STATE v. JOHNSON (2021)

¶ 1 Defendant filed an Anders brief requesting we review his case which resulted in the resentencing of multiple drug-related convictions. In 2018, defendant filed a prior appeal to this Court wherein he challenged his sentences, State v. Johnson, 265 N.C. App. 85, 827 S.E.2d 139 (2019) (“Johnson I”). Ultimately, this Court vacated defendant's judgment and “remanded for resentencing.” Johnson I, 265 N.C. App. at 91, 827 S.E.2d at 143 (Original in all caps.). On 5 June 2019, defendant was resentenced, and he appeals.

¶ 2 The State notes defendant failed to give timely oral or written notice of appeal under North Carolina Rule of Appellate Procedure 4. See generally N.C. R. App. P. 4. Defendant acknowledges his failure to properly appeal and filed a petition for a writ of certiorari (“PWC”) requesting review. See generally N.C. R. App. P. 21(a)(1) (“The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court ruling on a motion for appropriate relief.”). We allow defendant's PWC.

In 1967, the United States Supreme Court held that an attorney for an indigent criminal defendant, who after a conscientious examination of the record believes an appeal of his client's conviction would be “wholly frivolous,” may so advise the appellate court in a brief to that court “referring to anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, 498 (1967); see State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). The appellate court, after a full examination of the proceedings, is to then decide whether the appeal is wholly frivolous or has some merit. Anders, 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498; Kinch, 314 N.C. at 102, 331 S.E.2d at 667. The Anders brief, as it has come to be known, is grounded in the due process and equal protection clauses of the United States Constitution and assures an indigent defendant the “same rights and opportunities on appeal ․ as are enjoyed by those persons who are in a similar situation but are able to afford the retention of private counsel.” Anders, 386 U.S. at 744–45, 87 S.Ct. at 1400–01, 18 L.Ed.2d at 498–99.

In re May, 153 N.C. App. 299, 301, 569 S.E.2d 704, 706-07 (2002), aff'd, 357 N.C. 423, 584 S.E.2d 271 (2003).

¶ 3 Defendant's attorney has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has also shown to the satisfaction of this Court that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). We have fully examined the record to determine whether any issues of arguable merit appear but have been unable to find any possible prejudicial error and conclude that this appeal is wholly frivolous.

NO ERROR.

Report per Rule 30(e).

STROUD, Chief Judge.

Judges HAMPSON and GRIFFIN concur.