An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-729 NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Lincoln County No. 10 CRS 53179, 3784 WILLIAM LEE HALL
Appeal by defendant from judgment entered 6 February 2012
by Judge James W. Morgan in Lincoln County Superior Court.
Heard in the Court of Appeals 20 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General Christine A. Goebel, for the State.
Mary March Exum for defendant.
HUNTER, Robert C., Judge.
Defendant appeals the judgment sentencing him to 101 months
to 131 months imprisonment after he was convicted of felony
larceny (10 CRS 53179) and attaining the status of habitual
felon (10 CRS 3784). On appeal, defendant argues that the trial
court lacked subject matter jurisdiction to accept his habitual
felon guilty plea because the habitual felon indictment was
returned before the substantive offenses had occurred. -2- Furthermore, defendant contends that the trial court erred by
denying his motion to continue because he was unaware the case
was being called for trial, was unprepared, and was in shock and
taking medication for his mental state. After careful review,
based on this Court’s holding in State v. Ross, __ N.C. App. __,
727 S.E.2d 370 (2012), disc. review denied, 366 N.C. 570, 738
S.E.2d 369 (2013), we vacate defendant’s habitual felon guilty
plea and remand for resentencing on defendant’s conviction for
felony larceny within the appropriate sentencing range.
However, we hold that the trial court did not err by denying
defendant’s motion to continue.
Background
Defendant was indicted 7 September 2010 for attaining the
status of habitual felon, and the habitual felon indictment
charged that defendant “did commit the felonies of [b]reaking or
[e]ntering and [l]arceny . . . while being an habitual felon.”
The date of the offense for defendant’s habitual felon charge
listed on the indictment was 15 November 2009. On 14 March
2011, the grand jury returned a bill of indictment alleging
that, on 24 September 2010, defendant committed second degree
burglary and felony larceny, the underlying substantive offenses
for defendant’s habitual felon indictment. -3- On 14 November 2011, defendant was tried by a jury on the
charges of second degree burglary and felony larceny. The jury
found defendant not guilty of second degree burglary and guilty
of felony larceny on 15 November 2011. That same day, defendant
pled guilty to attaining habitual felon status. Although felony
larceny pursuant to N.C. Gen. Stat. § 14-72(b)(2) is a Class H
felony, defendant’s sentence was enhanced based on his habitual
felon status, and he was sentenced for a Class C felony. After
determining that defendant had 16 prior record points, the trial
court sentenced defendant within the presumptive range of
sentences to a minimum term of 101 months to a maximum term of
131 months imprisonment, with 22 days of credit given for the
time defendant spent in confinement. On the judgment sheet, the
dates of offense listed for defendant’s convictions for felony
larceny and being an habitual felon are 24 September 2010 and 15
November 2009, respectively. On 6 February 2012, the judgment
was amended. The only changes made were that defendant was
given credit for 105 days spent in confinement, and the offense
date for being an habitual felon was changed to 24 September
2010.
On 2 August 2012, this Court granted defendant’s petition
for writ of certiorari to review the judgment. -4- Arguments
Defendant first argues that the trial court lacked subject
matter jurisdiction to accept his guilty plea because he was
indicted as an habitual felon before the underlying substantive
crimes had occurred and prior to being indicted for those
crimes. We agree.
The issue of subject matter jurisdiction may be raised at
any time and may be raised for the first time on appeal. In re
T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). “When an
indictment is fatally defective, the trial court acquires no
subject matter jurisdiction, and if it assumes jurisdiction a
trial and conviction are a nullity.” State v. Frink, 177 N.C.
App. 144, 146, 627 S.E.2d 472, 473 (2006) (internal quotation
marks omitted). “On appeal, we review the sufficiency of an
indictment de novo.” State v. McKoy, 196 N.C. App. 650, 652,
675 S.E.2d 406, 409 (citation omitted), appeal dismissed and
disc. review denied, 363 N.C. 586, 683 S.E.2d 215 (2009).
With regard to the status of being an habitual felon, this
Court has noted that:
The Habitual Felons Act, N.C.G.S. §§ 14-7.1 to -7.6 (2001), allows for the indictment of a defendant as a[n] habitual felon if he has been convicted of or pled guilty to three felony offenses. The effect of such a proceeding is to enhance the punishment of -5- those found guilty of crime who are also shown to have been convicted of other crimes in the past. The Habitual Felons Act requires two separate indictments, the substantive felony indictment and the habitual felon indictment, but does not state the order in which they must be issued.
State v. Blakney, 156 N.C. App. 671, 674, 577 S.E.2d 387, 390
(2003) (internal citations and quotation marks omitted).
Initially, we note that “the issuance of a habitual felon
indictment prior to the substantive felony indictment does not
by itself void the habitual felon indictment where the notice
and procedural requirements of the Habitual Felons Act have been
complied with.” Id. at 675, 577 S.E.2d at 390. However, in the
present case, not only was defendant indicted for being an
habitual felon prior to being indicted for the substantive
felonies of felony larceny and second degree burglary, but he
was also indicted for being an habitual felon before the
substantive offenses had occurred. Defendant was indicted for
attaining habitual felon status on 7 September 2010. However,
he not was indicted for second degree burglary and felony
larceny until 14 March 2011, but, more importantly, the
substantive felonies did not occur until 24 September 2010,
several weeks after the habitual felon status indictment.
Accordingly, given the fact that defendant was indicted as being -6- an habitual felon before the substantive felonies occurred, we
find this Court’s decision in Ross controlling.
In Ross, the defendant was indicted as an habitual felon on
22 September 2008; a superseding habitual felon indictment
correcting a file number error was returned 11 May 2009. Id. at
__, 727 S.E.2d at 372. However, the defendant was not indicted
for the substantive felonies until 20 July 2009. Id. This
Court noted that, “[m]ore importantly,” the substantive felonies
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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. COA13-729 NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Lincoln County No. 10 CRS 53179, 3784 WILLIAM LEE HALL
Appeal by defendant from judgment entered 6 February 2012
by Judge James W. Morgan in Lincoln County Superior Court.
Heard in the Court of Appeals 20 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General Christine A. Goebel, for the State.
Mary March Exum for defendant.
HUNTER, Robert C., Judge.
Defendant appeals the judgment sentencing him to 101 months
to 131 months imprisonment after he was convicted of felony
larceny (10 CRS 53179) and attaining the status of habitual
felon (10 CRS 3784). On appeal, defendant argues that the trial
court lacked subject matter jurisdiction to accept his habitual
felon guilty plea because the habitual felon indictment was
returned before the substantive offenses had occurred. -2- Furthermore, defendant contends that the trial court erred by
denying his motion to continue because he was unaware the case
was being called for trial, was unprepared, and was in shock and
taking medication for his mental state. After careful review,
based on this Court’s holding in State v. Ross, __ N.C. App. __,
727 S.E.2d 370 (2012), disc. review denied, 366 N.C. 570, 738
S.E.2d 369 (2013), we vacate defendant’s habitual felon guilty
plea and remand for resentencing on defendant’s conviction for
felony larceny within the appropriate sentencing range.
However, we hold that the trial court did not err by denying
defendant’s motion to continue.
Background
Defendant was indicted 7 September 2010 for attaining the
status of habitual felon, and the habitual felon indictment
charged that defendant “did commit the felonies of [b]reaking or
[e]ntering and [l]arceny . . . while being an habitual felon.”
The date of the offense for defendant’s habitual felon charge
listed on the indictment was 15 November 2009. On 14 March
2011, the grand jury returned a bill of indictment alleging
that, on 24 September 2010, defendant committed second degree
burglary and felony larceny, the underlying substantive offenses
for defendant’s habitual felon indictment. -3- On 14 November 2011, defendant was tried by a jury on the
charges of second degree burglary and felony larceny. The jury
found defendant not guilty of second degree burglary and guilty
of felony larceny on 15 November 2011. That same day, defendant
pled guilty to attaining habitual felon status. Although felony
larceny pursuant to N.C. Gen. Stat. § 14-72(b)(2) is a Class H
felony, defendant’s sentence was enhanced based on his habitual
felon status, and he was sentenced for a Class C felony. After
determining that defendant had 16 prior record points, the trial
court sentenced defendant within the presumptive range of
sentences to a minimum term of 101 months to a maximum term of
131 months imprisonment, with 22 days of credit given for the
time defendant spent in confinement. On the judgment sheet, the
dates of offense listed for defendant’s convictions for felony
larceny and being an habitual felon are 24 September 2010 and 15
November 2009, respectively. On 6 February 2012, the judgment
was amended. The only changes made were that defendant was
given credit for 105 days spent in confinement, and the offense
date for being an habitual felon was changed to 24 September
2010.
On 2 August 2012, this Court granted defendant’s petition
for writ of certiorari to review the judgment. -4- Arguments
Defendant first argues that the trial court lacked subject
matter jurisdiction to accept his guilty plea because he was
indicted as an habitual felon before the underlying substantive
crimes had occurred and prior to being indicted for those
crimes. We agree.
The issue of subject matter jurisdiction may be raised at
any time and may be raised for the first time on appeal. In re
T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). “When an
indictment is fatally defective, the trial court acquires no
subject matter jurisdiction, and if it assumes jurisdiction a
trial and conviction are a nullity.” State v. Frink, 177 N.C.
App. 144, 146, 627 S.E.2d 472, 473 (2006) (internal quotation
marks omitted). “On appeal, we review the sufficiency of an
indictment de novo.” State v. McKoy, 196 N.C. App. 650, 652,
675 S.E.2d 406, 409 (citation omitted), appeal dismissed and
disc. review denied, 363 N.C. 586, 683 S.E.2d 215 (2009).
With regard to the status of being an habitual felon, this
Court has noted that:
The Habitual Felons Act, N.C.G.S. §§ 14-7.1 to -7.6 (2001), allows for the indictment of a defendant as a[n] habitual felon if he has been convicted of or pled guilty to three felony offenses. The effect of such a proceeding is to enhance the punishment of -5- those found guilty of crime who are also shown to have been convicted of other crimes in the past. The Habitual Felons Act requires two separate indictments, the substantive felony indictment and the habitual felon indictment, but does not state the order in which they must be issued.
State v. Blakney, 156 N.C. App. 671, 674, 577 S.E.2d 387, 390
(2003) (internal citations and quotation marks omitted).
Initially, we note that “the issuance of a habitual felon
indictment prior to the substantive felony indictment does not
by itself void the habitual felon indictment where the notice
and procedural requirements of the Habitual Felons Act have been
complied with.” Id. at 675, 577 S.E.2d at 390. However, in the
present case, not only was defendant indicted for being an
habitual felon prior to being indicted for the substantive
felonies of felony larceny and second degree burglary, but he
was also indicted for being an habitual felon before the
substantive offenses had occurred. Defendant was indicted for
attaining habitual felon status on 7 September 2010. However,
he not was indicted for second degree burglary and felony
larceny until 14 March 2011, but, more importantly, the
substantive felonies did not occur until 24 September 2010,
several weeks after the habitual felon status indictment.
Accordingly, given the fact that defendant was indicted as being -6- an habitual felon before the substantive felonies occurred, we
find this Court’s decision in Ross controlling.
In Ross, the defendant was indicted as an habitual felon on
22 September 2008; a superseding habitual felon indictment
correcting a file number error was returned 11 May 2009. Id. at
__, 727 S.E.2d at 372. However, the defendant was not indicted
for the substantive felonies until 20 July 2009. Id. This
Court noted that, “[m]ore importantly,” the substantive felonies
did not occur until 17 and 18 June 2009, approximately nine
months after the initial habitual felon indictment and one month
after the superseding indictment. Id. at __, 727 S.E.2d at 374.
Relying on State v. Flint, 199 N.C. App. 709, 682 S.E.2d 443
(2009), this Court found that “there was no pending prosecution
for the [substantive felonies] to which the habitual felon
proceeding could attach as an ancillary proceeding because the
crimes had not yet happened.” Ross, __ N.C. App. at __, 727
S.E.2d at 374 (internal quotation marks omitted). Therefore,
“the trial court lacked jurisdiction over the habitual felon
charge and erred by accepting [the] [d]efendant’s habitual felon
guilty plea.” Id. Accordingly, the Court vacated the
defendant’s habitual felon guilty plea and remanded to the trial
court for resentencing on the substantive felonies. Id. -7- Here, as in Ross, given that the crimes of second degree
burglary and felony larceny had not occurred at the time
defendant was indicted for being an habitual felon, there was
“no pending prosecution . . . to which the habitual felon
proceeding could attach as an ancillary proceeding[,]” id.
Therefore, the trial court lacked jurisdiction over defendant’s
habitual felon charge and erred by accepting defendant’s guilty
plea. Accordingly, we vacate defendant’s habitual felon guilty
plea and remand for resentencing on defendant’s conviction for
felony larceny within appropriate sentencing guidelines.
We note that the trial court amended its judgment on 6
February 2012 by changing the offense date of defendant’s
habitual felon charge to 24 September 2010, the same day
defendant committed the offenses of felony larceny and second
degree burglary. However, that amendment to the judgment does
not cure the trial court’s lack of subject matter jurisdiction
when it accepted defendant’s guilty plea. In other words, the
indictment gives the trial court jurisdiction, not the judgment.
See Frink, 177 N.C. App. at 146, 627 S.E.2d at 473. Because
defendant’s habitual felon indictment was defective, pursuant to
Ross, the trial court never acquired jurisdiction over
defendant’s habitual felon charge, and the judgment and amended -8- judgment were “nullit[ies][,]” Frink, 177 N.C. App. at 146, 627
S.E.2d at 473.
In its brief, the State encourages this Court to “not
follow” Ross because it “was decided incorrectly” and
“conflict[s]” with earlier rulings by this Court. However, we
find no inconsistency between the holdings of Ross and those
cases cited by the State, including Blakney, State v. McGee, 175
N.C. App. 586, 623 S.E.2d 782 (2006), and State v. Patton, 342
N.C. 633, 466 S.E.2d 708 (1996). In Blakney, McGee, and Patton,
the defendants were not indicted for being habitual felons
before the substantive offenses had occurred; in Ross, however,
that was the issue before this Court. Moreover, even assuming
arguendo that the State is correct, we are bound by Ross until
that precedent is overturned by our Supreme Court. See In re
Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)
(“Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the
same court is bound by that precedent, unless it has been
overturned by a higher court.”).
Next, defendant argues that the trial court abused its
discretion in denying his motion to continue. We disagree. -9- “Ordinarily, a motion to continue is addressed to the
discretion of the trial court, and absent a gross abuse of that
discretion, the trial court’s ruling is not subject to review.”
State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001),
cert. denied, 535 U.S. 934, 152 L. Ed. 2d 221 (2002). “When a
motion to continue raises a constitutional issue, the trial
court’s ruling is fully reviewable upon appeal.” Id.
At defendant’s trial, his counsel made a motion to continue
on several grounds. Specifically, defense counsel claimed that
defendant was having some “emotional difficulties” because he
was taking medications that affected his mental state.
Furthermore, defense counsel alleged that defendant was in
“shock” that he was going to be tried for second degree burglary
and felony larceny at the same time. Finally, defense counsel
initially seemed to indicate that he was also not ready for
trial. However, he later admitted to being prepared for trial
upon questioning by the trial court.
Here, the trial judge specifically questioned defense
counsel regarding his trial preparation. By his own admission,
defense counsel stated that he was “prepared” for trial and that
the State had warned him that a “possibility” existed that
defendant’s trial would begin that day. Therefore, defendant’s -10- claim that he was denied his Sixth Amendment right to effective
counsel because his attorney did not have time to prepare for
trial is without merit.
Furthermore, while defendant did allege that he was taking
Lexapro for his mental state, he claimed that the other
medications were for his “sinus problems” and “bad headaches.”
In addition, defendant’s “shock” was based on his confusion
regarding the order in which the charges were to be tried, not
necessarily that his trial was beginning that day. Accordingly,
in light of these circumstances, defendant has failed to
establish that the trial court abused its discretion in denying
the motion to continue.
Conclusion
Based on the foregoing reasons, we vacate defendant’s
habitual felon guilty plea and remand for resentencing on his
conviction of felony larceny. However, we find no error with
regards to the trial court’s denial of his motion to continue.
VACATED IN PART AND REMANDED FOR RESENTENCING; NO ERROR IN PART.
Judges CALABRIA and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).