State v. Neville , 108 N.C. App. 330 ( 1992 )

423 S.E.2d 496 (1992) 108 N.C. App. 330

STATE of North Carolina
v.
Bobby Porter NEVILLE.

No. 9115SC828.

Court of Appeals of North Carolina.

December 15, 1992.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Philip A. Lehman, Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, Raleigh, for defendant-appellant.

WALKER, Judge.

On appeal defendant argues: (1) his guilty plea to uttering is a nullity because he never formally waived his right to a Bill of Indictment, and he was never indicted for uttering; and (2) the sentencing court erred in failing to find as a mitigating factor that the relationship between defendant and victim was an extenuating circumstance.

I.

Defendant pled guilty to uttering a forged instrument pursuant to a plea agreement and a Bill of Information which was signed by the prosecutor. Neither defendant nor his attorney signed the waiver of a Bill of Indictment attached to the Bill of Information, and the indictment issued against defendant alleged forgery. Defendant argues, therefore, that the court was without jurisdiction to accept the guilty plea and to enter judgment because he never formally waived his right to an indictment, and an indictment for forgery does not support a plea to uttering. We agree.

Article I, section 12, of the North Carolina Constitution requires an indictment, unless waived, for all criminal actions originating in Superior Court. See State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968). N.C.G.S. § 15A-642(c) provides:

Waiver of indictment must be in writing and signed by the defendant and his attorney. The waiver must be attached to or executed upon the bill of information.

In the instant case, we cannot conclude that defendant waived his right to an indictment because the waiver form was not signed by either defendant or his counsel pursuant to the statutory mandate. Although defendant was indicted for forgery, forgery is an offense distinct from that of uttering, such that an indictment for one will not support a plea of guilty to the other. See State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22 (1968). Thus, defendant was not indicted for uttering and did not formally waive his right to an indictment of this offencse.North Carolina law has long provided that "[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court acquires no jurisdiction whatever, and if it assumes jurisdiction a trial and conviction are a nullity." McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17-18 (1966). See also State v. Stokes, supra. In McClure, our Supreme Court vacated an order sentencing defendant to imprisonment where he was indicted with unlawfully, wilfully and feloniously carnally knowing a female child over twelve and under sixteen years of age, but entered a plea of guilty to an assault with intent to commit rape. The Court held that "there was no formal and sufficient accusation against him for the offense to which he pleaded guilty" so that the sentence of imprisonment violated defendant's constitutional rights. Id. at 215, 148 S.E.2d at 18. "[A] plea of guilty standing alone does not waive a jurisdictional defect." State v. Stokes, 274 N.C. at 412, 163 S.E.2d at 772.

In the case before us, the absence of a sufficient accusation or a formal waiver of indictment deprived the trial court of jurisdiction to accept defendant's plea and to enter judgment. Thus, defendant's plea and the court's judgment with regard to the charge of uttering must be vacated. The trial court is not precluded, however, from proceeding against defendant on a legally sufficient indictment for uttering. See State v. Stokes, supra. Additionally, by vacating defendant's guilty plea to uttering, which was entered pursuant to the State's agreement to dismiss the forgery charge, this portion of the agreement is nullified and the indictment alleging forgery survives.

II.

In defendant's second assignment of error, he alleges that the sentencing court erred in failing to find as a mitigating factor that the relationship between defendant and victim was an extenuating circumstance under N.C.G.S. § 15A-1340.4(a)(2)i, insofar as his actions towards Ms. Penny were a result of misguided love. We disagree.

N.C.G.S. § 15A-1340.4(a)(2)i provides for a statutory mitigating factor where "[t]he defendant acted under strong provocation, or the relationship between the defendant and the victim was otherwise extenuating." This Court has interpreted the second prong of this factor, which is relevant here, and concluded that, "[t]here is nothing on the face of the statute to indicate that our legislature meant to provide shorter prison terms for defendants motivated by jealousy or rage." State v. Puckett, 66 N.C.App. 600, 606, 312 S.E.2d 207, 211 (1984). The statute was meant to apply under "circumstances that morally shift part of the fault for a crime from the criminal to the victim" but not "to make homicides of spouses or relatives ... less deserving of punishment than those of others." State v. Martin, 68 N.C.App. 272, 276, 314 S.E.2d 805, 807 (1984).

In the instant case, defendant does not dispute the facts but contends the severity of his crime is lessened because his actions were due to distress over the breakup of his relationship with the victim. However, in accordance with other decisions of this Court, we decline to extend this mitigating factor to cases such as the one at bar, and there is no evidence to support a finding that defendant's assault is less culpable. Even if the facts in this case might support the mitigating factor of the existence of an extenuating relationship, defendant has not presented credible, uncontradicted evidence to this effect. We cannot conclude, therefore, that the trial court committed reversible error in failing to find that the relationship between defendant and the victim was an extenuating circumstance and a mitigating factor pursuant to N.C.G.S. § 15A-1340.4(a)(2)i. See State v. Seagroves, 78 N.C.App. 49, 336 S.E.2d 684 (1985), disc. review denied, 316 N.C. 384, 342 S.E.2d 905 (1986).

VACATED AS TO THE FIRST COUNT. NO ERROR AS TO THE SECOND COUNT.

GREENE and WYNN, JJ., concur.