Friend v. State

609 S.E.2d 473, 169 N.C. App. 99, 2005 N.C. App. LEXIS 535

• Court: Court of Appeals of North Carolina
• Decided: March 15, 2005
• Docket: No. COA04-570
• Status: Published

Opinions

TIMMONS-GOODSON, Judge.

The State of North Carolina (“the State”) appeals the entry of summary judgment in favor of Donald Claude Friend (“plaintiff’) in a declaratory judgment action. Because plaintiff was a convicted felon for the purposes of N.C. Gen. Stat. § 14-404, we reverse.

The facts and procedural history pertinent to the instant appeal are as follows: In 1980, plaintiff was charged in Forsyth County with possession with intent to sell and deliver a controlled substance, sale and delivery of a controlled substance, and conspiracy to sell and deliver a controlled substance. On 24 March 1981, plaintiff entered a plea of guilty to misdemeanor possession of a controlled substance, felony sale and delivery of a controlled substance, and felony conspiracy to sell a controlled substance. Plaintiff received a suspended sentence on the misdemeanor charge, and a prayer for judgment continued was entered with regard to the two felony charges.

Pursuant to N.C. Gen. Stat. § 14-403, on 31 October 2003, plaintiff applied for a permit to purchase a pistol in Forsyth County. In response to a question on the permit application, plaintiff indicated that he had not previously been convicted of a felony. The Forsyth County Sheriff’s Office subsequently denied plaintiff’s application, noting that plaintiff had previously been convicted for felony sale and delivery of a controlled substance.

On 11 November 2003, plaintiff was indicted for perjury and attempting to obtain property by false pretenses in connection with the pistol purchase permit application. The charges were dismissed on 5 December 2003. On 17 December 2003, plaintiff filed a declaratory judgment complaint against the State, seeking to determine “his status as a ‘convicted felon’ and his entitlement to lawfully obtain a handgun permit.” The declaratory judgment complaint requested that the trial court enter a judgment adjudicating the following:

1. That this plaintiff is not a “convicted felon” under the laws of this State; and

2. That the plaintiff is entitled to all privileges and responsibilities guaranteed by United States of America and State of North Carolina citizenship; and

3. That the plaintiff is entitled to obtain a handgun permit from the Forsyth County, North Carolina Sheriff’s Department or any other lawful jurisdiction within the State of North Carolina; and

4. For such other and further relief as to the Court seems just and proper.

On 22 January 2004, the State filed a motion requesting summary judgment in its favor as well as dismissal of plaintiffs complaint for failure to join a necessary party. On 30 January 2004, plaintiff moved the trial court to award summary judgment in his favor and to grant him the relief requested in the declaratory judgment complaint. On 2. March 2004, the trial court entered a declaratory judgment containing the following pertinent findings of fact:

4. The Judgment for “Prayer for Judgment Continued from term to term to term” in the felony guilty pleas was not a “conviction” with respect to the two felony guilty pleas entered.

5. The plaintiff is not a “convicted felon” under the laws and the Constitution of the State of North Carolina.

6. The plaintiff is entitled to a handgun permit in Forsyth County or any other territorial jurisdiction.

Based upon these findings of fact, the trial court awarded summary judgment in plaintiffs favor and denied the State’s motion to dismiss plaintiff’s complaint. The declaratory judgment contains the following pertinent decrees:

3. The plaintiff is adjudged to not be a “convicted felon” under the Constitution or the laws of the State of North Carolina; and

4. The plaintiff is entitled to apply for and obtain a handgun permit in Forsyth County, State of North Carolina or any other territorial jurisdiction.

The State appeals.

The dispositive issue on appeal is whether the trial court erred by ruling that plaintiff is not a convicted felon.¹ The State argues that plaintiffs prior prayer for judgment continued qualifies as a felony conviction for the purposes of N.C. Gen. Stat. § 14-404. We agree.

The record reflects that plaintiff applied for a permit to purchase a pistol pursuant to N.C. Gen. Stat. § 14-403 (2003), which requires that handgun licenses or permits be issued by a county sheriff. N.C. Gen. Stat. § 14-404(c)(l) (2003) provides that a handgun permit may not be issued to an individual “who is under an indictment or information for or has been convicted in any state, or in any court of the United States, of a felony[.]” When an individual is a convicted felon, N.C. Gen. Stat. § 14-415.1(a) (2003) prohibits the individual from purchasing, owning, possessing, or having in his custody, care, or control, “any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches[.]” The statute further provides in pertinent part:

(b) Prior convictions which cause disentitlement under this section shall only include:

(1) Felony convictions in North Carolina that occur before, on, or after December 1, 1995; and

When a person is charged under this section, records of prior convictions of any offense, whether in the courts of this State, or in the courts of any other state or of the United States, shall be admissible in evidence for the purpose of proving a violation of this section. The term “conviction” is defined as a final judgment in any case in which felony punishment, or imprisonment for a term exceeding one year, as the case may be, is permissible, without regard to the plea entered or to the sentence imposed. A judgment of a conviction of the defendant or a plea of guilty by the defendant to such an offense certified to a superior court of this State from the custodian of records of any state or federal court shall be prima facie evidence of the facts so certified.

N.C. Gen. Stat. § 14-415.1(b).

In the instant case, the trial court concluded that plaintiff’s pleas of guilty to felony sale and delivery of a controlled substance and felony conspiracy to sell a controlled substance did not result in a “conviction” because plaintiff received a prayer for judgment continued with respect to the charges. However, we note that in State v. Sidberry, 337 N.C. 779, 448 S.E.2d 798 (1994), the defendant argued that a prayer for judgment continued did not constitute a final judgment and should not be treated as a conviction for the purposes of N.C. Gen. Stat. § 8C-1, Rule 609. Citing the well-established rule that “ ‘a plea of guilty, freely, understandingly, and voluntarily entered, is equivalent to a conviction of the offense charged[,]’ ” our Supreme Court concluded that the defendant’s prior pleas of guilty to sale and delivery of cocaine, although continued pending disposition of a murder charge, could be used to attack the defendant’s credibility when he testified during the murder trial. Id. at 782, 448 S.E.2d at 800 (quoting State v. Watkins, 283 N.C. 17, 27, 194 S.E.2d 800, 808, cert. denied, 414 U.S. 1000, 38 L. Ed. 2d 235 (1973)). Similarly, in State v. Hatcher, 136 N.C. App. 524, 524 S.E.2d 815 (2000), the defendant argued that the trial court erred in computing his prior record level by assessing points to a charge to which he pled no contest and for which prayer for judgment was continued. This Court noted that, for the purposes of the Fair Sentencing Act, a person is convicted “ ‘when he has been adjudged guilty or has entered a plea of guilty or no contest[,]’ ” and “formal entry is not required to have a conviction.” Id. at 527, 524 S.E.2d at 817 (quoting N.C. Gen. Stat. § 15A-1331(b) (1997)). “Consequently,” we concluded that the defendant “was convicted of the prior offense when he entered the plea of no contest even though no final judgment had been entered.” Hatcher, 136 N.C. App. at 527, 524 S.E.2d at 817; see Britt v. North Carolina Sheriffs’ Educ. & Training Stds. Comm’n, 348 N.C. 573, 576-77, 501 S.E.2d 75, 77 (1998) (concluding that a plea of no contest to misdemeanor obstruction of justice was a “conviction” for purposes of the petitioner’s deputy sheriff’s certification, despite the trial court’s entry of a prayer for judgment continued).

Plaintiff contends that these cases do not apply to the Felony Firearms Act and are instead limited to the statutes discussed therein. However, plaintiff provides no authority for this contention, and we note that in State v. Watts, 72 N.C. App. 661, 325 S.E.2d 505, disc. review denied, 313 N.C. 611, 332 S.E.2d 83 (1985), the defendant argued that evidence of his “no contest” plea in a prior case was insufficient to prove that he had been previously convicted of a felony under N.C. Gen. Stat. § 14-415.1. After reviewing the statute, this Court concluded that “the plain words of th[e] statute require[] us. to hold that if a defendant enters a plea, including a plea of no contest, so that a felony judgment or imprisonment for more than two years may be imposed[,] then it constitutes a conviction under G.S. 14-415.1.” Id. at 663, 325 S.E.2d at 506. In the instant case, plaintiff pled guilty to the sale and delivery of a controlled substance and conspiracy to sell a controlled substance, both felony charges. We conclude that the reasoning of Watts and the above-cited cases are both persuasive in and applicable to the instant case.

Under N.C. Gen. Stat. § 14-415.1(b), a conviction is a judgment in which felony judgment or imprisonment for more than one year is permissible, “without regard to the plea entered or to the sentence imposed.” Under N.C. Gen. Stat. § 14-415.1(c), the indictment charging an individual with possession of a firearm by a felon must set forth the date the prior offense was committed, the type of offense and the penalty thereof, “the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the conviction or plea of guilty took place and the verdict and judgment rendered therein.” (emphasis added). Thus, by its owns terms, the statute prohibiting the possession of a firearm by a felon contemplates an individual being indicted for the crime regardless of the sentence rendered by the trial court. Furthermore, we note that under N.C. Gen. Stat. § 14-415.12(b) (2003), a sheriff is required to deny a concealed handgun permit to any applicant who “[h]as been adjudicated guilty in any court of a felony” or has “had entry of a prayer for judgment continued for a criminal offense which would disqualify the person from obtaining a concealed handgun permit.” N.C. Gen. Stat. § 14-415.12(b)(3), (9). In light of the foregoing case and statutory law, we hold that by virtue of his prior guilty pleas to felony sale and delivery of a controlled substance and felony conspiracy to sell a controlled substance, plaintiff is a “convicted felon” for the purposes of N.C. Gen. Stat. § 14-404. Therefore, the trial court’s judgment to the contrary is reversed.

Reversed.

Judge BRYANT concurs. Judge LEVINSON dissents.

1 . The trial court also ruled that plaintiff “is entitled to apply for and obtain a handgun permit in Forsyth County, State of North Carolina or any other territorial jurisdiction.” However, on 1 March 2004, prior to the trial court’s entry of its order, plaintiff filed a stipulation withdrawing “the request for relief stated in the Complaint to the effect that the plaintiff desires that the Court adjudicate that he is entitled to obtain a handgun permit from the Forsyth County Sheriff’s Department or in any other lawful jurisdiction in the State of North Carolina.” We note that by virtue of plaintiff’s express withdrawal of the request, the trial court was without authority to rule on the issue. Furthermore, pursuant to N.C. Gen. Stat. § 14-404, whether an individual has been convicted of a felony is only one of several factors to be considered by the sheriff in determining whether to issue a handgun permit. Although we recognize that the State has assigned error to this issue on appeal, because we have determined that other issues in the appeal are dispositive, we choose not to address the issue.