State v. Smith ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-742
    NORTH CAROLINA COURT OF APPEALS
    Filed: 4 February 2014
    STATE OF NORTH CAROLINA
    v.                                      Cabarrus County
    Nos. 09 CRS 7222-24, 704463,
    709818, 710308
    YOSHEIKA CHARMAINE SMITH
    Appeal by Defendant from judgment entered 7 March 2013 by
    Judge Tanya T. Wallace in Cabarrus County Superior Court. Heard
    in the Court of Appeals 21 November 2013.
    Attorney General Roy Cooper, by Assistant Attorney General
    Thomas E. Kelly, for the State.
    Amanda S. Zimmer for Defendant.
    STEPHENS, Judge.
    I. Procedural History and Evidence
    This      appeal    arises    from    the    revocation       of   Defendant
    Yosheika     Charmaine      Smith’s      probation.     On     24   August     2009,
    Defendant       was   indicted     for   possession     with    intent    to    sell
    cocaine (two counts), selling cocaine, delivering cocaine, and
    selling    or    delivering      cocaine   near   a   playground.        Following
    -2-
    Defendant’s 24 February 2011 Alford plea to the aforementioned
    charges and to three counts of driving with a revoked license,
    the trial court entered a consolidated judgment which imposed a
    suspended prison sentence of 29 to 44 months.                         As a result,
    Defendant was placed on supervised probation for 24 months.
    Less than five months later, Defendant’s probation officer
    filed   a   report     alleging      that       Defendant   had   violated        four
    conditions of her probation.              On 1 December 2011, after finding
    that Defendant committed three of the alleged violations, the
    trial   court     modified        Defendant’s      probation,     found     her     in
    contempt, and ordered her to serve a thirty-day jail sentence.
    Another violation report was filed on 28 November 2012,
    which alleged that Defendant was in arrears on her required
    court payments, failed to complete assigned community service,
    and had again been convicted of driving with a revoked license.
    Defendant admitted these violations at her 4 March 2013 hearing.
    After   finding      that    Defendant      had     “violated     her    supervised
    probation   in    each      and   every    way    cited[,]”     the     trial   court
    entered a 7 March 2013 judgment revoking Defendant’s probation
    and activating her suspended sentence of 29 to 44 months of
    -3-
    imprisonment.       From      the    7   March    2013      judgment    entered    upon
    revocation of her probation, Defendant appeals.1
    II. Discussion
    Defendant brings forward two arguments on appeal:                       (1) that
    the trial court lacked jurisdiction to revoke her probation for
    selling/delivering       cocaine         near    a        playground     because      the
    underlying indictment on that charge is fatally defective and
    (2) that the trial court abused its discretion by revoking her
    probation. As discussed herein, we vacate both the original and
    probation revocation judgments and remand for resentencing.
    Defendant argues that the trial court lacked jurisdiction
    to revoke her probation and activate her sentence on the charge
    of   selling/delivering        cocaine     near       a    playground    because      the
    indictment    for     that     offense     is     fatally        defective.    Because
    Defendant    attacks    the         validity     of       the   underlying    judgment
    against   her,   we    must    first     determine         whether     this   issue    is
    properly before us.
    1
    On 11 July 2013, Defendant filed a Motion for Appropriate
    Relief (“MAR”) in this Court, asking that her sentence for
    selling/delivering cocaine near a playground be vacated because
    the judgment on that charge was entered upon a defective
    indictment. As Defendant makes the same argument in her brief,
    we dismiss her motion and address the issue in this opinion.
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    Over    forty    years   ago,    in    State     v.    Noles,    a    defendant
    challenged the revocation of his probation by arguing that his
    guilty plea to the underlying offenses which formed the basis of
    the original judgment suspending his sentence was not entered
    understandingly       and   voluntarily.      
    12 N.C. App. 676
    ,     678,    
    184 S.E.2d 409
    , 410 (1971). This Court found that when a defendant
    appeals      from     an    order   activating        a     suspended       sentence,
    “inquiries are permissible only to determine [(1)] whether there
    is evidence to support a finding of a breach of the conditions
    of the suspension, or [(2)] whether the condition which has been
    broken is invalid because it is unreasonable or is imposed for
    an unreasonable length of time.” 
    Id.
     (citing State v. Caudle,
    
    276 N.C. 550
    , 553, 
    173 S.E.2d 778
    , 781 (1970)). As a result,
    this Court held that the defendant’s attempt to question “the
    validity of the original judgment where sentence was suspended
    on appeal from an order activating [his] sentence [constituted]
    an impermissible collateral attack.” 
    Id.
    More    recently,      this   Court    has     cited    the     general       rule
    enunciated in Noles to dismiss several appeals challenging the
    trial   court’s     jurisdiction      to    revoke    probation.       In    State    v.
    Long, the defendant appealed from revocation of his probation
    and   challenged      the   trial   court’s        jurisdiction       to    enter    the
    -5-
    original    judgment    by   arguing      that   “the   trial   court    lacked
    jurisdiction to accept his           [guilty]    plea and to suspend and
    later activate the sentences . . . because [he] was not indicted
    on these offenses and did not effectively waive                  the State’s
    responsibility to charge him by a bill of indictment.”                  __ N.C.
    App. __, __, 
    725 S.E.2d 71
    , 72, disc. review denied, 
    366 N.C. 227
    , 
    726 S.E.2d 836
     (2012). Applying Noles, this Court refused
    to reach the defendant’s argument, reasoning that
    [the] defendant could have appealed his 2
    July 2010 judgments as a matter of right or
    by petition in accordance with the procedures
    set forth in our statutes and appellate
    rules. However, because [the] defendant did
    not timely appeal by right or by petition
    from the 2 July 2010 judgments entered upon
    his guilty plea and only now attempts to
    attack these sentences imposed and suspended
    in 2010 in an appeal from the 7 March 2011
    judgments    revoking   his   probation,    we
    conclude, consistent with three decades of
    Court of Appeals[’] precedent, that this
    challenge is an impermissible collateral
    attack    on     the   original    judgments.
    Accordingly, this appeal must be dismissed.
    
    Id.
       at   __,   
    725 S.E.2d at 73
       (citations,    internal   quotation
    marks, and alterations omitted).
    In State v. Hunnicutt, the defendant argued that “the trial
    court lacked jurisdiction to revoke his probation in two of his
    cases because the indictments underlying those offenses [were]
    facially defective, and thus invalid.”            __ N.C. App. __, __, 740
    -6-
    S.E.2d 906, 909 (2013). The Court characterized the defendant’s
    jurisdictional challenge in the following manner:
    A valid bill of indictment is essential to
    the jurisdiction of the Superior Court to try
    an accused for a felony and have the jury
    determine his guilt or innocence, and to give
    authority to the court to render a valid
    judgment. However, while it is true that a
    defendant may challenge the jurisdiction of a
    trial court, such challenge may be made in
    the appellate division only if and when the
    case is properly pending before the appellate
    division. Thus, a defendant on appeal from an
    order revoking probation may not challenge
    his adjudication of guilt, as questioning the
    validity of the original judgment where
    sentence was suspended on appeal from an
    order   activating   the   sentence   is   an
    impermissible collateral attack.
    [The] defendant contends that a challenge to
    the validity of an indictment, and thus the
    subject matter jurisdiction of the trial
    court, is not subject to the foregoing
    analysis,   due   to  our   Supreme  Court’s
    longstanding observation that a challenge to
    an indictment may be made at any time, even
    if it was not contested in the trial court.
    State v. Wallace, 
    351 N.C. 481
    , 503, 
    528 S.E.2d 326
    , 341 (2000). However, we read
    Wallace and the other cases cited by [the]
    defendant as addressing the question of
    whether a challenge to an indictment must be
    preserved at the trial level in order to be
    raised on direct appeal. This is a different
    question than the one presented by the
    instant case, in which [the] defendant
    attempts to challenge the jurisdictional
    validity of an underlying judgment against
    him long after the time for perfection of an
    appeal of that judgment has expired.
    -7-
    
    Id.
     (some citations, internal quotation marks, some brackets,
    and ellipses omitted). Relying on Long and Noles, this Court
    held that the defendant’s “argument [was] not properly before
    [it] on appeal from a judgment revoking probation and activating
    his suspended sentences.” 
    Id.
     at __, 740 S.E.2d at 910.
    However, in a recent opinion marshaling the case law on
    collateral attacks on judgments in probation revocation appeals,
    a panel of this Court concluded that “Noles [was] applied in
    both    Long     and    Hunnicutt       in   a     manner   inconsistent        with       our
    Supreme Court precedent.” See State v. Pennell, __ N.C. App. __,
    __, 
    746 S.E.2d 431
    , 439, supersedeas and disc. review allowed,
    __ N.C. __, 
    748 S.E.2d 534
     (2013). The central issue in Pennell
    was    whether    the    defendant       could      challenge        the   trial     court’s
    jurisdiction       to    revoke     his      probation      on   grounds       that       “the
    underlying       indictment       for     his      conviction        of    larceny     after
    breaking or entering . . . was fatally defective.” 
    Id.
     at __,
    746 S.E.2d at 443. After a thorough discussion of the pertinent
    case law, the Pennell court held that a “[d]efendant may, on
    appeal from revocation of probation, attack the jurisdiction of
    the trial court, either directly or collaterally.” Id. at __,
    746    S.E.2d     at    441   (emphasis          added).    As   a    backdrop       to   its
    holding, the Court explained:
    -8-
    Both our Supreme Court and this Court, in
    opinions predating Long and Hunnicutt, have
    addressed issues concerning the jurisdiction
    of the trial court in appeals from probation
    revocation. . . . We are bound by precedent
    of our Supreme Court and, because this Court
    may not overrule its own opinions, we are
    also bound by the earlier opinions of this
    Court that conflict with Long and Hunnicutt.
    Id. (citations omitted).
    Pennell undertakes an exhaustive review and sound analysis
    of the “often contradictory” case law governing a defendant’s
    “appeal from revocation of probation[,]” and we see no need to
    repeat   that   discussion   here.   Id.     at   __,   746   S.E.2d       at   433.
    Furthermore, the challenge in the instant case, as in Pennell,
    is to the trial court’s jurisdiction to revoke probation when
    the underlying judgment was entered upon an allegedly fatally
    defective indictment. Accordingly, we conclude that Pennell and
    the precedent upon which it relies compel us to reach the merits
    of Defendant’s argument. See In re Appeal from Civil Penalty,
    
    324 N.C. 373
    , 384, 
    379 S.E.2d 30
    , 37 (1989) (“Where a panel of
    the Court of Appeals has decided the same issue, albeit in a
    different case, a subsequent panel of the same court is bound by
    that   precedent,   unless   it   has      been   overturned    by     a    higher
    court.”).
    -9-
    As     noted       above,    Defendant         argues    that     the       underlying
    indictment for her conviction of selling/delivering cocaine near
    a playground is fatally defective. At the time Defendant was
    charged, certain drug offenses committed on “property that is a
    public    park    or    within       1,000    feet   of     the   boundary        of    real
    property that is a public park” constituted Class E felonies.
    
    N.C. Gen. Stat. § 90-95
    (e)(10) (2007). Defendant contends that
    the indictment on this charge “fails to allege [that] the sale
    or delivery took place in a public park and fails [to name] the
    individual       to    which    the     controlled        substance    was       sold    or
    delivered.”       We agree that Defendant’s indictment on this charge
    was fatally defective.
    The     superior      court’s       jurisdiction        cannot     rest      upon     an
    invalid    indictment.         “[O]ur    Constitution        requires       a    bill     of
    indictment, unless waived, for all criminal actions originating
    in the Superior Court, and a valid bill is necessary to vest the
    court    with    authority      to    determine      the    question    of       guilt    or
    innocence.” State v. Bissette, 
    250 N.C. 514
    , 515, 
    108 S.E.2d 858
    , 859 (1959). It is well settled that an indictment for the
    sale or delivery of a controlled substance must name the person
    to whom the defendant allegedly sold or delivered the narcotics
    or, in the alternative, allege that the name of the person is
    -10-
    unknown. State v. Bennett, 
    280 N.C. 167
    , 168, 
    185 S.E.2d 147
    ,
    148 (1971); Bissette, 
    250 N.C. at 517
    , 
    108 S.E.2d at 861
     (“Where
    a sale is prohibited, it is necessary, for a conviction, to
    allege in the bill of indictment the name of the person to whom
    the sale was made or that his name is unknown, unless some
    statute eliminates that requirement.”).
    Here,   Defendant   was   charged   with   selling   or   delivering
    cocaine near a playground as follows:
    The Jurors for the State upon their oath
    present that on or about the date of the
    offense shown and in the county named above,
    the   defendant   named   above   unlawfully,
    willfully, and feloniously did commit an
    offense under North Carolina General Statute
    90-95(a)(1) of sell and deliver, a controlled
    substance Cocaine, within 1,000 feet of the
    real property boundary of Concord Chase
    Apartment’s play ground [sic].
    There is no indication in the indictment or the record as to
    whether the “Concord Chase Apartment’s play ground [sic]” is a
    public park under section 90-95(e)(10).2 However, we need not
    2
    A previous version of the statute provided that “[a]ny person
    21 years of age or older who commits an offense under G.S. 90–
    95(a)(1) on property that is a playground in a public park or
    within 300 feet of the boundary of real property that is a
    playground in a public park shall be punished as a Class E
    felon.” See 
    N.C. Gen. Stat. § 90-95
    (e)(10)(2005). The term
    “playground” was defined as “any outdoor facility . . . intended
    for recreation open to the public.” 
    Id.
     However, the General
    Assembly amended section 90–95(e)(10) to remove the word
    -11-
    make this determination. The indictment alleges neither the name
    of the person to whom Defendant allegedly sold cocaine nor that
    the name of the person is unknown. “Lacking either of these
    allegations,           the      indictment        [charging           Defendant           with
    selling/delivering            cocaine     near     a     playground]            is   fatally
    defective and cannot sustain the [underlying] judgment in this
    case.” State v. Long, 
    14 N.C. App. 508
    , 510, 
    188 S.E.2d 690
    , 691
    (1972).    Thus,       “[t]he    trial    court        [had]     no    jurisdiction        to
    convict    or    sentence       Defendant       for     [this]    .    .    .    charge[.]”
    Pennell, __ N.C. App. at __, 746 S.E.2d at 444. We therefore
    vacate the 24 February 2011 judgment which was entered upon
    Defendant’s      consolidated       convictions         and    remand       to    the   trial
    court    for    entry    of    judgment     and    resentencing            on    Defendant’s
    remaining convictions:            possession with intent to sell cocaine
    (two counts), selling cocaine, delivering cocaine, and driving
    with a revoked license (three counts). See State v. Wortham, 
    318 N.C. 669
    ,    674,    
    351 S.E.2d 294
    ,     297    (1987)       (“[W]e      think   the
    better procedure is to remand for resentencing when one or more
    but not all of the convictions consolidated for judgment has
    been vacated.”).
    “playground” and the sentence defining “playground.” See 2007
    N.C. Sess. Laws ch. 375, §§ 1-2.
    -12-
    Further,     we   must    also     vacate     the        judgment    revoking
    Defendant’s   probation.      A   “trial      judge     is    required    by    the
    Structured Sentencing Act to enter judgment on a sentence for
    the most serious offense in a consolidated judgment[.]”                    State
    v. Tucker, 
    357 N.C. 633
    , 637, 
    588 S.E.2d 853
    , 855 (2003); N.C.
    Gen. Stat. § 15A-1340.15(b) (2011) (“The judgment shall contain
    a sentence disposition specified for the class of offense and
    prior record level of the most serious offense, and its minimum
    sentence of imprisonment shall be within the ranges specified
    for that class of offense and prior record level[.]”).                     Here,
    Defendant’s    conviction     for     sell/deliver           cocaine     near    a
    playground pursuant to       
    N.C. Gen. Stat. § 90-95
    (e)(10)       was a
    Class E felony, the most serious offense of those consolidated
    for judgment by the trial court.            Thus, Defendant’s sentence was
    entered upon her conviction for sell/deliver near a playground,
    a conviction based upon a fatally flawed indictment.
    “A sentence based upon a conviction supported by a fatally
    defective indictment is a nullity and, therefore, not a valid
    sentence.”    Pennell, __ N.C. App. at __, 746 S.E.2d at 441.                    In
    turn,
    having   no  jurisdiction   to   convict   or
    sentence Defendant for this . . . charge,
    [the   trial  court]   was  equally   without
    jurisdiction  to   revoke  probation   on   a
    -13-
    conviction that did not legally exist, or to
    activate a sentence never legally imposed.
    Because the trial court lacked jurisdiction
    to activate any sentence imposed . . . ,
    activation of that sentence is also a
    nullity. Defendant cannot have violated the
    probation terms of a suspended sentence
    which was void. Accordingly, we also vacate
    the judgment revoking Defendant’s probation.
    Id. at __, 746 S.E.2d at 444.
    VACATED and REMANDED FOR RESENTENCING.
    Judges GEER and ERVIN concur.
    Report per Rule 30(e).