State v. Peele ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-480
Filed: 1 March 2016
Lenoir County, Nos. 11 CRS 543–45, 12 CRS 1214–19
STATE OF NORTH CAROLINA
v.
MARTIN LUTHER PEELE
Appeal by defendant from judgments entered 15 October 2014 by Judge Paul
L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 6 October
2015.
Attorney General Roy Cooper, by Assistant Attorney General Jason R. Rosser,
for the State.
Meghan A. Jones for defendant-appellant.
BRYANT, Judge.
Where the State failed to meet the requirements of Rule 9(b), and where the
State’s evidence was insufficient to confer subject matter jurisdiction upon the trial
court for the revocation of defendant’s probation in Case Nos. 11 CRS 543–45, we
vacate the judgments imposed in those cases. In Case Nos. 12 CRS 1214–19, we
remand to the trial court for correction of clerical errors.
On 13 January 2009, defendant Martin Luther Peele was indicted for two
counts of obtaining property by false pretenses in violation of N.C. Gen. Stat. § 14-
100, a Class H felony. On 6 April 2009, defendant was indicted for thirty-one
STATE V. PEELE
Zachary, J., concurring in result
additional counts of obtaining property by false pretenses. In 2009, defendant was
also charged with a Class 2 misdemeanor, fraudulent disposal of personal property
on which there was a security interest, in violation of N.C. Gen. Stat. § 14-114. The
charges of obtaining property by false pretenses arose from separate incidents
occurring in 2007 and 2008. Defendant owned a business for the construction of metal
buildings, and the charges alleged that in each case, defendant had received money
to construct a building and then either failed to perform work or performed work that
was defective.
On 24 February 2010, a jury found defendant guilty of two charges of obtaining
property by false pretenses, and defendant pled guilty to the misdemeanor charge of
fraudulent disposal of personal property. The court imposed consecutive sentences
in Case Nos. 11 CRS 543–45. Defendant was sentenced in Case No. 11 CRS 543 to a
suspended sentence of thirty days imprisonment and placed on supervised probation
for eighteen months for fraudulent disposal of personal property. In Case Nos. 11
CRS 544 and 545, defendant was given a suspended sentence of six to eight months
imprisonment, placed on supervised probation for forty-eight months, and ordered to
pay restitution in the amount of $5,360.00.
On 1 March 2011, defendant entered pleas of guilty to twenty-seven charges of
obtaining property by false pretenses and four charges of the misdemeanor offense of
failing to perform work for which he had been paid, the latest of which occurred in
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STATE V. PEELE
Zachary, J., concurring in result
April of 2007. Defendant’s pleas were entered pursuant to a plea bargain under the
terms of which he agreed to pay $45,276.47 as restitution to the victims of these
offenses. The State agreed to dismiss other charges pending against defendant and
to dismiss all charges arising from theses offenses that had been lodged against
defendant’s wife.
The thirty-one charges were consolidated into six cases for purposes of
sentencing, and consecutive sentences of eight to ten months imprisonment were
imposed in each case. These sentences were suspended, and in each case defendant
was placed on probation for sixty months. The following chart summarizes the
judgments and the original terms of probation.
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STATE V. PEELE
Zachary, J., concurring in result
Judgment Date File No. Charge Consecutive Original
No./Nos. Sentences in 11 Term of
CRS 543–45 Probation
10 February 2010 11 CR 543 09 CR 2992 30 Days 18
Months
24 February 2010 11 CRS 544 08 CRS 51479 6–8 Months 48
Months
24 February 2010 11 CRS 545 08 CRS 51481 6–8 Months 48
Months
Consecutive
Sentences in 12
CRS 1214–19
1 March 2011 12 CRS 1214 08 CRS 55446, 8–10 Months 60
55448, 55452, Months
55454, 55455,
55458, 55459,
55462
1 March 2011 12 CRS 1215 08 CRS 55463, 8–10 Months 60
55466, 55467, Months
55470, 56978,
56981, 56982,
56985, 56986
1 March 2011 12 CRS 1216 08 CRS 56989, 8–10 Months 60
56991, 56995, Months
56997
1 March 2011 12 CRS 1217 08 CRS 57000, 8–10 Months 60
57001, 57005, Months
57007
1 March 2011 12 CRS 1218 08 CRS 57010, 8–10 Months 60
57011, 57014 Months
1 March 2011 12 CRS 1219 08 CRS 57015, 8–10 Months 60
57309, 09 CRS Months
50785
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STATE V. PEELE
Zachary, J., concurring in result
On 7 August 2014, violation reports were filed in each of the nine cases
discussed above—three cases from 2010 and six cases from 2011. All of the violation
reports alleged that on 4 June 2014, defendant was convicted of obtaining property
by false pretenses, in violation of the requirement that defendant commit no criminal
offenses while on probation. On 15 October 2014, the trial court revoked defendant’s
probation in all nine cases and activated the prison sentences in each case. The trial
court ordered the terms of imprisonment in Case Nos. 11 CRS 543–45 to be served
consecutively, with these three consecutive sentences to be served concurrently with
the six consecutive sentences activated in Case Nos. 12 CRS 1214–19. Defendant
appealed to this Court from the judgments revoking his probation.
________________________________________________________________
On appeal, defendant argues (1) that the trial court lacked subject matter
jurisdiction to revoke his probation in Case Nos. 11 CRS 543–45 and (2) the trial court
made clerical errors in Case Nos. 11 CRS 544–45 and 12 CRS 1214–19 requiring
remand for correction of those errors.
I
Defendant first argues that the trial court lacked subject matter jurisdiction to
revoke his probation in Case Nos. 11 CRS 543–45 because the State failed to prove
that the violation reports were timely filed. We agree.
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STATE V. PEELE
Zachary, J., concurring in result
Defendant’s Motion to Strike the State’s Rule 9(b)(5) Supplement and
All References to the Supplement in the State’s Brief
On 13 May 2015, defendant filed his appellant brief with this Court and served
it on the State by email. On 12 June 2015, the State electronically filed its appellee
brief and filed in person a Rule 9(b)(5) Supplement to the Printed Record on Appeal.
On 18 June 2015, defendant filed a Motion to Strike the State’s Rule 9(b)(5)
Supplement and All References to the Supplement in the State’s Brief. On 23 June
2015, the State filed a Response to defendant’s Motion.
In his Motion to Strike, defendant argues that the State’s 9(b)(5) supplement
fails to satisfy Rule 9 as the documents the State seeks to present to this Court in its
supplement cannot be properly included as they were not introduced at the 15
October 2014 probation violation hearing. We agree and, for the reasons stated
herein, grant defendant’s motion to strike.
Rule 9 of our Rules of Appellate Procedure governs the filing of the record on
appeal. N.C. R. App. P. 9 (2015). In a criminal appeal, the record should contain all
matters presented before the trial court, including
copies of all other papers filed and statements of all other
proceedings had in the trial courts which are necessary for
an understanding of all issues presented on appeal, unless
they appear in the verbatim transcript of proceedings
which is being filed with the record pursuant to Rule
9(c)(2)[.]
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STATE V. PEELE
Zachary, J., concurring in result
Id. 9(a)(3)(i). Where the record on appeal is insufficient to answer the issues
presented on appeal, the record may be supplemented by items allowed under Rule
9, so long as those items “could otherwise have been included pursuant to this Rule
9.” Id. 9(b)(5)(a).
It is well-settled that this Court may “only consider the pleadings and filings
before the trial court . . . .” Twaddell v. Anderson, 136 N.C. App. 56, 68, 523 S.E.2d
710, 719 (1999) (citation omitted). This Court has specifically rejected the State’s
attempt to supplement the Settled Record on Appeal with documents that were never
presented to the trial court in order to prove that a defendant’s probation was tolled.
See, e.g., State v. Karmo, No. COA12-1209, 2013 WL 4006648, *4–5 (N.C. Ct. App.
Aug. 6, 2013) (unpublished).
In Karmo, an unpublished case but directly on point here, the State filed a
supplement to the record along with its brief containing documents tending to show
that the defendant had received various criminal convictions stemming from
incidents which took place while the defendant was on probation. Id. This Court
categorically found that it “lack[ed] authority to consider the information contained
in the supplemental materials presented for [this Court’s] consideration by the State”
because “the record before [this Court] contain[ed] no indication that the documents
contained in the supplement . . . were admitted into evidence at Defendant’s
revocation hearing.” Id. Accordingly, this Court concluded that because
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STATE V. PEELE
Zachary, J., concurring in result
nothing in the record developed before the trial court
tend[ed] to show that Defendant committed any criminal
offenses during, as compared to before or after, his initial
probationary period. As a result, we have no choice but to
conclude that the State failed to demonstrate that the trial
court had jurisdiction to consider the revocation of
Defendant’s probation and the activation of Defendant’s
suspended sentence.
Id. at *3 (emphasis added).
Here, just like the State’s supplement in Karmo, the State’s Rule 9(b)(5)
supplement was filed in order to submit to this Court certain documents which were
not presented to the trial court which, had they been, would have conferred subject
matter jurisdiction on the trial court to revoke defendant’s probation in Case Nos. 11
CRS 543–45. But those documents were not introduced at the 15 October 2014
probation violation hearing in the trial court, even though it is the State’s burden to
establish jurisdiction in that court. State v. Williams, 230 N.C. App. 590, 595, 754
S.E.2d 826, 829 (2013); State v. Moore, 148 N.C. App. 568, 571, 559 S.E.2d 565, 566–
67 (2002) (“The burden of perfecting the trial court’s jurisdiction for a probation
revocation hearing . . . lies squarely with the State.”); State v. Petersilie, 334 N.C. 169,
175, 432 S.E.2d 832, 835 (1993) (“North Carolina requires the State to prove
jurisdiction beyond a reasonable doubt in a criminal case”).
The State argues that, because the documents included in the State’s Rule
9(b)(5) Supplement were filed with the trial court in the case files of the former
proceedings, and because they are necessary for an understanding of the issues
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STATE V. PEELE
Zachary, J., concurring in result
presented on appeal, they are properly part of the record here. N.C. R. App. P.
9(a)(1)(j) (stating that the record on appeal shall contain “copies of all other papers
filed and statements of all other proceedings had in the trial courts which are
necessary for an understanding of all issues presented on appeal”).
However, the North Carolina Supreme Court has previously concluded that
this Court does not act beyond its discretion when it denies the State’s motion to
amend the record to include documents which would be “sufficient to confer
jurisdiction” on the trial court, where the record otherwise before this Court, absent
the proposed amendment, “affirmatively shows a lack of jurisdiction.” Petersilie, 334
N.C. at 177–78, 432 S.E.2d at 836–37; see also State v. Felmet, 302 N.C. 173, 174, 176
273 S.E.2d 708, 710–11 (1981) (concluding that this Court did not abuse its discretion
in denying defendant’s motion to amend the record to include “the judgment of the
district court which reflected defendant’s appeal therefrom to the superior court” in
order to show how the superior court obtained subject matter jurisdiction over the
case).
Accordingly, we decline to invoke Rule 2 and allow a Rule 9(b)(5) supplement
to function as the vehicle by which the State attempts to establish the trial court’s
jurisdiction where it failed to do so before.
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STATE V. PEELE
Zachary, J., concurring in result
Case No. 11 CRS 543
We address defendant’s argument that the trial court lacked subject matter
jurisdiction to revoke his probation in Case No. 11 CRS 543. For reasons set forth
below, we address Case Nos. 11 CRS 544 and 545 separately.
This Court reviews de novo the issue of whether a trial court had subject
matter jurisdiction to revoke a defendant’s probation. State v. Satanek, 190 N.C. App.
653, 656, 660 S.E.2d 623, 625 (2008) (citation omitted). “A court’s jurisdiction to
review a probationer’s compliance with the terms of his probation is limited by
statute.” Moore, 148 N.C. App. at 569–70, 559 S.E.2d at 566 (quoting State v. Hicks,
148 N.C. App. 203, 204–05, 557 S.E.2d 594, 595 (2001)). When a sentence has been
suspended and a defendant has been placed on probation on certain named
conditions, the trial court may, “at any time during the period of probation, require
defendant to appear before it, inquire into alleged violations of the conditions, and if
found to be true, place the suspended sentence into effect.” Id.
However, “the State may not do so after the expiration period of probation
except as provided in G.S. 15A-1344(f).” Id. “The burden of perfecting the trial court’s
jurisdiction for a probation revocation hearing after defendant’s period of probation
has expired lies squarely with the State.” Id. at 571, 559 S.E.2d 566–67 (citations
omitted). The trial court may revoke probation after the expiration of the probation
period only if the State filed a written violation report with the clerk prior to the
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STATE V. PEELE
Zachary, J., concurring in result
expiration of the probation period. N.C. Gen. Stat. § 15A-1344(f) (2015). For purposes
of determining when a document is considered “filed,” the file stamp date is
controlling. “Filed” means the original document has been “received in the office
where the document is to be filed.” N.C. Gen. Stat. § 15A-101.1(7)(a) (2015).
The State bears the burden in criminal cases of “demonstrating beyond a
reasonable doubt that a trial court has subject matter jurisdiction.” Williams, 230
N.C. App. at 595, 754 S.E.2d at 829 (citing Petersilie, 334 N.C. at 175, 432 S.E.2d at
835). A “defendant may properly raise the issue of subject matter jurisdiction at any
time, even for the first time on appeal.” Id. (citation omitted). When the record
“shows a lack of jurisdiction in the lower court, the appropriate action on the part of
the appellate court is to arrest judgment or vacate any order entered without
authority.” Moore, 148 N.C. App. at 570, 559 S.E.2d at 566 (quoting Petersilie, 334
N.C. at 175, 432 S.E.2d at 836).
The violation report in 11 CRS 543 was not filed until 13 August 2014, as
reflected by the file stamp at the top of the first page of the report. In the judgment
suspending sentence, the trial court ordered only 18 months of probation. There are
no orders extending probation and no tolling provisions apply. The effective date for
N.C. Gen. Stat. § 15A-1344(g) (2009) applies only to offenses committed on or after 1
December 2009. 2009 N.C. Sess. Law 2009-327, § 11(b). The previous tolling
provision, N.C. Gen. Stat. § 15A-1344(d) (2007), was removed in 2009 for “hearings
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STATE V. PEELE
Zachary, J., concurring in result
held on or after December 1, 2009.” 2009 N.C. Sess. Law 2009-372, § 11(a); see also
N.C. Gen. Stat. § 1344(g), repealed by 2011 N.C. Sess. Law 2011-62, § 3, eff. Dec. 1,
2011.
The probationary period in 11 CRS 543 ended on 9 August 2011, 18 months
after probation began on 10 February 2010. Therefore, the violation report with a
file stamp of “13 August 2014” was filed too late to confer jurisdiction on the trial
court to revoke defendant’s probation and activate the suspended sentence. See
N.C.G.S. § 15A-1344(f); Moore, 148 N.C. App. at 569, 559 S.E.2d at 566.
As stated above, a Rule 9(b) supplement to the record on appeal can only
contain documents presented to the trial court. Twaddell, 136 N.C. App. at 68, 523
S.E.2d at 719. As we have already established, the State’s Rule 9(b)(5) supplement
was filed in order to confer jurisdiction on the trial court, and the State otherwise
failed to establish that the trial court had jurisdiction to consider the revocation of
defendant’s probation in Case No. 11 CRS 543.
The State alleges that the documents, filed as a Rule 9 supplement, had they
been properly introduced in the trial court below and made part of the record here,
would confer jurisdiction on the trial court to revoke defendant’s probation in Case
No. 11 CRS 543. However, because this Court denies the State’s 9(b)(5) supplement
to the record, and the State cannot establish that the trial court had jurisdiction to
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STATE V. PEELE
Zachary, J., concurring in result
consider the revocation of defendant’s probation in Case No. 11 CRS 543, we vacate
the judgment entered thereon.
Case Nos. 11 CRS 544 and 545
Defendant also argues that the trial court lacked subject matter jurisdiction to
revoke his probation in Case Nos. 11 CRS 544 and 545. We agree.
Defendant’s probation cases under 11 CRS 544 and 545, for the same reasons
discussed supra regarding Case No. 11 CRS 543, suffer from lack of jurisdiction. In
the judgment suspending sentence, the trial court ordered 48 months of probation.
There are no orders extending probation, and again, no tolling provisions apply in
these cases. The probationary period ended on 23 February 2014—48 months after
probation began on 24 February 2010. Accordingly, the violation reports filed on 13
August 2014 in both Case Nos. 11 CRS 544 and 545 were filed over five months after
the expiration of the probationary period on 24 February 2014. Accordingly, the
judgments entered in Case Nos. 11 CRS 544 and 545 are vacated.1
II
Defendant next argues that clerical errors were made in Case Nos. 12 CRS
1214–19, which require remand for correction. Defendant argues that the trial court
marked boxes which indicated erroneously that, in the original judgments
1 Because we vacate the judgments, we do not remand for correction of the clerical errors that
were a part of those judgments.
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Zachary, J., concurring in result
suspending sentence, the court found that the offenses involved assault,
communicating threats, or another act defined in N.C. Gen. Stat. § 50B-1(a) and that
defendant had a personal relationship, as defined by N.C. Gen. Stat. § 50-1(b), with
the victim in Case Nos. 12 CRS 1214–19. We agree.
A clerical error is an error “resulting from a minor mistake or inadvertence, in
writing or copying something on the record, and not from judicial reasoning or
determination.” State v. Lark, 198 N.C. App. 82, 95, 678 S.E.2d 693, 702–03 (2009)
(quoting State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000)).
“Clerical errors include mistakes such as inadvertently checking the wrong box on
preprinted forms.” Rudder v. Rudder, ___ N.C. App. ___, ___, 759 S.E.2d 321, 326
(2014) (citation omitted).
“When, on appeal, a clerical error is discovered in the trial court’s judgment or
order, it is appropriate to remand the case to the trial court for correction because of
the importance that the record speak the truth.” Lark, 198 N.C. App. at 95, 678
S.E.2d at 702 (quoting State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696
(2008)). Further, where “the sentence imposed will not be affected by a recalculation
of [a] [d]efendant’s prior record points, it is not necessary that there be a new
sentencing hearing.” State v. Everette, ___ N.C. App. ___, ___, 764 S.E.2d 634, 639
(2014).
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STATE V. PEELE
Zachary, J., concurring in result
Here, on six of the judgments entered upon revocation of probation in 12 CRS
1214–19, the trial court marked boxes indicating that the underlying offense involved
assault, communicating a threat, or an act defined in N.C.G.S. § 50B-1(a), and that
the defendant had a personal relationship with the victim as defined by N.C.G.S. §
50B-1(b).
However, none of the original judgments suspending sentence support such
findings. The respective boxes, denoted No. 10 on the preprinted forms (Form AOC-
CR-603), for finding that “this is an offense involving assault or communicating a
threat and that the defendant had a personal relationship as defined by G.S. 50B-
1(b) with the victim” on the original judgments suspending sentence, all remain
unmarked. It appears that the trial court “inadvertently” checked this box on these
preprinted forms.
The reason that remand is appropriate in this case for the correction of clerical
errors is because any subsequent inquiry into defendant’s criminal record will
erroneously reflect that underlying offenses “involved domestic violence” on eight
separate judgments. See generally N.C. Gen. Stat. § 15A-1382.1 (2015).
Because the errors here do not affect the sentences imposed, and because
failure to correct these errors could prejudice defendant, and defendant does not
argue that new hearings are necessary, we remand this matter to the trial court for
the correction of the aforementioned clerical errors.
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STATE V. PEELE
Zachary, J., concurring in result
VACATED IN PART, REMANDED IN PART.
Judge CALABRIA concurs.
Judge ZACHARY concurs in the result only by separate opinion.
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No. COA 15-480, State v. Peele
Judge ZACHARY, concurring in result.
I concur with the holding that, in the absence of the information contained in
the State’s supplement to the record, we are unable to determine that the trial court
had jurisdiction over the probation revocation proceedings challenged by defendant
on appeal. Given the decision not to exercise our authority under N.C.R. App. P. Rule
2 in order to allow the State to supplement the record, the judgments revoking
defendant’s probation in these cases must be vacated. I write separately in order to
express my view that it would have been preferable to invoke Rule 2, in order to reach
the merits of the issue of the trial court’s jurisdiction.
“The State bears the burden in criminal matters of demonstrating beyond a
reasonable doubt that a trial court has subject matter jurisdiction.” State v. Williams,
230 N.C. App. 590, 595, 754 S.E.2d 826, 829 (2013) (citing State v. Petersilie, 334 N.C.
169, 175, 432 S.E.2d 832, 835 (1993)), disc. review denied, 367 N.C. 298, 753 S.E.2d
670 (2014). In Petersilie our Supreme Court held that, although this Court had not
erred by denying the State’s motion to amend the record to add the documents that
established subject matter jurisdiction, the better approach is to grant such a motion:
In [State v.] Felmet, [302 N.C. 173, 273 S.E.2d 708 (1981),]
the defendant moved for leave to amend the record to
include “the judgment of the district court which reflected
defendant’s appeal therefrom to the superior court” to show
how the superior court obtained subject matter jurisdiction
over his case. The Court of Appeals denied the motion. We
concluded that the denial was a decision within the
discretion of the Court of Appeals[.] . . . Nevertheless, we
STATE V. PEELE
Zachary, J., concurring in result
held the record should be amended to reflect subject matter
jurisdiction so that we could reach the substantive issue of
the appeal. In so holding, we stated, “[this] is the better
reasoned approach and avoids undue emphasis on
procedural niceties.” While we find no abuse of discretion
on the part of the Court of Appeals in denying the State’s
motion to amend, we elect as we did in Felmet to allow the
State leave to amend. When the record is amended to add
the presentment, it is clear the superior court had
jurisdiction[.]
Petersilie, 334 N.C. at 177-78, 432 S.E.2d at 837 (quoting State v. Felmet, 302 N.C.
173, 174, 176, 273 S.E.2d 708, 710-11 (1981)).
My belief that it would have been preferable to invoke Rule 2 in this case in
order to reach the merits of this issue is based in part on the longstanding rule that
the “ ‘issue of a court’s jurisdiction over a matter may be raised at any time, even for
the first time on appeal or by a court sua sponte.’ ” State v. Kostick, __ N.C. App. __,
__, 755 S.E.2d 411, 418 (quoting State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d
621, 622 (2008)), disc. review denied, 367 N.C. 508, 758 S.E.2d 872 (2014). When the
issue of subject matter jurisdiction is determined for the first time on appeal then, by
definition, the issue was not litigated at the trial level. It is inconsistent to, on one
hand, allow inquiry into the existence of jurisdiction for the first time at the appellate
level, but on the other hand to restrict our analysis to consideration of documents
presented at the trial level, where the issue was not even raised. However, given that
we have not allowed the State to supplement the record, I concur in the result reached
in this opinion.
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