Parishdion M. Higgs (“Defendant”) argues the trial court erred by entering a civil judgment against him for attorneys fees and an attorney appointment fee without providing notice and an opportunity to be heard. We vacate the civil judgment and remand for resentencing.
I. Background
N.C. State Highway Patrol Trooper Chris Matison (“Trooper Matison”) stopped Defendant on 21 June 2020, for speeding on I-440 West. Defendant was cited for driving 79 miles per hour in a 60 mile per hour zone. Upon performing a series of standardized field sobriety tests, Trooper Matison arrested Defendant for driving while impaired.
Defendant pled guilty to driving while impaired in Wake County District Court on 24 May 2022, after his pre-trial motion to suppress was denied. Defendant appealed to Wake County Superior Court. On 10 January 2023, Defendants pre-trial motion to suppress was heard. The court again denied his motion. Defendant pled guilty on 6 March 2023 to driving while impaired, pursuant to a plea agreement which preserved his right to appeal the denial of his motion to suppress.
Issues arose during the trial courts hearing conducted on 6 March 2023 for the plea and sentencing. The trial courts only conversation with Defendant regarding attorneys fees follows:
THE COURT: How much time do you have on the matter?
MR. ELMORE ([D]efendants court-appointed attorney): Eight hours.
THE COURT: Sir, do you have any objection to the time your lawyers spent dedicated to your case?
DEFENDANT: No, sir.
THE COURT: Youll be responsible for that as part of the costs.
At no point did the trial court specify the amount of the attorneys fees or it was imposing an attorney appointment fee, nor did the trial court allow Defendant to be heard on the issue.
On 10 March 2023, the trial court sentenced Defendant to twelve months suspended and placed him on supervised probation, Defendants court-appointed attorney gave oral notice of appeal in open court. On 10 April 2023, the trial court entered a civil judgment for attorneys fees in the amount of $520.00 and a $75.00 attorney appointment fee. Defendant appeals.
II. Jurisdiction
“[J]udgments entered against a defendant for attorney fees and appointment fees constitute civil judgments, which require a defendant to comply with Rule 3(a) of the North Carolina Rules of Appellate Procedure when appealing from those judgments.” State v. Patterson, 269 N.C. App. 640, 642, 839 S.E.2d 68, 71 (2020) (citations omitted). Rule 3(a) requires the appealing party to file and serve a written notice of appeal within thirty days after entry of judgment. N.C. R. App. P. 3(a). Failure to comply with the requirements of Rule 3 “mandates dismissal of an appeal.” Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000).
Defendant appealed pursuant to N.C. Gen. Stat. § 7A-27, contemporaneously with a petition for writ of certiorari if his appeal is dismissed. As to his direct appeal, Defendants counsel gave oral notice of appeal from Defendants criminal judgment at the sentencing hearing on 10 March 2023. N.C. R. App. P. 4(a)(1). Judgments for attorneys fees are civil judgments. Patterson, 269 N.C. App. at 642, 839 S.E.2d at 71. Defendant was required to serve a written notice of appeal to preserve the issue of attorneys fees. N.C. R. App. P. 3(a). Defendant failed to serve a written notice of appeal, which mandates a dismissal of his direct appeal. Bailey, 353 N.C. at 156, 540 S.E.2d at 322.
Although Defendants Rule 3 violation prohibits this Court from hearing his direct appeal, this Court possesses discretion to consider the matter by granting a petition for writ of certiorari. See State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 321 (2005); N.C. Gen. Stat. § 7A-32(c) (2023); N.C. R. App. P. 21(a)(2023).
“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.” N.C. R. App. P. 21(a)(1). “A petition for the writ must show merit or that error was probably committed below.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation omitted).
In State v. Friend, this Court issued a writ of certiorari where a litigant failed to appeal a civil judgment for attorneys fees because the litigants “argument on the issue of attorneys’ fees [was] meritorious.” 257 N.C. App. 516, 519, 809 S.E.2d 902, 905 (2018).
Defendants “argument on the issue of attorney[’s] fees is meritorious.” Id. As occurred in State v. Friend, we allow Defendants petition and issue a writ of certiorari to review Defendants appeal. Id.
III. Standard of Review
“A party can recover attorneys fees only if such a recovery is expressly authorized by statute.” Marecic v. Baker, 290 N.C. App. 552, 892 S.E.2d 110 (2023) (citation and quotation marks omitted). “The question of whether statutory requirements have been met for an award of attorneys fees is a question of law reviewable de novo.” Limerick v. Rojo-Limerick, 288 N.C. App. 29, 32, 885 S.E.2d 96, 98 (2023) (citation omitted).
The standard of review for alleged violations of constitutional rights is also de novo. State v. Shackelford, 264 N.C. App. 542, 551, 825 S.E.2d 689, 695 (2018) (quoting State v. Roberts, 237 N.C. App. 551, 556, 767 S.E.2d 543, 548 (2014)). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).
IV. Issue
Did the trial court err in imposing attorneys fees and an appointment fee on Defendant without providing him sufficient notice or the opportunity to be heard?
V. Analysis
A “trial court may enter a civil judgment against a convicted indigent defendant for the amount of fees incurred by the defendants court-appointed attorney.” State v. Jacobs, 172 N.C. App. 220, 235, 616 S.E.2d 306, 316 (2005); N.C. Gen. Stat. § 7A-455(b) (2023). The trial court may also impose a $75.00 attorney appointment fee. N.C. Gen. Stat. § 7A-455.1(a) (2023).
This Court has recognized awarding fees to a defendants appointed trial counsel raises the concern that “the interests of appointed trial counsel and a defendant may not be aligned on this issue—including what amount of fees should reasonably be awarded.” State v. Baungartner, 273 N.C. App. 580, 585, 850 S.E.2d 549, 553 (2020).
“For example, a defendant may believe that the amount of fees requested is unreasonable given the time, effort, or responsibility involved in defending the case. Counsel, unsurprisingly, might feel otherwise.” Friend, 257 N.C. App. at 523, 809 S.E.2d at 907.
To avoid this risk, “the trial court must give the defendant ‘notice and an opportunity to be heard regarding the total amount of hours and fees claimed by the court-appointed attorney.’ ” State v. Morgan, 259 N.C. App. 179, 185, 814 S.E.2d 843, 848 (2018), revd on other grounds, 372 N.C. 609, 831 S.E.2d 254 (2019) (quoting Jacobs, 172 N.C. App. at 236, 616 S.E.2d at 317). Failure to do so violates Defendants constitutional right to due process; “the fundamental premise of procedural due process protection is notice and the opportunity to be heard.” Lipinski v. Town of Summerfield, 230 N.C. App. 305, 308, 750 S.E.2d 46, 49 (2013) (citation omitted).
The State concedes Defendant “did not receive proper notice of the attorneys fees and appointment fee against him, nor an opportunity to be heard regarding these fees.” The only conversation between the trial court and Defendant regarding attorneys fees related to the number of hours Defendants trial counsel had spent. The trial court did not provide Defendant with notice of the total amount of fees to be awarded, the appointment fee, or the opportunity to be heard on the issues. We vacate both the civil judgment for attorneys fees under N.C. Gen. Stat. § 7A-455(b), and the appointment fee under N.C. Gen. Stat. § 7A-455.1(a) and remand for further proceedings.
VI. Conclusion
A long line of cases from this Court and our Supreme Court have remanded trial court decisions for a proper hearing and imposition of attorneys fees. Jacobs, 172 N.C. App. at 237, 616 S.E.2d at 317; Friend, 257 N.C. App. at 523, 809 S.E.2d at 907; Morgan, 259 N.C. App. at 187, 814 S.E.2d at 849; Baungartner, 273 N.C. App. at 587, 850 S.E.2d at 554; Patterson, 269 N.C. App. at 648, 839 S.E.2d at 74.
“The potential ․ for unjustly depriving any person of basic due process right to notice and an opportunity to be heard outweighs any inefficiency caused by the process of remanding these matters back to the trial court.” Baungartner, 273 N.C. App. at 587, 850 S.E.2d at 554 (2020).
Defendants petition for writ of certiorari is granted. We vacate the trial courts imposition of attorneys fees and appointment fee and remand the case for further proceedings.
VACATED AND REMANDED.
Report per Rule 30(e).
PER CURIAM.