the deeper questions presented under Appellate Rule 4, Appellate Rule 1, and Oates.
This ♫Complicated blog post has several questions that I’d love feedback on. Share your thoughts in in the comments to this LinkedIn post.
–Beth Scherer