State v. Marino

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1135
Filed: 21 May 2019
Guilford County, Nos. 13 CRS 82502-03
STATE OF NORTH CAROLINA
v.
DANIEL YAIR MARINO
Appeal by Defendant from an Order entered 26 January 2018 by Judge Susan
E. Bray in Guilford County Superior Court. Heard in the Court of Appeals 28
February 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
Uicker, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for defendant-appellant.
HAMPSON, Judge.
Factual and Procedural Background
This matter involves a Motion for Appropriate Relief (MAR) filed by Daniel
Yair Marino (Defendant) on 25 October 2017, seeking relief from criminal convictions.
The Record based upon the proceedings on the MAR below tends to show the following
relevant facts:
On 16 September 2013, a Guilford County Grand Jury indicted Defendant for
one count of Trafficking in Cocaine, a Class D felony; two counts of Trafficking in
STATE V. MARINO
Opinion of the Court
Marijuana, Class H felonies; one count of Possession with Intent to Sell or Deliver
Marijuana, a Class I felony; and one count of Maintaining a Dwelling for the Keeping
or Selling of Marijuana and Cocaine, a Class I felony. Pursuant to a plea
arrangement, Defendant entered an Alford plea to the charged offenses on 11 June
2015. The terms and conditions of the parties’ plea agreement provided:
1. That the charges shall be consolidated [under the Class D
Trafficking in Cocaine charge] for judgment purposes.
2. That prayer for judgment shall be continued until on or after
the criminal term beginning pursuant to [N.C. Gen. Stat. §] 90-
95(h)(5). That the defendant agrees, if called upon by the State,
to provide truthful testimony against any charged co-defendant
in these matters.
3. That upon the State’s prayer for judgment, the Court shall
impose any additional terms deemed appropriate.
Approximately 19 months later, the State prayed for entry of judgment against
Defendant. The trial court held Defendant’s sentencing hearing on 4 January 2017.
At this hearing, the State and defense counsel were given the opportunity to present
arguments regarding Defendant’s sentence. The State informed the trial court that
Defendant had provided the State with “substantial assistance” within the meaning
of N.C. Gen. Stat. § 90-95(h)(5),1 and Defendant’s counsel urged the trial court to
consider Defendant’s efforts when sentencing Defendant.
1 N.C. Gen. Stat. § 90-95(h)(5) authorizes a trial court to deviate from the mandatory
sentencing guidelines under Section 90-95 if the trial court finds the defendant provided the State
with “substantial assistance in the identification, arrest, or conviction of any accomplices, accessories,
co-conspirators, or principals[.]” N.C. Gen. Stat. § 90-95(h)(5) (2017).
-2-
STATE V. MARINO
Opinion of the Court
After finding Defendant provided substantial assistance to the State, the trial
court sentenced Defendant to an active term of a minimum of 48 months and a
maximum of 70 months, and ordered Defendant to pay a $25,000 fine. This sentence
was substantially lower than the sentence Defendant would have received had he not
provided substantial assistance to the State, which the trial court acknowledged was
a minimum of 175 months and a maximum of 222 months, plus a $250,000 fine. The
written Judgment was entered on 6 January 2017; however, there was a clerical error
in this Judgment, which was corrected by written Judgment on 27 February 2017.
On 25 October 2017, Defendant filed a MAR requesting the trial court set aside
the sentence imposed on Defendant. According to Defendant’s MAR, the trial court
lacked jurisdiction to enter the sentence because of N.C. Gen. Stat. § 15A-1331.2,
which requires the trial court enter final judgment on certain high-level felonies,
including Class D felonies, within 12 months of the trial court entering a prayer for
judgment continued (PJC). After hearing arguments from the State and defense
counsel, the trial court issued an Order denying Defendant’s MAR (MAR Order) on
26 January 2018. In its MAR Order, the trial court concluded Section 15A-1331.2
does not mention jurisdiction and that a violation of this statute does not divest the
trial court of jurisdiction to enter judgment on a PJC after 12 months. Defendant
petitioned this Court for a Writ of Certiorari to review the MAR Order. We granted
-3-
STATE V. MARINO
Opinion of the Court
Defendant’s Petition for the purpose of granting Defendant an appeal. Defendant has
prosecuted his appeal, and we now review the merits of his argument.
Issue
The sole issue on appeal is whether Section 15A-1331.2 of our General Statutes
divested the trial court of jurisdiction to enter Judgment on Defendant’s plea to Class
D Trafficking in Cocaine.
Standard of Review
“When considering rulings on motions for appropriate relief, we review the
trial court’s order to determine ‘whether the findings of fact are supported by
evidence, whether the findings of fact support the conclusions of law, and whether
the conclusions of law support the order entered by the trial court.’ ” State v. Frogge,
359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712,
720, 291 S.E.2d 585, 591 (1982)). “Conclusions of law are reviewed de novo and are
subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)
(citations omitted). This Court has stated, “If the issues raised by Defendant’s
challenge to [the trial court’s] decision to deny his [MAR] are primarily legal rather
than factual in nature, we will essentially use a de novo standard of review in
evaluating Defendant’s challenges to [the court’s] order.” State v. Jackson, 220 N.C.
App. 1, 8, 727 S.E.2d 322, 329 (2012) (first and third alteration in original) (citation
and quotation marks omitted).
-4-
STATE V. MARINO
Opinion of the Court
Here, Defendant challenges the trial court’s MAR Order on legal rather than
factual grounds, asserting that N.C. Gen. Stat. § 15A-1331.2 divested the trial court
of jurisdiction to enter Judgment on Defendant’s plea to Class D Trafficking in
Cocaine. See, e.g., State v. Hayes, ___ N.C. App. ___, ___, 788 S.E.2d 651, 652 (2016)
(“Issues of statutory construction are questions of law which we review de novo on
appeal[.]” (citation omitted)); Powers v. Wagner, 213 N.C. App. 353, 357, 716 S.E.2d
354, 357 (2011) (“This Court’s determination of whether a trial court has subject
matter jurisdiction is a question of law that is reviewed on appeal de novo.” (citation
and quotation marks omitted)). Therefore, we employ a de novo review.
Analysis
A. Background Law on PJCs
“Once a guilty plea is accepted in a criminal case, a trial court may continue
the case to a subsequent date for sentencing.” State v. Watkins, 229 N.C. App. 628,
631, 747 S.E.2d 907, 910 (2013) (citing State v. Absher, 335 N.C. 155, 156, 436 S.E.2d
365, 366 (1993)); see also N.C. Gen. Stat. § 15A-1334(a) (2017) (allowing “continuance
of the sentencing hearing”); id. § 15A-1416(b)(1) (2017) (allowing the State to move
for imposition of sentence when prayer for judgment has been continued). “This
continuance is frequently referred to as a ‘prayer for judgment continued’ . . . [and]
vests a trial judge presiding at a subsequent session of court with the jurisdiction to
sentence a defendant for crimes previously adjudicated.” State v. Degree, 110 N.C.
-5-
STATE V. MARINO
Opinion of the Court
App. 638, 640-41, 430 S.E.2d 491, 493 (1993) (emphasis added); see also Miller v.
Aderhold, 288 U.S. 206, 211, 77 L. Ed. 702, 705-06 (1933) (“[W]here verdict has been
duly returned, the jurisdiction of the trial court . . . is not exhausted until sentence is
pronounced, either at the same or a succeeding term.” (citations omitted)).
Under our common law, a PJC may be for a definite or indefinite period of time,
as long as it is entered “within a reasonable time”; otherwise, the trial court loses
jurisdiction. Degree, 110 N.C. App. at 641, 430 S.E.2d at 493 (citation and quotation
marks omitted). Our Supreme Court has clarified that “[a]s long as a prayer for
judgment is not continued for an unreasonable period, . . . and the defendant was not
prejudiced, . . . the court does not lose the jurisdiction to impose a sentence.” Absher,
335 N.C. at 156, 436 S.E.2d at 366 (citations omitted). “Deciding whether sentence
has been entered within a ‘reasonable time’ requires consideration of the reason for
the delay, the length of the delay, whether defendant has consented to the delay, and
any actual prejudice to defendant which results from the delay.” Degree, 110 N.C.
App. at 641, 430 S.E.2d at 493 (citation omitted); see also State v. Lea, 156 N.C. App.
178, 180, 576 S.E.2d 131, 133 (2003) (upholding as reasonable a sentence entered over
five years after defendant was convicted).
B. N.C. Gen. Stat. § 15A-1331.2
-6-
STATE V. MARINO
Opinion of the Court
In 2012, the Legislature enacted N.C. Gen. Stat. § 15A-1331.2, titled “Prayer
for Judgment Continued for a Period of Time that Exceeds 12 Months Is an Improper
Disposition of a Class B1, B2, C, D, or E Felony,” which provides:
The court shall not dispose of any criminal action that is a
Class B1, B2, C, D, or E felony by ordering a prayer for judgment
continued that exceeds 12 months. If the court orders a prayer
for judgment continued in any criminal action that is a Class B1,
B2, C, D, or E felony, the court shall include as a condition that
the State shall pray judgment within a specific period of time not
to exceed 12 months. At the time the State prays judgment, or 12
months from the date of the prayer for judgment continued order,
whichever is earlier, the court shall enter a final judgment unless
the court finds that it is in the interest of justice to continue the
order for prayer for judgment continued. If the court continues
the order for prayer for judgment continued, the order shall be
continued for a specific period of time not to exceed 12 months.
The court shall not continue a prayer for judgment continued
order for more than one additional 12-month period.
N.C. Gen. Stat. § 15A-1331.2 (2017). Whether, and to what extent, N.C. Gen. Stat. §
15A-1331.2 imposes stricter jurisdictional requirements on a trial court for these
high-level felonies than at common law presents a question of first impression for this
Court.2
Here, Defendant’s plea to a Class D felony and the trial court’s 27 February
2017 Judgment unquestionably failed to comply with the requirements of N.C. Gen.
Stat. § 15A-1331.2, which provides that if a trial court orders a PJC for a Class D
2Watkins represents the only published opinion from either of our appellate courts that
mentions the statute in question; however, we did not address this statute’s impact on our previous
case law. 229 N.C. App. at 631 n.2, 747 S.E.2d at 910 n.2 (“[W]e do not reach the issue of how this
statute affects the rules laid out in Degree and Absher as the statute [is inapplicable in this case].”).
-7-
STATE V. MARINO
Opinion of the Court
felony, the trial court must include a condition that the State pray for judgment
“within a specific period of time not to exceed 12 months.” See N.C. Gen. Stat. § 15A-
1331.2. Here, Defendant’s plea agreement contained no such provision.
Approximately 19 months after Defendant’s conviction, the State prayed for
judgment, and Defendant’s Judgment was entered. No further order was entered
during this 19-month time period continuing the case for up to the additional 12
months under the statute. As a result, the ultimate issue presented for our
consideration in this case is whether the fact that Defendant’s PJC failed to comply
with the time-limit requirements set out in N.C. Gen. Stat. § 15A-1331.2 deprived the
trial court of jurisdiction to enter Judgment against Defendant.
It is axiomatic that “[w]here jurisdiction is statutory and the Legislature
requires the Court to exercise its jurisdiction in a certain manner, to follow a certain
procedure, or otherwise subjects the Court to certain limitations, an act of the Court
beyond these limits is in excess of its jurisdiction.” In re T.R.P., 360 N.C. 588, 590,
636 S.E.2d 787, 790 (2006) (citation and quotation marks omitted). “The extent, if
any, to which a particular statutory provision creates a jurisdictional requirement
hinges upon the meaning of the relevant statutory provisions.” State v. Brice, 370
N.C. 244, 251, 806 S.E.2d 32, 37 (2017) (citation omitted).
Under North Carolina law, “[t]he primary rule of construction of a statute is to
ascertain the intent of the legislature and to carry out such intention to the fullest
-8-
STATE V. MARINO
Opinion of the Court
extent.” Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 137
(1990) (citation omitted). “The best indicia of [the legislative] intent are the language
of the statute . . . , the spirit of the act[,] and what the act seeks to accomplish.”
Concrete Co. v. Board of Commissioners, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)
(citation omitted).
If the language of a statute is free from ambiguity and expresses
a single, definite, and sensible meaning, judicial interpretation is
unnecessary and the plain meaning of the statute controls.
Conversely, where a literal interpretation of the language of a
statute will lead to absurd results, or contravene the manifest
purpose of the Legislature, as otherwise expressed, the reason
and purpose of the law shall control and the strict letter thereof
shall be disregarded.
Mazda Motors v. Southwestern Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979)
(citations and quotation marks omitted). Although we generally construe criminal
statutes against the State, “[a] criminal statute is still construed utilizing ‘common
sense’ and legislative intent.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277
(2005) (quoting State v. Jones, 358 N.C. 473, 478, 598 S.E.2d 125, 128 (2004)); see also
Darby v. Darby, 135 N.C. App. 627, 628, 521 S.E.2d 741, 742 (1999) (“[T]he courts in
reading our statutes must import common sense to the meaning of the legislature’s
words to avoid an absurdity.” (citation omitted)).
We acknowledge the language of N.C. Gen. Stat. § 15A-1331.2 is unambiguous
in prohibiting a trial court from entering an indefinite PJC for these high-level
crimes. However, nothing in Section 15A-1331.2 suggests its provisions should be
-9-
STATE V. MARINO
Opinion of the Court
construed as jurisdictional in nature. On its face, the statute in question fails to
mention jurisdiction or any consequences for not adhering to its directives. We
therefore must look to the Legislature’s intent in enacting this statute to determine
whether noncompliance strips the trial court of jurisdiction to enter final judgment.
See Brice, 370 N.C. at 251, 806 S.E.2d at 37.
After reviewing the legislative history of this statute, which we acknowledge
is scant, it is apparent that the purpose of Section 15A-1331.2 is to ensure those
charged with the highest level offenses under our statutes do not escape punishment
by receiving an indefinite PJC.3 By only limiting the trial court’s ability to enter
3 The Bill creating this statute originated in the House of Representatives and read as follows:
The court shall not dispose of any criminal action that is a Class B, C, D,
or E felony by ordering a prayer for judgment continued that exceeds 12
months. If the court orders a prayer for judgment continued in any criminal
action that is a Class B, C, D, or E felony, the court shall include as a condition
that the State shall pray judgment within a specific period of time, not to
exceed 12 months, and the court shall enter a final judgment at the time the
State prays judgment or 12 months from the date of the prayer for judgment
continued order, whichever is earlier.
H.R. 852, 2011 Gen. Assemb., Reg. Sess. (N.C. Apr. 6, 2011) (originally proposed bill). After passing a
first reading in the House, this Bill was referred to the House Committee on Judiciary Subcommittee
B, where it was amended to its current version. See H.R. 852, 2011 Gen. Assemb., Reg. Sess. (N.C.
Apr. 27, 2011) (edition 2). The Minutes from this Subcommittee shed little light on the discussions
regarding the changes to this Bill. See Minutes of H. Comm. on Judiciary Subcomm. B, 2011 Gen.
Assemb., Reg. Sess. (N.C. Apr. 26, 2011).
When this Bill was read for the second time in the House, the sponsor of the Bill, Rep. Timothy
Spear, and three other Representatives spoke in support of it, describing it as an attempt to ensure
that a PJC is not a final disposition in these high-level felony cases and to be “tougher on crime.” See
House Audio Archives, 2011 Gen. Assemb., Reg. Sess. (Apr. 28, 2011),
https://www.ncleg.gov/DocumentSites/HouseDocuments/2011-
2012%20Session/Audio%20Archives/2011/04-28-2011.mp3 (remarks by Reps. Guice, Spear, Engle, and
- 10 -
STATE V. MARINO
Opinion of the Court
indefinite PJCs in the most serious offenses, the Legislature evinces an intent to
expedite entry of final judgment for high-level crimes and guarantee that defendants
convicted of these high-level crimes do not avoid sentencing for extended periods of
time, which was and still is possible for defendants convicted of less serious offenses.
See, e.g., State v. Pelley, 221 N.C. 487, 496-98, 20 S.E.2d 850, 856-57 (1942) (upholding
a delay of almost seven years between PJC and entry of final judgment).
Defendant contends a violation of Section 15A-1331.2 relinquishes the trial
court of jurisdiction under the plain language of the statute, which used mandatory
language. However, although the provisions of this statute are couched in mandatory
terms, that fact, standing alone, does not make them jurisdictional in nature. See,
e.g., State v. House, 295 N.C. 189, 203, 244 S.E.2d 654, 662 (1978) (stating the words
“must” or “shall” in a statute does not always “indicate a legislative intent to make a
provision of the statute mandatory[] and a failure to observe it fatal to the validity of
the purported action”).4
Faircloth at 3:59:00 to 4:05:00). These brief remarks constitute the only substantive discussions of
this Bill. Eventually, the exact language of this Bill was placed in Senate Bill 707, which became law
in 2012. See School Violence Prevention Act of 2012, 2012 N.C. Sess. Law 149, § 11 (N.C. 2012); see
also 2012 N.C. Sess. Law 194, § 45.(e) (N.C. 2012) (recodifying Section 11 of Session Law 149 as N.C.
Gen. Stat. § 15A-1331.2).
4 Our view of Section 15A-1331.2 is analogous to the treatment of N.C. Gen. Stat. § 7B-1109(e),
which provides strict timelines for entry of orders in termination of parental rights proceedings. See
N.C. Gen. Stat. § 7B-1109(e) (2017). This Court has recognized the failure to enter an order within
the statutory timelines does not automatically result in the order being vacated. See In re J.L.K., 165
N.C. App. 311, 316, 598 S.E.2d 387, 391 (2004). Our Supreme Court has further held the remedy to
enforce these statutory timelines is through mandamus. In re T.H.T., 362 N.C. 446, 455, 665 S.E.2d
- 11 -
STATE V. MARINO
Opinion of the Court
The effect of adopting the construction of N.C. Gen. Stat. § 15A-1331.2
espoused by Defendant, which would prohibit a trial court from entering judgment
on an indefinite PJC after 12 months (or 24 months if either party obtains an
extension) for our State’s most serious offenses, cannot be squared with the likely
legislative intent motivating the enactment of this statutory provision. See Mazda
Motors, 296 N.C. at 361, 250 S.E.2d at 253 (holding where an interpretation of a
statute would “contravene the manifest purpose of the Legislature, . . . the reason
and purpose of the law shall control” (citations omitted)). As previously discussed, it
is apparent our Legislature never intended that a violation of Section 15A-1331.2
would strip the trial court of jurisdiction to enter judgment on these high-level
offenses. Because the intent of the Legislature controls, we hold that noncompliance
with N.C. Gen. Stat. § 15A-1331.2 does not automatically divest the trial court of
jurisdiction to enter a final judgment. See id. Rather, whether the trial court
retained jurisdiction must be assessed using the standards set out in Absher and
Degree.
Applying these principles, we hold the trial court’s delay in sentencing
Defendant was not unreasonable nor was Defendant prejudiced by this delay. First,
the Record shows, and Defendant concedes, that Defendant did not object to the trial
54, 60 (2008) (“In cases such as the present one in which the trial court fails to adhere to statutory
time lines, mandamus is an appropriate and more timely alternative than an appeal.”).
- 12 -
STATE V. MARINO
Opinion of the Court
court’s PJC entered upon Defendant’s Alford plea, and thereafter Defendant never
requested the trial court enter judgment on his conviction. His failure to do either is
“tantamount to his consent to a continuation of” judgment during that time period.
Degree, 110 N.C. App. at 641-42, 430 S.E.2d at 493. Secondly, the length of
Defendant’s delay, approximately 19 months, is well within the range of delays
previously upheld by our courts. See Pelley, 221 N.C. at 496-98, 20 S.E.2d at 856-57
(approximately seven-year delay upheld); see also Lea, 156 N.C. App. at 180, 576
S.E.2d at 133 (five-year delay upheld); State v. Mahaley, 122 N.C. App. 490, 491-93,
470 S.E.2d 549, 550-52 (1996) (four-year, six-month delay upheld).5
Lastly, Defendant suffered no prejudice as a result of this delay. The purpose
for Defendant’s PJC was to allow Defendant time to provide substantial assistance to
the State in accordance with his plea agreement. Because of this delay in sentencing,
Defendant was able to provide substantial assistance, and as a result, Defendant
received a significantly lower sentence than he would have had he not been able to
provide assistance to the State. Further, Defendant does not argue he was prejudiced
in any way by the trial court’s failure to enter judgment within 12 months.
5 We further note had (1) Defendant’s plea agreement included a condition that the State pray
for judgment within a specific period of time not to exceed 12 months and (2) the State moved for an
additional 12-month continuance within the first 12-month period, the 19-month period in this case
would have complied with the statutory requirements of Section 15A-1331.2. See N.C. Gen. Stat. §
15A-1331.2.
- 13 -
STATE V. MARINO
Opinion of the Court
Accordingly, we hold that the Judgment was entered within a reasonable
period of time and that Defendant suffered no actual prejudice thereby. Because the
trial court did not lose jurisdiction to enter Judgment against Defendant, the trial
court correctly denied Defendant’s MAR.
Conclusion
For the foregoing reasons, we conclude the trial court retained jurisdiction to
enter Judgment on 27 February 2017. Therefore, we affirm the trial court’s MAR
Order.
AFFIRMED.
Judges ZACHARY and BERGER concur.
- 14 -