STATE OF NORTH CAROLINA v. TYQUAN HAYES (2022)

¶ 1 Defendant Tyquan Sykree Hayes seeks review of a civil judgment entered against him in the amount of $1,105 for attorney's fees. Defendant contends that the trial court erroneously entered judgment against him for attorney's fees without first giving him notice and an opportunity to be heard. We grant Defendant's petition for writ of certiorari, vacate the civil judgment, and remand to the trial court for a waiver by Defendant or a hearing on the issue of attorney's fees.

I. Procedural History and Factual Background

¶ 2 Defendant was indicted for and convicted of possession with intent to sell or deliver cocaine. Defendant was sentenced on 26 January 2022 within the presumptive range to 6 to 17 months’ imprisonment. On 31 January 2022, Defendant filed a pro se written notice of appeal “on the results of this trial.”¹ On 11 March 2022, the trial court entered civil judgment in the amount of $1,105 for attorney's fees. Defendant did not file a notice of appeal from that civil judgment, but he later filed a petition for writ of certiorari as to the civil judgment.

II. Discussion

A. Petition for Writ of Certiorari

¶ 3 Defendant failed to notice appeal from the civil judgment for attorney's fees, pursuant to N.C. R. App. P. 3(a). Defendant's appeal is therefore subject to dismissal. State v. Patterson, 269 N.C. App. 640, 643, 839 S.E.2d 68, 71 (2020). However, Defendant has petitioned this Court for a writ of certiorari to hear his appeal. See State v. Mayo, 263 N.C. App. 546, 549, 823 S.E.2d 656, 659 (2019). Contemporaneously with his petition, Defendant filed an appellate brief. The State filed a response to Defendant's petition but did not file an appellate brief. In our discretion, we grant Defendant's petition and review Defendant's appeal from the attorney's fees judgment.

B. Attorney's Fees

¶ 4 Defendant contends that he did not receive notice and an opportunity to be heard on the amount of attorney's fees. We agree.

¶ 5 Whether a Defendant was provided notice and an opportunity to be heard regarding attorney's fees is a question of law reviewed de novo on appeal. State v. Young-Kirkpatrick, 272 N.C. App. 404, 413, 846 S.E.2d 525, 532 (2020). The trial court did not ask Defendant whether he wished to be heard on the issue of attorney's fees. Moreover, there is no other evidence in the record that Defendant received notice, was aware of the opportunity to be heard on the issue, and chose not to be heard. See Friend, 257 N.C. App. at 523, 809 S.E.2d at 907.

¶ 6 In certain circumstances, a trial court may enter a judgment requiring an indigent defendant to pay for a portion of the cost of legal services provided by appointed counsel. See N.C. Gen. Stat. § 7A-455 (2022).

[B]efore entering money judgments against indigent defendants for fees imposed by their court-appointed counsel under N.C. Gen. Stat. § 7A-455, trial courts should ask defendants—personally, not through counsel—whether they wish to be heard on the issue. Absent a colloquy directly with the defendant on this issue, the requirements of notice and opportunity to be heard will be satisfied only if there is other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard on the issue, and chose not to be heard.

State v. Friend, 257 N.C. App. 516, 523, 809 S.E.2d 902, 907 (2018).

¶ 7 During sentencing in this case, the following colloquy between the trial court and defense counsel took place:

[DEFENSE COUNSEL]: ․ [W]e would ask the Court to consider sentencing at the lower end of the presumptive in imposing an active sentence with credit for time served in pretrial confinement.

THE COURT: All right. Does your client wish to be heard, [defense counsel]?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: Are you appointed or retained?

[DEFENSE COUNSEL]: I am appointed, Your Honor.

THE COURT: Do you have a form with you?

[DEFENSE COUNSEL]: I do not right now. I will try to get one put together with my office staff.

THE COURT: I am going to strike, in my discretion, the failure to appear fee previously imposed. I will note that prior counsel has submitted a $540 fee, which I will assess as part of the cost of this action.

Does any family member wish to speak on the defendant's behalf?

․

Monetary, Madam Clerk, the Court makes the following specific findings that it has considered the defendant's ability or inability to pay given his current incarceration, as well as the noted severity of the unrelated pending charges. Accordingly, in the exercise of discretion I will impose as costs the cost of this action, the laboratory analysis fee. In my discretion, I'm not going to oppose (sic) the $100 restitution. In my further discretion, I'm going to remit the jail fees. All monies herein may be rendered as civil judgment. Counsel fees from prior counsel fees in the sum of 540 are likewise awarded and rendered as a civil judgment.

It is unlikely, counsel, that this judgment will alter or affect any status of the defendant if I'm correct in my understanding. ․

¶ 8 Accordingly, we vacate the trial court's judgment for attorney's fees and remand to the trial court for a waiver by Defendant or a hearing on the issue of attorney's fees. See State v. Jacobs, 172 N.C. App. 220, 236, 616 S.E.2d 306, 317 (2005).

III. Conclusion

¶ 9 We vacate the civil judgment for attorney's fees and remand to the trial court to allow Defendant to either waive further proceedings or be given an opportunity to be heard on the matter.

VACATED AND REMANDED.

Report per Rule 30(e).

FOOTNOTES

1.   The sole issue before us on appeal is whether the trial court entered civil judgment for attorney's fees without notice and an opportunity to be heard.

COLLINS, Judge.

Judges ARROWOOD and JACKSON concur.