An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-83

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Davidson County

No. 13 CRS 728

HEATHER WINGATE MARTINEZ

Appeal by Defendant from Judgment entered 4 June 2013 by 

Judge Mark E. Klass in Davidson County Superior Court. Heard in 

the Court of Appeals 23 June 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Teresa M. Postell, for the State.

Mary McCullers Reece for Defendant.

STEPHENS, Judge.

Background

On 1 February 2012, Defendant pled guilty to misdemeanor 

larceny in Guilford County Superior Court. The trial court 

sentenced Defendant to 120 days imprisonment, but suspended the 

sentence and placed Defendant on supervised probation for 18 

months. The judgment also provided that Defendant’s probation 

could be transferred to Davidson County.
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On 12 March 2013, Defendant’s probation officer filed a 

violation report alleging four violations, including an 

allegation that Defendant violated the condition that she 

“[c]ommit no criminal offense in any jurisdiction.” The trial 

court conducted a probation violation hearing on 4 June 2013.

Defendant admitted the violations, and the trial court revoked 

Defendant’s probation “for the willful violation of the 

condition[] that []she not commit any criminal offense . . . .”

The trial court also modified Defendant’s original sentence to 

90 days and activated that sentence, giving Defendant credit for 

2 days served. On 12 June 2013, Defendant filed a handwritten

notice of appeal without the assistance of counsel.

Discussion

As a preliminary matter, we note that Defendant’s pro se 

notice of appeal violates Rule 4 of the North Carolina Rules of 

Appellate Procedure. In pertinent part, Rule 4 provides that any 

party entitled to appeal must do so by either (1) “giving oral 

notice of appeal at trial” or (2) “filing notice of appeal with 

the clerk of superior court and serving copies thereof upon all 

adverse parties within fourteen days after entry of the judgment 

. . . .” N.C.R. App. P. 4(a). In addition, Rule 4 requires that 

a party designate “the court to which appeal is taken” in its 
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notice of appeal. N.C.R. App. P. 4(b). Defendant’s notice of 

appeal indicates that it was timely filed on 12 June 2013, but 

there is no evidence such notice was served on the State. In 

addition, Defendant’s notice of appeal fails to designate the 

court to which appeal is taken. 

Nonetheless, this Court has held that a party’s failure to 

include evidence of service with a notice of appeal is waived 

when the opposing party participates without objection, as the 

State has done here. State v. Ragland, __ N.C. App. __, __, 739 

S.E.2d 616, 620, disc. review denied, __ N.C. __, 747 S.E.2d 548 

(2013). Furthermore, “an appellant’s failure to designate this 

Court in its notice of appeal is not fatal to the appeal where 

the appellant’s intent to appeal can be fairly inferred and the 

appellee[ is] not [misled] by the appellant’s mistake.” Id.

(citation, internal quotation marks, and certain brackets 

omitted). Plaintiff’s statement in the handwritten notice that 

she “would like to appeal [her] sentence of 90 days” is 

sufficient to fairly infer her intent to appeal, and the State’s 

participation indicates that it was not misled. Accordingly, 

“[D]efendant’s failure to serve the notice of appeal and [her]

mistake in failing to name this Court in [her] notice of appeal 

do not warrant dismissal.” See id.
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On appeal, counsel appointed to represent Defendant has 

been unable to identify any issue with sufficient merit to 

support a meaningful argument for relief and asks this Court to 

conduct its own review of the record for possible prejudicial 

error. Counsel has shown to the satisfaction of this Court that 

she 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), by advising Defendant of her

right to file written arguments with this Court and providing 

her with the documents necessary for her to do so.

Defendant has not filed any written arguments on her own 

behalf and a reasonable time within which she could have done so 

has passed. In accordance with Anders, we have fully examined 

the record to determine whether any issues of arguable merit 

appear to exist. We have been unable to find any possible 

prejudicial error and, therefore, conclude that this appeal is 

wholly frivolous.

NO ERROR.

Judges HUNTER, ROBERT C., and ERVIN concur. 

Report per Rule 30(e).