State v. Blalock ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-712
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2013
STATE OF NORTH CAROLINA
v. Stokes County
Nos. 08CRS50460; 51385-86;
JENNIFER SHELTON BLALOCK, 08CRS52513-14; 12CRS050942-43;
Defendant. 12CRS051294
On writ of certiorari to review Judgments entered on or
about 25 February 2013 by Judge Anderson D. Cromer in Superior
Court, Stokes County. Heard in the Court of Appeals 19 November
2013.
Attorney General Roy A. Cooper, III by Assistant Attorney
General Josephine N. Tetteh, for the State.
Edward Eldred, for defendant-appellant.
STROUD, Judge.
Jennifer Blalock (“defendant”) appeals from judgments
entered on or about 25 February 2013 revoking her probation and
activating her sentence in several 2008 offenses, and, pursuant
to a plea agreement, imposing sentence for eight offenses
committed in 2012. We vacate in part and affirm in part.
I. Background
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On 8 December 2008, defendant was indicted in Stokes County
on two counts of maintaining a vehicle for the purpose of
keeping and selling controlled substances. She was also charged
with several worthless check offenses. Defendant pled guilty to
two counts of maintaining a vehicle for the purpose of keeping
and selling drugs and three worthless check charges. On 20 April
2009, the trial court sentenced her to two consecutive terms of
6-8 months imprisonment, suspended for 36 months. On 1 June
2012, defendant’s probation officer filed two violation reports
alleging that defendant had violated probation by failing to pay
required fees and by committing a new criminal offense. After a
hearing, the trial court found that defendant had violated the
terms of her probation and activated her sentence on 25 February
2013.
On 31 May 2012, defendant was charged with five misdemeanor
offenses in two arrest warrants. In the first, she was charged
with larceny of three catalytic converters from Charles
Hendrick, the possession of those stolen goods, and conspiracy
to steal those goods. In the second, she was charged with
misdemeanor larceny of four bus batteries owned by Mike Fulp and
possession of those stolen batteries. She was also charged by
information with the felonious breaking or entering of Mr.
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Fulp’s bus. Defendant signed a waiver consenting to be tried on
the information. Defendant was also indicted for breaking and
entering a residence, felony larceny, and felony possession of
stolen goods.
Defendant pled not guilty to the misdemeanor charges and
was tried in district court. The district court found her guilty
of all charges. Defendant appealed to superior court for trial
de novo. In superior court, pursuant to a plea agreement, she
entered an Alford guilty plea to two counts of misdemeanor
larceny, two counts of possession of stolen goods, breaking or
entering a motor vehicle, felony breaking and entering, and
felony larceny. As part of her plea, she admitted that there
are facts to support her plea. In addition, the State offered a
brief statement of facts to support the plea.
On 25 February 2013, the trial court consolidated the
charges into two judgments, arrested judgment on the possession
of stolen property charges, and sentenced defendant to two
consecutive terms of 8-19 months imprisonment. Defendant filed
written notice of appeal on 6 March 2013.
II. Petition for Writ of Certiorari
Defendant concedes that her notice of appeal is faulty in
that it fails to identify the judgments from which appeal is
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taken, the court to which she appeals the judgments, and fails
to show that the notice was properly served on the State.
Additionally, her appeal from the judgments entered upon the
2012 convictions solely concerns the adequacy of the factual
basis underlying her guilty plea. She has no statutory right to
appeal this issue. See State v. Keller, 198 N.C. App. 639, 641,
680 S.E.2d 212, 213 (2009).
As a result, defendant filed a petition for writ of
certiorari to permit review of the trial court’s judgments
revoking her probation and activating her sentences from the
2009 convictions, as well as the judgments entered pursuant to
her pleas of guilty in 2012. Although the State does not oppose
issuance of the writ of certiorari to address the probation
issues, it contends that we are not permitted to issue a writ of
certiorari to review defendant’s challenge to the sufficiency of
the factual basis for her guilty plea. The State ignores that in
State v. Keller and State v. Poore, we held that we may review a
challenge to the sufficiency of the factual basis underlying a
guilty plea pursuant to a writ of certiorari. Keller, 198 N.C.
App. at 641, 680 S.E.2d at 213 (“Although defendant is not
entitled to appeal from his guilty plea as a matter of right,
his arguments are reviewable pursuant to a petition for writ of
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certiorari.”); State v. Poore, 172 N.C. App. 839, 841, 616
S.E.2d 639, 640 (2005) (allowing a petition for certiorari to
review a challenge to the factual basis of a guilty plea); see
also State v. Rhodes, 163 N.C. App. 191, 193, 592 S.E.2d 731,
732 (2004) (“Under Bolinger, defendant in this case is not
entitled to appeal from his guilty plea as a matter of right,
but his arguments may be reviewed pursuant to a petition for
writ of certiorari.”), and State v. Carriker, 180 N.C. App. 470,
471, 637 S.E.2d 557, 558 (2006) (noting that defendant seeking
to challenge the procedures of their guilty pleas must do so by
petitioning for a writ of certiorari). Therefore, in our
discretion, we allow defendant’s petition for writ of certiorari
and proceed to consider the merits of her appeal.
III. Probation Revocation
Defendant argues, and the State properly concedes, that the
trial court did not have jurisdiction to revoke her probation.
Defendant was sentenced to 36 months of supervised probation on
20 April 2009. Therefore, defendant’s probation expired on 20
April 2012. The probation violation report at issue was not
filed until 1 June 2012. There is no evidence in the record that
the probationary term had been previously extended or that the
State timely filed “a written violation report with the clerk
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indicating its intent to conduct a hearing on one or more
violations of one or more conditions of probation.” N.C. Gen.
Stat. § 15A-1344(f)(1) (2011). Therefore, the trial court did
not have jurisdiction to revoke defendant’s probation. State v.
Black, 197 N.C. App. 373, 377, 677 S.E.2d 199, 202 (2009).
Accordingly, we vacate the judgments entered upon the trial
court’s revocation of defendant’s probation. See State v.
Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981).
IV. Factual Basis
On appeal, defendant contends that there was an
insufficient factual basis for the trial court to determine that
she was, in fact, guilty because “the State did not identify
anyone as the perpetrator of the offenses against ‘Mike Fulp,’
and the State did not identify defendant as the perpetrator of
the offenses against ‘Charles Hedrick.’” (original in all caps)
Defendant further argues that there was no evidence that the
batteries belonged to Mr. Fulp or that she conspired to steal
from Mr. Hedrick. Defendant does not challenge the sufficiency
of the factual basis underlying the other felony convictions,
nor the sufficiency of the factual basis as to any other element
of the challenged misdemeanors. Therefore, any such arguments
are deemed abandoned. N.C.R. App. P. 28(a).
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“A plea of guilty or no contest is improperly accepted
unless the trial judge has first determined that there is a
factual basis for the plea.” State v. Dickens, 299 N.C. 76, 79,
261 S.E.2d 183, 185 (1979).
This determination may be based upon
information including but not limited to:
(1) A statement of the facts by the
prosecutor.
(2) A written statement of the defendant.
(3) An examination of the presentence
report.
(4) Sworn testimony, which may include
reliable hearsay.
(5) A statement of facts by the defense
counsel.
N.C. Gen. Stat. § 15A-1022(c) (2011).
The quoted statute does not require the
trial judge to elicit evidence from each,
any or all of the enumerated sources. Those
sources are not exclusive because the
statute specifically so provides. The trial
judge may consider any information properly
brought to his attention in determining
whether there is a factual basis for a plea
of guilty or no contest.
Dickens, 299 N.C. at 79, 261 S.E.2d at 185-86.
Our Supreme Court has previously determined that there was
a sufficient factual basis to sustain a guilty plea where the
defendant had previously been convicted in district court,
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appealed to superior court, where he pled guilty, and admitted
that he was, in fact, guilty during his plea colloquy in
superior court. See id. at 80-82, 261 S.E.2d at 186-87. Nine
months after its opinion in Dickens, the Supreme Court issued
its opinion in State v. Sinclair, 301 N.C. 193, 270 S.E.2d 418(1980), where it overturned a guilty plea for an insufficient
factual basis. In Sinclair, the Supreme Court distinguished the
facts under consideration from those in Dickens:
In State v. Dickens, . . . we relied on the
fact, appearing of record, that defendant
had been duly convicted in the district
court on the very charges to which he
entered pleas of guilty in superior court in
addition to his statement in his transcript
that he was “in fact” guilty to support our
conclusion that a factual basis for the plea
existed in the record.
Sinclair, 301 N.C. at 199, 270 S.E.2d at 422.
Here, defendant pled not guilty, was tried, and convicted
in district court on all of the challenged misdemeanor charges,
including the misdemeanor conspiracy charge. The district
court’s judgments appear in the record. She then appealed to
superior court for trial de novo. In superior court, she pled
guilty pursuant to a plea agreement. She did not admit that she
was in fact guilty, but the State offered the following
statement of facts:
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Your Honor, back in the spring of last year
these defendants, along with a Jason
Barneycastle, who is also on the docket and
is represented by Mr. DeHart, joined in a
breaking and entering of a home belonging to
James Lackey on Snow Hill Church Road in
Lawsonville, where an air compressor, a pipe
bender, and other assorted scrap metal was
stolen from his residence, that had a value
of $2,310. The following week, between the
dates of April 1 and April 9 the defendant
stole from Charles Hendrick (phonetic) three
catalytic converters valued at $900. . . .
And finally, from April 20 to April 23rd
there was a break-in of a yellow school bus
owned by Mike Fulp and four school bus
batteries were stolen valued at $740. That’s
the evidence for the State.
Although this statement of facts is fairly vague, we
conclude that this summary of the facts, coupled with the
district court convictions that appear in the record, is a
sufficient factual basis to identify defendant as the
perpetrator of the charged offenses and to sustain defendant’s
guilty plea. Accordingly, we hold that the trial court did not
err in accepting the guilty plea.
V. Conclusion
In summary, the trial court lacked jurisdiction to activate
defendant’s sentence and impose the judgments entered in
response to defendant’s admitted violations of probation because
the violation reports were not filed before the expiration of
defendant’s period of probation. Therefore, we vacate those
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judgments. The trial court did not err, however, in accepting
defendant’s guilty plea to the 2012 offenses because there was a
sufficient factual basis for the court to accept such a plea.
08CRS52513-14, 08CRS51385-86, and 08CRS50460—VACATED.
12CRS050942-43, 12CRS051294— AFFIRMED.
Judges MCGEE and BRYANT concur.
Report per Rule 30(e).