State v. Simmons , 258 N.C. App. 141 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1065-2
Filed: 20 February 2018
Surry County, Nos. 12 CRS 1110–11
STATE OF NORTH CAROLINA
v.
WALTER COLUMBUS SIMMONS
On certiorari review of judgment entered 16 May 2016 by Judge A. Moses
Massey in Surry County Superior Court. Originally heard in the Court of Appeals 5
April 2017. By opinion issued 15 August 2017, a unanimous panel of this Court
vacated in part the judgment of the trial court and remanded with instructions to
enter a modified judgment. By order dated 11 December 2017, the Supreme Court of
North Carolina remanded the case to the Court of Appeals for reconsideration in light
of its decision in State v. Brice, ___ N.C. ___, 806 S.E.2d 32 (2017), rev’g ___ N.C. App.
___, 786 S.E.2d 812 (2016).
Attorney General Joshua H. Stein, by Special Deputy Attorney General Creecy
C. Johnson, for the State.
The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-
appellant.
ELMORE, Judge.
On 16 May 2016, Walter Columbus Simmons (defendant) pled guilty to
aggravated felony death by vehicle (AFDV) and felony hit and run (FHR). The
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Opinion of the Court
judgment, however, inaccurately reflected that defendant pled guilty to felony serious
injury by vehicle instead of FHR. Defendant later petitioned this Court to issue a
writ of certiorari to review issues pertaining to his guilty plea. See State v. Simmons,
No. 16-1065, slip op. at 3 (N.C. App. Aug. 15, 2017) (unpublished). We deemed
meritorious only one of those issues, a jurisdictional challenge to the sufficiency of
the AFDV indictment, and the State conceded that indictment was fatally defective
under the authority of this Court’s decision in State v. Brice, ___ N.C. App. ___, 786
S.E.2d 812 (2016), rev’d, ___ N.C. ___, 806 S.E.2d 32 (2017). Id. slip op. at 4.
Accordingly, we allowed in part defendant’s petition for the limited purpose of
reviewing that sole issue and addressing the clerical error regarding the offenses to
which defendant pled guilty. Id. slip op. at 4–5.
In Brice, this Court held that the State’s failure to comply with N.C. Gen. Stat.
§ 15A-928’s special-pleading requirement—that is, when a prior conviction or
convictions constitute an element of a greater offense, that prior conviction or those
convictions must be listed on a special indictment or information, or in a separate
count—constituted a fatal jurisdictional defect. ___ N.C. App. at ___, 786 S.E.2d at
815 (citing State v. Williams, 153 N.C. App. 192, 568 S.E.2d 890 (2002), disc. rev.
improvidently allowed, 357 N.C. 45, 577 S.E.2d 618 (2003), and overruled by Brice,
___ N.C. at ___ n.4, 806 S.E.2d at 40 n.4). The Brice panel thus vacated the
defendant’s habitual misdemeanor larceny conviction and remanded for entry of a
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Opinion of the Court
judgment and resentencing on the lesser offense of misdemeanor larceny. Id. Here,
the State similarly violated N.C. Gen. Stat. § 15A-928 by including a prior conviction
of driving while impaired, an element of AFDV, on defendant’s AFDV indictment.
Simmons, slip op. at 4. Accordingly, under Brice, we vacated defendant’s AFDV
conviction and remanded for entry of a judgment and resentencing on the lesser
offense of felony death by vehicle (FDV). Id. slip op. at 4. We also instructed the trial
court on remand to correct a clerical error in its judgment. Id. slip op. at 5 (“Although
the plea arrangement and plea hearing transcript reflect that defendant pled guilty
to FHR, see N.C. Gen. Stat. § 20-166(a) (2015), the judgment reflects that he pled
guilty to felony serious injury by vehicle, see N.C. Gen. Stat. § 20-141.4(a3) (2015).”).
On 28 August 2017, the State filed a petition for a writ of supersedeas and a
motion for a temporary stay with the Supreme Court of North Carolina. On 15
September 2017, the State filed a petition for discretionary review. On 28 September
2017, defendant filed a response to the State’s petition for discretionary review and a
conditional request for discretionary review of an additional issue. On 7 December
2017, our Supreme Court dissolved the temporary stay, denied the State’s petition
for a writ of supersedeas, denied defendant’s conditional petition for discretionary
review, and allowed the State’s petition for discretionary review for the limited
purpose of remanding the case to this Court for reconsideration of our decision in
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Opinion of the Court
Simmons in light of its decision in State v. Brice, ___ N.C. ___, 806 S.E.2d 32 (2017),
rev’g ___ N.C. App. ___, 786 S.E.2d 812 (2016).
On remand, after reviewing Brice, we conclude that defendant’s alleged AFDV
indictment error under N.C. Gen. Stat. § 15A-928 no longer implicates jurisdiction
and, therefore, defendant has waived his right to appellate review of this issue by
failing to object below. Accordingly, we modify our prior decision in Simmons and
sustain the trial court’s judgment and sentence with respect to the AFDV conviction.
We remand for the limited purpose of instructing the trial court to correct the clerical
error in its judgment by reflecting that defendant pled guilty to FHR.
I. Analysis
In Brice, this Court held that the State’s failure to comply with N.C. Gen. Stat.
§ 15A-928’s special-pleading requirement constituted a fatal jurisdictional defect. ___
N.C. App. at ___, 786 S.E.2d at 815 (citation omitted). We thus vacated the
defendant’s conviction for habitual misdemeanor larceny and remanded for entry of
a judgment and sentence on misdemeanor larceny. Id.
On discretionary review, by written opinion filed 3 November 2017, our
Supreme Court held that the State’s failure to comply with N.C. Gen. Stat. § 15A-
928’s special-pleading requirement did not implicate the trial court’s jurisdiction.
Brice, ___ N.C. at ___, 806 S.E.2d at 38. Thus, as the defendant failed to object below
to the State’s N.C. Gen. Stat. § 15A-928 noncompliance, she was not entitled to raise
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Opinion of the Court
that non-jurisdictional issue for the first time on appeal. Id. at ___, 806 S.E.2d at 39–
40. Accordingly, our Supreme Court reversed our decision in Brice, deemed the
defendant’s N.C. Gen. Stat. § 15A-928 issue waived, and remanded with instructions
to reinstate the trial court’s prior judgment. Id.
In reconsideration of our decision, we are bound by our Supreme Court’s
holdings in Brice. As the preservation issue in this case is indistinguishable from
Brice, we hold that because defendant failed to object below to the State’s
noncompliance with N.C. Gen. Stat. § 15A-928’s special-pleading requirement, he “is
not entitled to seek relief based upon that indictment-related deficiency for the first
time on appeal.” Id. at ___, 806 S.E.2d at 40 (footnote omitted). Accordingly, under
Brice, we deem this issue unpreserved for appellate review and thus hold the trial
court’s prior judgment should be reinstated. We remand this case for the limited
purpose of instructing the trial court to correct the clerical error in its judgment to
reflect accurately that defendant pled guilty to FHR.
II. Conclusion
After reconsideration of our prior decision in light of Brice, we conclude that
defendant’s failure to object below to the State’s noncompliance with N.C. Gen. Stat.
§ 15A-928 waived his right to appellate review of this issue. Therefore, we hold that
the trial court’s prior judgment be reinstated. We remand for the limited purpose of
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instructing the trial court to correct the clerical error in its judgment by accurately
reflecting that defendant pled guilty to FHR.
REMANDED FOR CORRECTION OF CLERICAL ERROR.
Judges INMAN and BERGER concur.
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