State v. Futrelle ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1289
Filed: 2 July 2019
Orange County, No. 14 CRS 052399
STATE OF NORTH CAROLINA
v.
STEPHEN TREY FUTRELLE, Defendant.
Appeal by Defendant from order entered 2 May 2018 by Judge R. Allen
Baddour, Jr. in Orange County Superior Court. Heard in the Court of Appeals 9 May
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant-appellant.
MURPHY, Judge.
Defendant, Stephen Trey Futrelle, filed a Motion for Appropriate Relief
(“MAR”) in Superior Court, alleging the trial court lacked subject matter jurisdiction
to enter judgment based upon his plea of guilty to felony possession of a Schedule I
controlled substance and misdemeanor possession of more than one-half ounce, but
less than one and one-half ounces, of marijuana. Defendant argues the bill of
information charging him with these two offenses was invalid because the waiver of
STATE V. FUTRELLE
Opinion of the Court
indictment contained therein was not signed by his attorney as required by N.C.G.S.
§ 15A-642(c). We agree and vacate the trial court’s order denying Defendant’s MAR.
BACKGROUND
Defendant was arrested on 23 August 2014 in Orange County for felony
possession of MDMA, a Schedule I controlled substance, and misdemeanor possession
of more than one-half ounce, but less than one and one-half ounces, of marijuana. On
7 January 2015, Defendant was charged with these two offenses by bill of
information. The bill of information contained a waiver of indictment, which was
signed by the prosecutor for the State and Defendant. Defendant’s attorney did not
sign the waiver of indictment included in the bill of information.
Defendant later pled guilty to the two offenses charged, and the trial court
accepted Defendant’s plea. The trial court entered a conditional discharge on 7
January 2015 and placed Defendant on supervised probation for 12 months. The
conditions of Defendant’s probation were twice modified, in May and October 2015.
On 31 March 2017, judgment was entered on the two offenses, and the trial court
imposed a suspended sentence, placing Defendant on supervised probation for 12
months. Defendant completed probation on 31 March 2018.
On 13 April 2018, Defendant filed an MAR claiming the Superior Court lacked
jurisdiction to enter judgment on the two offenses because the bill of information was
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Opinion of the Court
invalid due to the absence of his counsel’s signature. The trial court denied
Defendant’s MAR, making the following conclusions of law:
1. The purpose of NCGS 15A-642 is to ensure that
defendants not indicted by the grand jury only appear by
bill of information and waiver of the grand jury indictment
with the advice and consent of counsel.
2. Defendant signed the bill of information and though
counsel did not, it is clear that the case proceeded with the
advice and consent of counsel, as the Transcript of Plea and
Conditional Discharge were all executed on the same day
(January 7, 2015).
3. These documents, when read together, clearly indicate
that the information was executed knowingly and
voluntarily.
4. The statutory requirements have been substantially
met.
We allowed Defendant’s petition for writ of certiorari for the purpose of reviewing the
trial court’s order denying Defendant’s MAR.
ANALYSIS
Defendant argues the trial court erred in concluding that the requirements set
by N.C.G.S. § 15A-642 for a valid waiver of indictment were satisfied in this case. He
contends that without a valid waiver of indictment, the Superior Court lacked
jurisdiction to enter judgment on the two offenses. We agree.
Under N.C.G.S. § 15A-1415, a “defendant may assert by a motion for
appropriate relief” that “[t]he trial court lacked jurisdiction over the person of the
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Opinion of the Court
defendant or over the subject matter.” N.C.G.S. § 15A-1415(b) (2017). “When
considering rulings on motions for appropriate relief, we review the trial court’s order
to determine whether the findings of fact are supported by evidence, whether the
findings of fact support the conclusions of law, and whether the conclusions of law
support the order entered by the trial court.” State v. Frogge, 359 N.C. 228, 240, 607
S.E.2d 627, 634 (2005) (citation and internal quotation marks omitted).
The North Carolina Constitution provides that “[e]xcept in misdemeanor cases
initiated in the District Court Division, no person shall be put to answer any criminal
charge but by indictment, presentment, or impeachment. But any person, when
represented by counsel, may, under such regulations as the General Assembly shall
prescribe, waive indictment in noncapital cases.” N.C. Const. art. I, § 22. Thus, “[t]he
pleading in felony cases and misdemeanor cases initiated in the [S]uperior [C]ourt
division must be a bill of indictment, unless there is a waiver of the bill of indictment
as provided in G.S. § 15A-642. If there is a waiver, the pleading must be an
information.” N.C.G.S. § 15A-923(a) (2017).
N.C.G.S. § 15A-642 proscribes when an indictment may be waived and the
requirements for a valid waiver. The “[i]ndictment may not be waived in a capital
case or in a case in which the defendant is not represented by counsel.” N.C.G.S. §
15A-642(b) (2017). Additionally, the waiver “must be in writing and signed by the
defendant and his attorney. The waiver must be attached to or executed upon the
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Opinion of the Court
bill of information.” N.C.G.S. § 15A-642(c) (2017). Therefore, in a non-capital case in
which a defendant is represented by counsel, a waiver of indictment is not valid
unless it is (1) in writing, (2) signed by the defendant, (3) signed by his or her attorney,
and (4) attached to or executed upon the bill of information.
The statutory requirements of N.C.G.S. § 15A-642 are “intended to carry out
the constitutional mandate of Article I, Section 22” and are “jurisdictional and
mandatory.” State v. Nixon, ___ N.C. App. ___, ___, 823 S.E.2d 689, 692 (2019). In
Nixon, the bill of indictment “contain[ed] absolutely no language waiving indictment
and no waiver appear[ed] to be attached or included in the Record . . . .” Id. In State
v. Neville, 108 N.C. App. 330, 423 S.E.2d 496 (1992), neither the “defendant nor his
attorney signed the waiver of a Bill of Indictment attached to the Bill of Information
. . . .” Id. at 332, 423 S.E.2d at 497. In both cases, we held that the absence of a valid
waiver under N.C.G.S. § 15A-642 deprived the trial court of jurisdiction to accept the
defendants’ guilty pleas and to enter judgment. Id. at 333, 423 S.E.2d at 497; Nixon,
___ N.C. App. at ___, 823 S.E.2d at 692.
Here, the bill of information contained a waiver of indictment that was in
writing and signed by Defendant; however, the waiver of indictment was not signed
by Defendant’s attorney. The absence of Defendant’s attorney’s signature on the
waiver of indictment attached to the bill of information violates the requirements of
N.C.G.S. § 15A-642. The trial court concluded that, despite the absence of
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Defendant’s attorney’s signature on the waiver of indictment, “the statutory
requirements have been substantially met.” This conclusion ignores the plain
language of the statute, which clearly and unambiguously states the “[w]aiver of
indictment must be . . . signed by the defendant and his attorney.” N.C.G.S. § 15A-
642(c) (2017) (emphasis added). The statute makes no exception for its requirement
of a signature by a defendant’s attorney, nor does the statute contain language that
this requirement can be “substantially met.” Rather, this requirement, and all others
in N.C.G.S. § 15A-642(c), are “mandatory.” Nixon, ___ N.C. App. at ___, 823 S.E.2d
at 692. The waiver of indictment was thus rendered invalid without Defendant’s
attorney’s signature, depriving the trial court of jurisdiction to accept Defendant’s
guilty plea and enter judgment. The trial court erred in denying Defendant’s MAR.
CONCLUSION
The absence of Defendant’s attorney’s signature on the waiver of indictment
attached to the bill of information rendered the waiver invalid, thus depriving the
Superior Court of jurisdiction. Accordingly, we reverse the trial court’s order denying
Defendant’s MAR on this ground and remand with instructions to grant the MAR and
vacate the judgment. We need not reach, and accordingly dismiss, Defendant’s
motion to arrest judgment made in the alternative.
REVERSED AND REMANDED; DISMISSED.
Judges DIETZ and COLLINS concur.
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