State v. Johnson ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1206
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Cumberland County
No. 11 CRS 66293
JEROME KEITH JOHNSON
Appeal by defendant from judgment entered 6 June 2013 by
Judge Claire V. Hill in Cumberland County Superior Court. Heard
in the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Parker, for the State.
Irons & Irons, P.A., by Ben G. Irons, II, for defendant-
appellant.
ELMORE, Judge.
Jerome Keith Johnson (“defendant”) appeals from judgment
entered after he pled guilty, pursuant to Alford, to misdemeanor
maintaining a dwelling for controlled substances. Defendant was
sentenced to a suspended term of 30 days imprisonment and placed
on 12 months of supervised probation. Defendant argues that
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there was an insufficient factual basis to support his Alford
plea. For the reasons discussed herein, we affirm.
Defendant entered a pro se notice of appeal. Defendant
acknowledges that the pro se notice of appeal violates Rule 4 of
the North Carolina Rules of Appellate Procedure because it
failed to note the court to which the appeal was taken, was
unsigned, and there was no proof of service on the State. “A
failure on the part of the appealing party to comply with Rule 4
deprives this Court of jurisdiction to consider his or her
appeal[.]” State v. Hughes, 210 N.C. App. 482, 484, 707 S.E.2d
777, 778 (2011). Furthermore, defendant acknowledges that he
does not have an appeal as a matter of right to challenge the
trial court’s acceptance of his guilty plea. See N.C. Gen.
Stat. § 15A-1444 (2013) (listing the issues that a defendant who
has entered a plea of guilty or no contest is entitled to appeal
as a matter of right). We therefore grant the State’s motion to
dismiss defendant’s appeal.
Pursuant to N.C. Gen. Stat. § 15A-1444(e) and Rule 21 of
the North Carolina Rules of Appellate Procedure, defendant seeks
issuance of this Court’s writ of certiorari to invoke
jurisdiction to review his argument regarding the sufficiency of
the factual basis to support his plea. In our discretion, we
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grant certiorari to review defendant’s argument. See State v.
Demaio, ___ N.C. App. ___, ___, 716 S.E.2d 863, 866 (2011)
(granting certiorari to review whether the trial court erred in
accepting the defendant’s guilty plea).
Defendant contends that the trial court erred by
determining there to be a factual basis in support of his Alford
plea because the State failed to show that defendant knew about
the controlled substances in his house or being sold from his
house. Defendant further contends that the State made no
attempt to establish that he actually possessed or had
constructive possession of cocaine. We disagree.
“The judge may not accept a plea of guilty or no contest
without first determining that there is a factual basis for the
plea.” N.C. Gen. Stat. § 15A-1022(c) (2013). The determination
that there is a factual basis to support a plea may be based
upon “[a] statement of the facts by the prosecutor.” Id.
There are . . . two theories under which the
State may prosecute a defendant under
N.C.G.S. § 90-108(a)(7). Under the first
statutory alternative the State must prove
that the defendant did (1) knowingly (2)
keep or maintain (3) a [dwelling] (4) which
is resorted to (5) by persons unlawfully
using controlled substances (6) for the
purpose of using controlled substances.
Under the second statutory alternative, the
State must prove that the defendant did (1)
knowingly (2) keep or maintain (3) a
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[dwelling] (4) which is used for the keeping
or selling (5) of controlled substances.
State v. Mitchell, 336 N.C. 22, 31, 442 S.E.2d 24, 29 (1994).
Factors which may be taken into
consideration in determining whether a
person keeps or maintains a dwelling include
ownership of the property, occupancy of the
property, repairs to the property, payment
of utilities, payment of repairs, and
payment of rent. Since none of the factors
is dispositive, the determination will
depend on the totality of the circumstances.
State v. Baldwin, 161 N.C. App. 382, 393, 588 S.E.2d 497, 506
(2003) (citations omitted).
Here, the prosecutor made the following statement
summarizing the evidence at defendant’s plea hearing:
On December 19th of 2011, Officer Franklin,
with the Fayetteville Police Department,
conducted a search warrant at 425 Chadham
Street, after conducting a controlled
purchase and a [indiscernible] inspection.
Upon execution of the search warrant, they
located, in the defendant’s bedroom, .5
grams of cocaine and three individuals
locks, a dog bowl with cocaine residue on it
from coc -- cutting cocaine, a digital scale
used to weigh cocaine, a razor blade used to
cut cocaine, torn baggies for packaging and
repacking cocaine -- used for --
[indiscernible] used to store cocaine, mail
addressed to the defendant proving his
residency at that address and $190 in small
increments. To give some more background,
there had been a CI sent in who had said
that there could be drugs bought from that
address. The CI went in on one day. The
officer observed it -- going to the door. I
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don’t believe there’s any indication of who
they saw answer the door; and, she went in
and bought -- the CI went in and bought
narcotics, then came out. They attempted to
do another buy on a different day; but, when
they searched the CI, the CI did buy
cocaine, but then also tried to conceal
cocaine in a chap stick holder; and, so,
after having the one purchase, where they
did not find additional cocaine hidden on
the CI, they decided to do an
[indiscernible] from the curbside. They did
do that; but, primarily, it appeared to be
baggie corners that were collected; and, I
don’t think there was an indication of who
the CI had actually purchased from, but we
could confirm that this was his address, as
he was listed on mail that had come from
there; and, that’s why we ended up with this
plea. Thank you.
The prosecutor’s summary above contains the 1.) appropriate
facts necessary to prosecute defendant under N.C. Gen. Stat. §
90-108(a)(7) and 2.) factors set forth in Mitchell, supra.Furthermore, defendant did not correct or add anything further
to the prosecutor’s summary. Thus, the trial court correctly
found that there was a factual basis for the plea.
Moreover, we cannot agree with defendant’s contention that
the State made no attempt to establish that defendant actually
possessed or had constructive possession of cocaine.
An accused’s possession of narcotics may be
actual or constructive. He has possession of
the contraband material within the meaning
of the law when he has both the power and
intent to control its disposition or use.
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Where such materials are found on the
premises under the control of an accused,
this fact, in and of itself, gives rise to
an inference of knowledge and possession[.]
State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). In
this case, there was confirmation that the home was defendant’s
residence. Also, the contraband, including cocaine, digital
scale, razor blade, and baggies were found in defendant’s
bedroom. We therefore conclude that the summary of the facts by
the prosecutor was sufficient to establish a factual basis for
defendant’s Alford plea to misdemeanor maintaining a dwelling
for controlled substances. Accordingly, we affirm.
Affirmed.
Judges McGee and Davis concur.
Report per Rule 30(e).