State v. Irvins

• Court: Court of Appeals of North Carolina
• Decided: April 20, 2021
• Docket: 20-586
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-143

No. COA20-586

Filed 20 April 2021

Mecklenburg County, Nos. 18CRS203190, 19CRS2204

STATE OF NORTH CAROLINA

v.

ROMAN JERONE IRVINS

Appeal by Defendant from judgment entered 23 October 2019 by Judge Lisa C.

Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 March

2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Donna A. Hart, for the State-Appellee.

Edward Eldred for Defendant-Appellant.

COLLINS, Judge.

¶1 Defendant appeals from judgment entered upon a jury verdict of guilty of

felony habitual larceny and a plea of guilty to attaining habitual felon status.

Defendant contends that his indictment for felony habitual larceny was facially

invalid because an attempted larceny conviction is not an eligible count of larceny to

support an indictment for felony habitual larceny under N.C. Gen. Stat. § 14-72(b)(6).

We agree. We arrest judgment on Defendant’s habitual larceny conviction and STATE V. IRVINS

Opinion of the Court

remand to the trial court for sentencing and entry of judgment for misdemeanor

larceny. We reverse the judgment entered upon Defendant’s guilty plea to the

habitual felon charge and remand to the trial court for dismissal.

I. Background

¶2 Defendant was indicted on 28 January 2019 for felony habitual larceny and

attaining habitual felon status. The felony habitual larceny indictment alleged that

Defendant “did unlawfully, willfully, and feloniously steal, take and carry away three

(3) sets of headphones, the personal property of Target Stores, Incorporated,” and had

the following four larceny convictions: (1) misdemeanor larceny on 22 October 2008

in Union County; (2) misdemeanor larceny on 19 June 2012 in Mecklenburg County;

(3) habitual larceny on 2 November 2015 in Union County; and (4) misdemeanor

larceny on 6 June 2016 in Union County. The State moved to amend the felony

habitual larceny indictment to allege that Defendant’s conviction on 22 October 2008

was for attempted misdemeanor larceny rather than misdemeanor larceny, which the

trial court allowed over Defendant’s objection. Defendant was ultimately found guilty

of felony habitual larceny and pled guilty to attaining habitual felon status, while

reserving the right to appeal the felony habitual larceny conviction. Defendant was

sentenced to 77 to 105 months in prison. Defendant gave oral notice of appeal.

II. Standard of Review

¶3 “[W]here an indictment is alleged to be invalid on its face, thereby depriving STATE V. IRVINS

the trial court of its jurisdiction, a challenge to that indictment may be made at any

time, even if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481,

503, 528 S.E.2d 326, 341 (2000) (citations omitted). This Court reviews the

sufficiency of an indictment de novo. State v. White, 372 N.C. 248, 250, 827 S.E.2d

80, 82 (2019).

III. Analysis

¶4 Defendant’s sole argument on appeal is that his indictment for felony habitual

larceny was facially invalid because an attempted larceny conviction is not an eligible

count of larceny to support an indictment for felony habitual larceny under N.C. Gen.

Stat. § 14-72(b)(6).

¶5 To be sufficient under our Constitution, an indictment “must allege lucidly and

accurately all the essential elements of the offense endeavored to be charged.” State

v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003) (citation omitted); see also

State v. Brice, 370 N.C. 244, 250, 806 S.E.2d 32, 36-37 (2017) (noting that defendant’s

indictment for felony habitual larceny alleged all essential elements because, in part,

it alleged defendant had four prior convictions for misdemeanor larceny). “[A]

criminal defendant is guilty of the felony of habitual misdemeanor larceny in the

event that he or she took the property of another and carried it away without the

owner’s consent and with the intent to deprive the owner of his property

permanently,” Brice, 370 N.C. at 248, 806 S.E.2d at 35 (quotation marks and citation STATE V. IRVINS

omitted), “after having been previously convicted of an eligible count of larceny on

four prior occasions.” Id. at 248, 806 S.E.2d at 36 (citing N.C. Gen. Stat. § 14-72(b)(6)).

¶6 An eligible count of larceny is a conviction in this State, or in any other

jurisdiction, for: (1) any offense of larceny under N.C. Gen. Stat. § 14-72; (2) any

offense “deemed or punishable as larceny” under N.C. Gen. Stat. § 14-72; or (3) “any

substantially similar offense in any other jurisdiction, regardless of whether the prior

convictions were misdemeanors, felonies or a combination thereof[.]” N.C. Gen. Stat.

§ 14-72(b)(6) (2019).

¶7 The common law elements of larceny are that the defendant: (1) took the

property of another; (2) carried it away; (3) without the owner’s consent; and (4) with

the intent to deprive the owner of his property permanently. State v. Boykin, 78 N.C.

App. 572, 576, 337 S.E.2d 678, 681 (1985). Larceny is punishable under N.C. Gen.

Stat. § 14-72. Larceny is a Class 1 misdemeanor “where the value of the property or

goods is not more than one thousand dollars ($ 1,000)[.]” N.C. Gen. Stat. § 14-72(a).

Larceny is a felony where evidence supports additional statutory elements set forth

in N.C. Gen. Stat. § 14-72(a) and (b).

¶8 “Attempted larceny is a lesser-included offense of larceny.” State v. Primus,

227 N.C. App. 428, 431, 742 S.E.2d 310, 313 (2013) (citation omitted). An attempt is

an “intentional ‘overt act’ done for the purpose of committing a crime but falling short

of the completed crime.” State v. Broome, 136 N.C. App. 82, 87, 523 S.E.2d 448, 453 STATE V. IRVINS

(1999) (citations omitted). As the State concedes, “attempted larceny is not a

completed larceny under N.C. [Gen. Stat.] §14-72[.]”

¶9 Attempted misdemeanor larceny is not “deemed or punishable” as larceny

under N.C. Gen. Stat. § 14-72. Pursuant to N.C. Gen. Stat. § 14-2.5, “[u]nless a

different classification is expressly stated, . . . an attempt to commit a misdemeanor

. . . is punishable under the next lower classification as the offense which the offender

attempted to commit.” N.C. Gen. Stat. § 14-2.5 (2019). Neither section 14-72 nor 14-

2.5 expressly state the classification for an attempted misdemeanor larceny.

Accordingly, attempted misdemeanor larceny is punishable under N.C. Gen. Stat. §

14-2.5 as a Class 2 misdemeanor, the next lower classification of a Class 1

misdemeanor larceny under N.C. Gen. Stat. § 14-74(a).

¶ 10 Finally, it is uncontested that Defendant’s conviction for attempted

misdemeanor larceny was from Union County, North Carolina, so it is not a

“substantially similar offense” from another jurisdiction. See N.C. Gen. Stat. 14-

72(b)(6).

¶ 11 Because attempted misdemeanor larceny does not fit within any of the three

statutory categories set forth in N.C. Gen. Stat. § 14-72(b)(6), attempted larceny is

not an eligible count of larceny to support an indictment for felony habitual larceny.

¶ 12 The State argues that because the indictment alleges Defendant had a prior

conviction for habitual larceny, that conviction is evidence that Defendant had four STATE V. IRVINS

eligible convictions for larceny. However, as “[t]he purpose of an indictment is to

inform the defendant of the charge against him with sufficient certainty to enable

him to prepare a defense[,]” State v. Bullock, 154 N.C. App. 234, 244, 574 S.E.2d 17,

23 (2002), an indictment “must allege lucidly and accurately all the essential

elements of the offense endeavored to be charged[,]” Hunt, 357 N.C. at 267, 582 S.E.2d

at 600. Accordingly, a habitual larceny indictment must specifically allege each of

the four eligible counts of larceny of which a defendant was convicted. See Brice, 370

N.C. at 249-50, 806 S.E.2d at 36-37 (a habitual larceny indictment must allege the

defendant was convicted of “an eligible count of larceny” on “four separate occasions”).

A prior habitual larceny conviction is only one eligible count of larceny for purposes

of N.C. Gen. Stat. § 14-72(b)(6).

¶ 13 Because attempted misdemeanor larceny is not an eligible count of larceny to

support an indictment for felony habitual larceny under N.C. Gen. Stat. § 14-72(b)(6),

the indictment failed to allege all essential elements of this offense. “When an

indictment has failed to allege the essential elements of the crime charged, it has

failed to give the trial court subject matter jurisdiction over the matter, and the

reviewing court must arrest judgment.” Bullock, 154 N.C. App. at 244, 574 S.E.2d at

23 (citations omitted). Accordingly, we arrest judgment on Defendant’s felony

habitual larceny conviction.

¶ 14 Generally, “[t]he legal effect of arresting the judgment is to vacate the verdict STATE V. IRVINS

and sentence of imprisonment below, and the State, if it is so advised, may proceed

against the defendant upon a sufficient bill of indictment.” State v. Fowler, 266 N.C.

528, 531, 146 S.E.2d 418, 420 (1966) (citations omitted). However, “where the

indictment does sufficiently allege a lesser-included offense, we may remand for

sentencing and entry of judgment thereupon.” Bullock, 154 N.C. App. at 245, 574

S.E.2d at 24. As Defendant’s indictment sufficiently alleged misdemeanor larceny

and the jury’s verdict of guilty of felony habitual larceny necessarily means that they

found all of the elements of the lesser-included offense of misdemeanor larceny, we

remand this case to the trial court for sentencing and entry of judgment for

misdemeanor larceny. See id. at 245, 574 S.E.2d at 24 (remanding defendant’s case

to the trial court for imposition of judgment on attempted voluntary manslaughter as

a lesser-included offense of attempted first degree murder, because all of the elements

of attempted voluntary manslaughter were alleged in the indictment).

¶ 15 Furthermore, because the judgment for Defendant’s conviction for felony

habitual larceny has been arrested and the case remanded to the trial court for

sentencing and entry of judgment for misdemeanor larceny, the judgment entered

upon Defendant’s guilty plea to the habitual felon charge must be reversed and

remanded to the trial court for dismissal. See State v. Flint, 199 N.C. App. 709, 717,

682 S.E.2d 443, 448 (2009) (“In North Carolina, an habitual felon indictment must be

ancillary to a substantive felony and cannot stand on its own.”) (citation omitted). STATE V. IRVINS

IV. Conclusion

¶ 16 Defendant’s indictment was facially invalid because it failed to contain

allegations of four eligible larceny convictions, an essential element of a felony

habitual larceny indictment. The judgment on Defendant’s felony habitual larceny

conviction is arrested and the case is remanded to the trial court for sentencing and

entry of judgment for misdemeanor larceny. Defendant’s guilty plea to the habitual

felon charge is reversed and remanded to the trial court for dismissal.

JUDGMENT ARRESTED IN PART; REVERSED IN PART; AND

REMANDED.

Judges DILLON and ZACHARY concur.