STATE v. KILLETTE (2022)

¶ 1 The facts giving rise to this appeal are set forth in detail in this Court's first opinion. State v. Killette, 261 N.C. App. 774, 818 S.E.2d 646, 2018 WL 4701970 (2018) (unpublished). Defendant moved to suppress evidence seized during two searches. Both motions were denied by the trial court. On 6 July 2017, Defendant entered an Alford plea pursuant to agreement with the State. Following sentencing and the entry of judgment, Defendant filed notice of appeal. Defendant's appellate counsel also filed a petition for writ of certiorari (“PWC”) with this Court.

¶ 2 This Court dismissed Defendant's appeal, holding that: (1) he had forfeited his right to appeal by failing to provide notice of his intention to appeal to the prosecutor and court prior to negotiations being finalized; and, (2) this Court lacked authority under Rule 21 of the North Carolina Rules of Appellate Procedure to issue the writ. The Supreme Court remanded for reconsideration in light of State v. Ledbetter, 371 N.C. 192, 814 S.E.2d 39 (2018) and State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015) (Rule 21 does not limit appellate jurisdiction to issue a writ of certiorari), and instructed this Court to exercise its discretion in deciding whether to allow or deny Defendant's petition.

¶ 3 Upon remand, this Court again denied Defendant's petition, holding that it was “without authority to grant a writ of certiorari.” State v. Killette, 268 N.C. App. 254, 258, 834 S.E.2d 696 (2019) (citation omitted) (Killette II). The Supreme Court vacated that decision, noting that its prior decisions “should have made it clear that the Court of Appeals possessed jurisdiction and authority to exercise its discretion in reviewing and deciding to allow or deny defendant's petition.” State v. Killette, 381 N.C. 686, 690, 873 S.E.2d 317, 319 2022-NCSC-80, ¶ 14 (2022) (Killette III).

¶ 4 Upon remand, and in the exercise of our discretion we have again reviewed Defendant's petition and find Defendant has demonstrated no merit or prejudice. See State v. Robinson, 148 N.C. App. 422, 428, 560 S.E.2d 154, 159 (2002) (holding warrantless search of probationer's home by probation officer on anonymous tip of illegal activity “clearly furthered the supervisory goals of probation” and was thus constitutionally reasonable); State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997) (recognizing consent to search a probationer's home as “a special situation excepted from the warrant requirement”).

¶ 5 In the exercise of our discretion, Defendant's PWC is denied, and his appeal is dismissed. See State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959); State v. Ricks, 378 N.C. 737, 741, 862 S.E.2d 835, 839, 2021-NCSC-116, ¶7 (2022) (holding that certiorari is purely a discretionary writ).

DISMISSED.

Report per Rule 30(e).

PER CURIAM.

Panel consisting of Judges Tyson, Inman, and Jackson.