Morgan’s prior blog post on State v. McLean started the wheels turning on a topic I find fascinating: oral notices of appeal.
Civil lawyers love written notices of appeal. Have you ever heard a civil attorney say, “I wish I could orally notice an appeal”? Me neither. But the criminal trial bar overwhelmingly give oral notices of appeal in state cases—even though written notices are available. Why the difference?
I’ve talked to several criminal lawyers (prosecution and defense) about it. The consensus seems to be that state criminal trial practice is high volume, fast paced, and courtroom driven. Criminal trial lawyers spend large amounts of time in the courtrooms. Trial judges are not creating a few detailed written orders. Rather, they are checking boxes on the AOC’s judgment and commitment form, making handwritten notations, and moving on to the next case. The completed judgment might never be served on counsel or file stamped. And even when a judgment is placed in a courtroom box, counsel might not receive it until sometime later. In this type of environment, oral notices of appeal help avoid potential problems associated with paperwork slipping through the cracks.
In a related vein, most criminal cases—unlike civil litigation—are not “paper” heavy. Doubt that? Compare the size of a typical appellate record in civil versus criminal cases.
Add to that this anecdotal evidence. In 1988, the Supreme Court eliminated oral notices of appeal in both civil cases and criminal cases. See Amendments to Rules of Appellate Procedure, reprinted at 368 N.C. 1068 (1988). I’m told that the Supreme Court’s shift to written notices of appeal created elation within the civil bar—and gnashing of teeth within the criminal bar. Before the ink could dry on the amendments, the Supreme Court reinstated oral notices of appeal for criminal cases only. Order Adopting Amendments to Rules of Appellate Procedure, reprinted at 324 N.C. 585 (1989).
But lately, oral notices appear to be creating roadblocks in the appellate courts.
For example, in State v. McLean, the Court of Appeals suggested that it was receiving large numbers of “just-in-case” certiorari petitions. And that’s because when criminal appellate attorneys start reviewing a file, they must assess whether the oral notice of appeal that was given satisfies a myriad of (sometimes conflicting) case law on Appellate Rule 4.
McLean is an example of one issue that has spawned many conditional PWCs: the meaning of the phrase “at trial” under Appellate Rule 4.
So, what does “at trial” mean? A layperson might assume that trials end when a jury returns a guilty verdict and is discharged. But does that make sense under Appellate Rule 4? Until a sentence is pronounced, a final judgment is not entered. And giving oral notice before a sentence is pronounced creates another notice of appeal landmine: premature notices of appeal.
What’s more, most criminal defendants never go to trial—opting instead to plead guilty. What does “at trial” mean in that situation? None of the folks I spoke with believed that oral notices of appeal should be unavailable to these defendants. Does “at trial” require that oral notice be given the moment a sentence is pronounced? The same day that a sentence is pronounced? Or something different?
And do any of these interpretations line up with prevailing trial practice? The pace at which pleas are taken, sentences pronounced, defendants taken into custody, and the next case called up is often lightning fast. Criminal attorneys need their clients’ informed consent before noticing an appeal. While that might be easy in some cases, in other cases it may take more than a minute. Should trial judges pause between cases (or stay in the courtroom at the end of the day) while defense counsel and their clients decide whether to appeal?
I view State v. McLean as an effort to give a practical, and easier to pinpoint, construction to an otherwise ambiguous phrase. Cases stating that a sentence can be changed until a session ends appear to dovetail nicely with McLean’s position that proceedings in a criminal case remain open until that session of court ends.
Also, section 15A-1448 appears to support the idea that the opportunity to give oral notice of appeal doesn’t end when a trial judge moves to the next case. N.C. Gen. Stat. § 15A-1448(a)(1) (“A case remains open for the taking of an appeal to the appellate division for the period provided in the rules of appellate procedure for giving notice of appeal.”).
I’d love to hear your thoughts. Since defendants have a constitutional right to an appeal, shouldn’t the gateway to our appellate system be easy for trial counsel (and defendants) to navigate? Otherwise, don’t all these cases turn into per se ineffective assistance of counsel claims? If the established procedures for orally noticing an appeal were simple and intuitive, wouldn’t we expect petitions for writ of certiorari to be rare? When ambiguity exists within a procedural rule, should the rule be construed in favor of the State or a criminal defendant? And on a human note, when the government puts someone in jail for the next 10 to 30 years, do we want them thinking, “If my state-appointed trial lawyer hadn’t screwed up my appeal, I wouldn’t be here….”
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