Attorneys practicing in criminal superior court are likely familiar with the process of giving notice of appeal to the appellate division. Under Rule 4(a) of the North Carolina Rules of Appellate Procedure, a defendant can give notice by either (1) giving oral notice of appeal “at trial,” or (2) by filing a written notice of appeal within 14 days after entry of judgment and serving it on the State. A recent case explains what counts as “at trial” for purposes of giving notice of appeal. Under State v. McLean, COA 23-100, ___ N.C. App. ___ (Aug. 6, 2024), oral notice of appeal is considered made “at trial” and therefore timely as long as it is given within the session of superior court, which is typically one week. “[T]he period of time for Defendant to provide timely notice of appeal at trial commenced following sentencing and ended when the court session adjourned sine die.” McLean Slip op. at 8 (citation omitted) (emphasis in original). Although the defendant in McLean gave oral notice of appeal the morning after the pronouncement of the judgment in his case, the timing of the notice was proper, because the session had not yet ended. This post examines the holding and implications of the McLean decision.
The Timing of Oral Notice of Appeal. Compliance with the requirements for entry of notice of appeal is jurisdictional. State v. Oates, 366 N.C. 264, 266 (2012). An untimely notice of appeal is not sufficient to confer jurisdiction on the appellate division. Appellate Rule 4 permits oral notice of appeal, but only if given at the time of trial (or plea hearing if there is no trial). Id. at 268. An oral notice of appeal might be given too soon, like when a defense attorney announces the intent to appeal a case immediately after the verdict is returned, but before judgment is entered. See State v. Robinson, 236 N.C. App. 446, 448 (2014). An oral notice of appeal can also come too late, like when the defense attorney returns to court the following week to give notice. State v. Perez, 275 N.C. App. 860, 865 (2020) (oral notice of appeal given five days after judgment was ineffective). Prior to McLean, the rule was arguably unclear for situations in the middle. What if the defendant is convicted on a Tuesday, fails to give oral notice of appeal then, but returns to court on Thursday to give oral notice? What if he’s convicted Tuesday morning, but returns to court Tuesday afternoon to give notice of appeal?
The cautious view from the defense perspective has long been that oral notice of appeal should be given immediately following the pronouncement of the judgment, no sooner and no later. If defense counsel forgot to give oral notice of appeal at that time, or if the client only later indicated their intent to appeal, the safest bet to ensure the right to appeal was not lost was to file a written notice of appeal. Appellate defenders would frequently argue in questionable cases that the notice of appeal was sufficient but would also file a petition for writ of certiorari as a backup, just in case the Court of Appeals found the notice of appeal insufficient. Appellate review is possible (but discretionary) via a cert petition when there is no right of direct appeal, or when the right to appeal has been lost by failure to give timely notice of appeal. N.C. R. App. P. 21(a)(1). As McLean notes, the Court of Appeals was apparently getting quite a few of these “just in case” cert petitions, and the court saw an opportunity to clarify the rule about the timeliness of oral notices of appeal in criminal cases.
The panel compared this situation to other instances where the trial court retains authority to act in a case during the same session of court. For instance, the trial court can act to modify a judgment imposed during the same session. State v. Sammartino, 120 N.C. App. 597 (1995) (trial court retained jurisdiction to modify judgments during the same session of court). The court can also re-sentence a defendant during the same session. State v. Quick, 106 N.C. App. 548 (1992) (concluding trial court did not err by modifying sentence even after notice of appeal). Indeed, the North Carolina Supreme Court has held that a trial judge retains authority to modify any of its orders and judgments if the session of court is in progress (or “in fieri”). State v. Godwin, 210 N.C. 447 (1936). This is so even if the defendant has given notice of appeal. State v. Belk, 272 N.C. 517, 518-19 (1968). According to McLean, the rule applies with equal force to giving notice of appeal, and oral notice of appeal may be given at any point during the session of court until the court adjourns sine die. Sine die means “with no day being assigned (as for resumption of a meeting or a hearing).” Black’s Law Dictionary 648 (Second Pocket ed. 2001). The words are spoken by the bailiff at the end of each session of court.
What Constitutes a Session of Court? A “session” of court has a specific meaning here. While sometimes “session” and “term” are used interchangeably, a “term” of court refers to the (typically) six-month assignment of a superior court judge to a particular district, while a “session” of court refers to the (typically) weeklong period of time during which superior court is held within a term. Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150, 154 n. 1, 2 (1994). While a session of superior court is normally one week, it can stretch longer. Under G.S. 15-167, a criminal superior court session may be extended beyond a week when necessary to complete a trial. The criminal superior court session can also be extended by the consent of the parties or when an extension is specifically authorized by law. While the better practice is to issue an order extending the session, an oral announcement in open court is sufficient as long as the parties do not object to the oral order of extension. State v. Hunt, 198 N.C. App. 488, 493-94 (2009). A district court session is normally one day. (For more on court terms, sessions, and the court’s authority to act, check out this paper by former SOG faculty member Micheal Crowell.)
What About District Court Felony Pleas? How does the McLean rule apply to district court felony plea court? In my last post, I discussed the various rules for a district court felony pleas. As noted there, appeals from a felony guilty plea in district court are directly to the appellate division, and the normal rules for giving notice of appeal to the appellate division apply—notice of appeal may be given orally “at trial” or by filing a written notice of appeal within 14 days of the judgment.
How long is a session of felony district court? Where the district court acts as a superior court to accept felony pleas one day and returns to more traditional district court matters the very next day, the felony district court session was one day. In that case, the McLean rule does not benefit the defendant—since the session will have concluded, oral notice of appeal will no longer be timely after the court adjourns for the day, and only a written notice of appeal will do thereafter.
What if Superior Court Ends Early? While the session in criminal superior court is usually a week, it is not unusual in many districts for the session to end early, before the end of the week. Again, once the court has adjourned sine die, the session is concluded (even if the business week has not ended). Then, oral notice of appeal will not be sufficient. Only written notice of appeal will be proper at that point, and only within the 14-day window from the date judgment was entered.
The best practice for defenders is to confer with the client ahead of any verdict or guilty plea about the possibility of appeal and to give oral notice of appeal once the judgment is pronounced if the client wishes to pursue an appeal. That said, it is an easy step to miss after a long trial, and clients may want to consider the options overnight or otherwise not immediately inform defense counsel of the need to give notice of appeal. In those situations, McLean provides a safety valve of sorts for defenders, whereby oral notice of appeal can still be given any time during the session. How long the session is, though, depends on whether the case is in superior court or district court. When the session has expired and written notice of appeal is required, a sample written notice of appeal from superior court to the Court of Appeals is available under the “Appeals” subheading on the Indigent Defense Services motion bank, here.
As always, I can be reached at dixon@sog.unc.edu for any questions, comments, or feedback.
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