State v. Armstrong , 248 N.C. App. 65 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-1324
Filed: 21 June 2016
Nash County, Nos. 13 CRS 54783-84
STATE OF NORTH CAROLINA, Plaintiff,
v.
ARTHUR ORLANDUS ARMSTRONG, Defendant.
Appeal by Defendant from judgment entered 20 May 2015 by Judge Alma L.
Hinton in Nash County Superior Court. Heard in the Court of Appeals 27 April 2016.
Attorney General Roy Cooper, by Assistant Attorney General David L. Gore, III,
for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for Defendant-Appellant.
HUNTER, JR. Robert N., Judge.
Arthur Orlandus Armstrong (“Defendant”) appeals from a jury’s verdict
convicting him of misdemeanor driving while license revoked and finding him
responsible for speeding. Defendant contends the superior court did not retain
subject matter jurisdiction over the misdemeanor offense and the infraction after the
State dismissed the felony charge before trial. We agree. As a result, we vacate the
convictions and judgment of the superior court.
I. Factual and Procedural History
STATE V. ARMSTRONG
Opinion of the Court
On 12 January 2015, a grand jury indicted Defendant on three charges in three
separate indictments: habitual impaired driving, driving while license revoked
(“DWLR”), and speeding. On 20 April 2015, the State dismissed the felony habitual
impaired driving charge following a report from the State Crime Laboratory showing
Defendant’s blood-alcohol concentration (“BAC”) was 0.00 when Trooper Michael
Davidson stopped him. The trial for misdemeanor DWLR and the infraction of
speeding began in superior court on 19 May 2015. The State presented one witness,
Trooper Davidson of the North Carolina Highway Patrol.
On 2 November 2013, Trooper Davidson patrolled the area near North
Carolina Highway 97 around 2:00 a.m. While stopped at an intersection, he observed
a vehicle that “appeared [to be] speeding” traveling east on N.C. 97. He followed the
vehicle, using radar and a pace check to obtain its speed. He noted the radar reading,
72 miles per hour in a 55 mile per hour zone. The vehicle “crossed the center line and
touched the fog-line” of the highway. Trooper Davidson then activated his lights and
siren, and stopped the vehicle at a nearby gas station.
Trooper Davidson asked Defendant to produce his license and registration.
Defendant did not produce a license or registration for the vehicle. Defendant stated
“he was in the process of getting his license back. That there was an error, but he
thought his license was valid.” Defendant exited his vehicle and sat in the passenger
seat of Trooper Davidson’s patrol car. Defendant provided Trooper Davidson with his
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STATE V. ARMSTRONG
Opinion of the Court
name, address, and date of birth for Trooper Davidson to search Defendant’s license
information in Trooper Davidson’s on-board computer.
Trooper Davidson charged Defendant with speeding and DWLR. Trooper
Davidson “thought [he] smelled a little bit of alcohol coming from [Defendant].”
Trooper Davidson charged Defendant with driving while impaired (“DWI”).
The State rested its case. Defendant moved to dismiss the charge of DWLR,
which the court denied. The defense did not present any evidence. Defendant
renewed his motion to dismiss, which the court again denied. Neither the State nor
the Defendant raised any jurisdictional issues at trial. The jury returned a verdict of
guilty of DWLR and found Defendant responsible of speeding. The superior court
sentenced Defendant to 120 days active confinement. Defendant timely gave oral and
written notice of appeal.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b), which
provides for an appeal of right to the Court of Appeals from any final judgment of a
superior court.
III. Standard of Review
An argument regarding subject matter jurisdiction may be raised at any time,
including on appeal. See In Re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006).
“Whether a trial court has subject-matter jurisdiction is a question of law, reviewed
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STATE V. ARMSTRONG
Opinion of the Court
de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E. 2d 590,592
(2010). Even if a party did not object to it at trial, they may contest jurisdiction. See
Pulley v. Pulley, 255 N.C. 423, 429, 121 S.E.2d 876, 880 (1961).
IV. Analysis
Generally, once jurisdiction of a court attaches, a subsequent event will not
undo jurisdiction, even if the subsequent event would have prevented jurisdiction
from attaching in the first place. In Re Peoples, 296 N.C. 109, 146, 250 S.E.2d 890,
911 (1978). “Jurisdiction is not a light bulb which can be turned off or on during the
course of the trial. Id. (quoting Silver Surprize, Inc. v. Sunshine Mining Co., 74 Wash.
2d 519, 523, 445 P.2d 334, 336-37 (1968)).
“Subject matter jurisdiction is conferred upon the courts by either the North
Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353
S.E.2d 673, 675 (1987). In criminal cases, the State bears the burden 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).
A defendant may raise the question of subject matter jurisdiction at any time,
including on appeal. Id.
In 1961, the General Assembly enacted House Bill 104, entitled “An Act to
Amend the Constitution of North Carolina by Rewriting Article IV Thereof and
Making Appropriate Amendments of Other Articles so as to Improve the
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STATE V. ARMSTRONG
Opinion of the Court
Administration of Justice in North Carolina.” 1961 N.C. Sess. Laws 436. This
constitutional amendment, ratified by the People on 6 November 1962, provides, in
pertinent part:
(3) Superior Court. Except as otherwise provided by the
General Assembly, the Superior Court shall have original
general jurisdiction throughout the State. The Clerks of
Superior Court shall have such jurisdiction and powers as
the General Assembly shall prescribe by general law
uniformly applicable in every county of the State.
(4) District Courts; Magistrates. The General Assembly
shall, by general law uniformly applicable in every local
court district of the State, prescribe the jurisdiction and
powers of the District Courts and Magistrates.
N.C. Const. art. IV §12(3-4).
In 1965, pursuant to the rewritten Article IV, the General Assembly enacted
House Bill 202, entitled “An Act to Implement Article IV of the Constitution of North
Carolina by Providing for a New Chapter of the General Statutes of North Carolina,
to be Known as ‘Chapter 7A-Judicial Department’, and for Other Purposes.” 1965
N.C. Sess. Laws 369. These statutes now provide, in pertinent part:
§7A-271. Jurisdiction of Superior Court.
(a) The superior court has exclusive, original jurisdiction
over all criminal actions not assigned to the district court
division by this Article, except that the superior court has
jurisdiction to try a misdemeanor:
(1) Which is a lesser included offense of a felony on
which an indictment has been returned, or a felony
information as to which an indictment has been properly
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STATE V. ARMSTRONG
Opinion of the Court
waived; or
(2) When the charge is initiated by presentment; or
(3) Which may be properly consolidated for trial with
a felony under G.S. 15A-926;
(4) To which a plea of guilty or nolo contendere is
tendered in lieu of a felony charge; or
(5) When a misdemeanor conviction is appealed to
the superior court for trial de novo, to accept a guilty plea
to a lesser included or related charge.
...
(c) When a district court is established in a district, any
superior court judge presiding over a criminal session of
court shall order transferred to the district court any
pending misdemeanor which does not fall within the
provisions of subsection (a), and which is not pending in the
superior court on appeal from a lower court.
§7A-272. Jurisdiction of district court; concurrent
jurisdiction in guilty or no contest pleas for certain felony
offenses; appellate and appropriate relief procedures
available.
(a) Except as provided in this Article, the district court has
exclusive, original jurisdiction for the trial of criminal
actions, including municipal ordinance violations, below
the grade of felony, and the same are hereby declared to be
petty misdemeanors.
N.C. Gen. Stat. §7A-271(a), (c), 272(a) (2015).
North Carolina superior courts have jurisdiction to try a misdemeanor “[w]hich
may be properly consolidated for trial with a felony under G.S. 15A-926.” N.C. Gen.
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STATE V. ARMSTRONG
Opinion of the Court
Stat. §7A-271(a)(3) (2015). Two or more offenses, “whether felonies or misdemeanors
or both,” may “be joined in one pleading or for trial when the offenses . . . are based
on the same act or transaction or on a series of acts or transactions connected together
or constituting parts of a single scheme or plan.” N.C. Gen. Stat. §15A-926(a) (2015).
For example, in State v. Pergerson, a grand jury indicted a defendant and he
stood trial for larceny of an automobile (a felony) and unlawful operation of a vehicle
(a misdemeanor) in superior court. 73 N.C. App. 286, 287, 326 S.E.2d 336, 337 (1985).
At the close of the State’s evidence, the court dismissed the felony larceny charge. Id.
This Court held the superior court retained jurisdiction over the misdemeanor charge
after the felony charge had been dismissed, as “[c]learly, the two offenses . . . were
based on the same act or transaction.” Id. at 289, 326 S.E. 2d at 338. The superior
court had jurisdiction at the time the case went to trial because the State properly
joined the felony offense with the misdemeanor offense. The critical fact in Pergerson
was the superior court properly had jurisdiction at the time of trial. This follows the
general principle of invocation of jurisdiction, as the superior court had jurisdiction
at the time the case proceeded to trial and jurisdiction existed throughout the
duration of the trial.
In contrast, in State v. Wall, the superior court accepted a defendant’s plea of
guilty to two misdemeanor charges. 271 N.C. 675, 677, 157 S.E.2d 363, 365 (1967).
The grand jury did not indict the defendant on any felony charge. The Supreme Court
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STATE V. ARMSTRONG
Opinion of the Court
held the “superior court was without jurisdiction to proceed to trial on
[the] . . . indictments.” Id. at 368, 157 S.E. 2d at 682. (emphasis added). The superior
court was without jurisdiction to proceed to trial because “[p]resently, defendant is
under indictment for misdemeanors.” Id. As a result, jurisdictional status hinges
upon the circumstances as they exist at the time a case is to “proceed to trial.” Id.
Once established, jurisdiction cannot be taken away.
With regard to infractions, including speeding, N.C. Gen. Stat. §7A-271(d)
provides a superior court has jurisdiction over an infraction in two instances. First,
a superior court has jurisdiction when the infraction is a lesser-included offense of a
“criminal action properly before the court.” N.C. Gen. Stat. §7A-271(d)(1) (2015). The
second instance is when the infraction is a lesser-included offense of a “criminal
action properly before the court, or . . . a related charge.” A superior court has
jurisdiction to accept an admission of responsibility for the infraction. N.C. Gen. Stat.
§7A-271(d)(2) (2015).
N.C. Gen. Stat. §7A-271(c) establishes the procedure for trial court judges to
follow when the superior court does not have subject matter jurisdiction over a
pending case pursuant to N.C. Gen. Stat. §7A-271(a):
When a district court is established in a district, any
superior court judge presiding over a criminal session of
court shall order transferred to the district court any
pending misdemeanor which does not fall within the
provisions of subsection (a), and which is not pending in the
superior court on appeal from a lower court.
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STATE V. ARMSTRONG
Opinion of the Court
N.C. Gen. Stat §7A-271(c) (2015). (emphasis added). The transfer of a matter not
properly before a superior court is not a decision that rests within the discretion of a
superior court judge. On the contrary, the statute requires a superior court judge
“shall order” pending cases without subject matter jurisdiction to be transferred to
the district court. Before a case proceeds to trial, a superior court judge must transfer
to the appropriate court a pending matter which is not properly before the superior
court. Id.
“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.” State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d
708, 711 (1981). Where a trial court lacks jurisdiction to allow a conviction, the
appropriate remedy is to vacate the judgment of the trial court. See State v. Partridge,
157 N.C. App. 568, 571, 579 S.E.2d 398, 400 (2003).
Here, Defendant contends the superior court lacked jurisdiction to try him on
the misdemeanor DWLR charge and the infraction of speeding. Defendant argues
his case presents none of the exceptions listed in N.C. Gen. Stat. §7A-271 in which a
superior court has jurisdiction to try a misdemeanor or an infraction. He argues N.C.
Gen. Stat. §7A-271(c) directs a superior court in this situation to transfer the matter
to the appropriate district court. Defendant asks us to vacate the judgment of the
superior court. We are persuaded by Defendant’s arguments.
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STATE V. ARMSTRONG
Opinion of the Court
The grand jury issued three indictments charging Defendant with three
offenses: a felony, a misdemeanor, and an infraction. The State properly joined the
three offenses for trial under N.C. Gen. Stat. 15A-926, as the offenses were part of
the same act, specifically Defendant’s operation of the motor vehicle on 2 November
2013. Had the case gone to trial at this point, the superior court would have had
jurisdiction over the misdemeanor and the infraction. However, the State dismissed
the felony charge of habitual impaired driving on 20 April 2015. At the time the case
proceeded to trial in superior court, only a misdemeanor and an infraction remained.
Without the felony offense, the misdemeanor fell under none of the exceptions in N.C.
Gen. Stat. §7A-271(a), and the infraction fell under none of the exceptions in N.C.
Gen. Stat. 7A-271(d). Thus, under N.C. Gen. Stat. §7A-271(c), once the felony was
dismissed prior to trial, the court should have “transferred” the two remaining
charges to the district court.
The record here shows after dismissal of the felony the superior court lacked
jurisdiction over the misdemeanor and the infraction. We hold the superior court did
not properly have subject matter jurisdiction in this case.
V. Conclusion
We vacate the judgment of the superior court.
VACATED.
Judges CALABRIA and TYSON concur.
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