Opinion
No. COA15-1038
08-02-2016
STATE OF NORTH CAROLINA v. ERIC ALLEN WILLIAMS, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for the Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Johnston County, No. 09-CRS-3693, 09-CRS-6443 Appeal by Defendant from order entered 7 July 2014 by Judge James G. Bell in Johnston County Superior Court. Heard in the Court of Appeals 12 May 2016. Attorney General Roy A. Cooper, III, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for the Defendant. DILLON, Judge.
Eric Allen Williams ("Defendant") appeals the trial court's denial of his motion to suppress (the "Order"). We affirm.
In 2010, Defendant was convicted by a jury of several crimes, including statutory rape and incest. Defendant then appealed the rape and incest convictions, challenging in pertinent part the trial court's denial of his motion to suppress. In September 2011, this Court remanded in part, directing the trial court to enter written findings of fact and conclusions of law to resolve the material conflict in evidence regarding whether Defendant provided inculpatory statements to law enforcement while in "custody." State v. Williams, ___ N.C. App. ___, 716 S.E.2d 393 (2011) ("Williams I"). On 7 July 2014, the trial court entered the Order as directed by the Williams I Court. On 8 June 2015, Defendant filed a notice of appeal, more than fourteen days after the entry of the Order. On 23 September 2015, Defendant filed a petition for writ of certiorari (the "Petition").
Defendant's notice of appeal is untimely. See N.C. R. App. P. 4(a)(2) (2013). However, N.C. R. App. P. 21(a)(1) authorizes this Court to issue a writ of certiorari "when the right to prosecute an appeal has been lost by failure to take timely action." In light of Defendant's unchallenged assertion that he was not served with or otherwise made aware of the Order until well after the time to file a notice of appeal had expired, we allow the Petition in our discretion.
The State contends that it would be improper for this Court to grant certiorari as "it is not clear [the Williams I Court] intended to review the denial of the motion to suppress a second time." We reject this argument as the language cited from Williams I in support of this position does not evince an intent to bar Defendant from appealing from the Order. Moreover, to contend, as the State has done, that a petition for writ of certiorari is per se invalid and meritless when filed contemporaneous to or in conjunction with an Anders brief is a misapplication of existing caselaw.
Defendant's appointed counsel is unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and requests that this Court conduct its own review of the record on appeal for possible prejudicial error. Counsel has shown to the satisfaction of this Court that he has complied with the requirements of Anders v. California, 386 U.S. 738 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of his right to file written arguments with this Court and providing him with the necessary documents to do so.
Defendant has not filed any written arguments on his own behalf with this Court. In accordance with Anders and Kinch, we have fully examined the Record to determine whether there are any issues of arguable merit, and we have been unable to find any possible prejudicial error and conclude that the appeal is wholly frivolous.
AFFIRMED.
Judges DAVIS and ZACHARY concur.
Report per Rule 30(e).