An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-472 NORTH CAROLINA COURT OF APPEALS Filed: 15 July 2014 STATE OF NORTH CAROLINA
Wilkes County v. Nos. 11 CRS 50057-61, 50065-67, 50499-506, 1078-1084
JOHN DERRICK MCCULLOCH
Appeal by defendant from judgments entered 16 November 2012
by Judge R. Stuart Albright in Wilkes County Superior Court.
Heard in the Court of Appeals 10 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General Tiffany Y. Lucas, for the State.
Gerding Blass, PLLC, by Danielle Blass, for Defendant.
ERVIN, Judge.
Defendant John Derrick McCulloch appeals from judgments
revoking his probation and activating his suspended sentences
based on a determination that he had willfully violated the
terms and conditions of his probation without lawful excuse. On
appeal, Defendant argues that the trial court lacked the
authority to revoke his probation in certain cases on the
grounds that the jurisdictional prerequisites for taking that
action had not been satisfied. After careful consideration of -2- Defendant’s challenge to the trial court’s judgments in light of
the record and the applicable law, we conclude that the trial
court’s judgments should remain undisturbed.
I. Factual Background
A. Wilkes County Judgments
On 7 January 2011, warrants for arrest were issued charging
Defendant with eleven counts of identity theft and six counts of
attempted identity theft. On 17 February 2011, warrants for
arrest charging Defendant with five counts of felonious breaking
or entering, one count of larceny of a firearm, three counts of
felonious larceny, and two counts of injury to real property
were issued. On 21 September 2011, informations charging
Defendant with eight counts of conspiracy to commit identity
theft, two counts of attempted identity theft, five counts of
felonious breaking or entering, one count of larceny of a
firearm, two counts of injury to real property, and four counts
of felonious larceny were executed and subsequently placed in
the relevant court files. On the same date, Defendant entered
pleas of guilty to eight counts of conspiracy to commit identity
theft, two counts of attempted identity theft, five counts of
felonious breaking and entering, one count of larceny of a
firearm, four counts of felonious larceny, and two counts of
injury to real property pursuant to a plea agreement which -3- provided that, in return for Defendant’s guilty pleas, the State
would voluntarily dismiss nine counts of identity theft, three
counts of attempted identity theft, and one count of driving
while license revoked and that Defendant would receive ten
consecutive suspended sentences, be placed on intensive
probation, and make restitution to the victims of his conduct in
an amount to be determined at a later time. After accepting
Defendant’s guilty pleas, Judge Jeanie R. Houston entered
judgments that, when viewed in their entirety, sentenced
Defendant to ten consecutive terms of 9 to 11 months
imprisonment that were each suspended for 36 months on the
condition that Defendant pay the costs, a $250.00 fine,
$1,716.00 in restitution, and a $937.50 attorney’s fee; be
placed on intensive probation; and comply with the usual terms
and conditions of probation.
B. Ashe County Judgments
On 27 January 2011, a warrant for arrest charging Defendant
with possession of a Schedule II controlled substance and
possession of drug paraphernalia was issued. On 28 January
2011, a warrant for arrest charging Defendant with misdemeanor
larceny was issued. On 18 February 2011, warrants for arrest
charging Defendant with two counts of obtaining property by
false pretenses were issued. On 3 March 2011, warrants for -4- arrest charging Defendant with twelve counts of obtaining
property by false pretenses were issued. On 12 June 2011, a
warrant for arrest charging Defendant with misdemeanor larceny
was issued. On 22 September 2011, Defendant entered no contest
pleas to fourteen counts of obtaining property by false
pretenses, one count of felonious possession of a Schedule II
controlled substance, one count of misdemeanor possession of a
Schedule II controlled substance, two counts of misdemeanor
larceny, two counts of writing a worthless check, two counts of
possession of drug paraphernalia, and two counts of driving
while license revoked pursuant to a plea agreement under which
the State agreed to voluntarily dismiss nine counts of obtaining
property by false pretenses and Defendant would receive seven
consecutive suspended sentences, be placed on probation, and pay
restitution. Based upon Defendant’s no contest pleas, Judge
David V. Byrd entered judgments that, viewed in their entirety,
sentenced Defendant to seven consecutive terms of 11 to 14
months imprisonment that were each suspended for a period of 36
months on the condition that Defendant pay the costs, $21,156.60
in restitution, and a $1,125.60 attorney’s fee; be placed on
supervised probation; and comply with the usual terms and -5- conditions of probation.1 Defendant’s probation in these Ashe
County cases was transferred to Wilkes County.
C. Revocation of Defendant’s Probation
On 16 November 2011, Defendant’s probation officer filed
violation reports requesting revocation of Defendant’s probation
in the ten Wilkes County and seven Ashe County cases on the
grounds that Defendant had willfully failed to abide by his
court-ordered curfew requirement, missed multiple appointments
with his probation officer, and failed to make required monthly
restitution and supervision fee payments. On 14 December 2011,
Defendant’s probation officer filed addenda to these violation
reports alleging that Defendant had committed further violations
of the terms and conditions of his probation by failing to abide
by his curfew and leaving the jurisdiction of the court without
permission.
A hearing concerning the allegations advanced in these
violation reports was held before the trial court in Wilkes
County Superior Court on 16 November 2012. At that hearing,
Defendant admitted that he had willfully and without lawful 1 In six of the seven Ashe County judgments, the only conviction upon which Defendant’s sentence was based was for obtaining property by false pretenses. However, in the seventh Ashe County judgment, Judge Byrd consolidated nine convictions for obtaining property by false pretenses, two counts of misdemeanor larceny, one count of possession of drug paraphernalia, and one count of driving while license revoked for judgment before imposing sentence. -6- excuse violated the terms and conditions of his probation and
requested that he either be allowed to continue on probation, or
in the alternative, that the Wilkes County sentences be served
concurrently with the Ashe County sentences, with this request
being predicated on the theory that the two groups of cases were
connected. Defendant’s mother, Linda McCulloch, who was the
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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. COA13-472 NORTH CAROLINA COURT OF APPEALS Filed: 15 July 2014 STATE OF NORTH CAROLINA
Wilkes County v. Nos. 11 CRS 50057-61, 50065-67, 50499-506, 1078-1084
JOHN DERRICK MCCULLOCH
Appeal by defendant from judgments entered 16 November 2012
by Judge R. Stuart Albright in Wilkes County Superior Court.
Heard in the Court of Appeals 10 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General Tiffany Y. Lucas, for the State.
Gerding Blass, PLLC, by Danielle Blass, for Defendant.
ERVIN, Judge.
Defendant John Derrick McCulloch appeals from judgments
revoking his probation and activating his suspended sentences
based on a determination that he had willfully violated the
terms and conditions of his probation without lawful excuse. On
appeal, Defendant argues that the trial court lacked the
authority to revoke his probation in certain cases on the
grounds that the jurisdictional prerequisites for taking that
action had not been satisfied. After careful consideration of -2- Defendant’s challenge to the trial court’s judgments in light of
the record and the applicable law, we conclude that the trial
court’s judgments should remain undisturbed.
I. Factual Background
A. Wilkes County Judgments
On 7 January 2011, warrants for arrest were issued charging
Defendant with eleven counts of identity theft and six counts of
attempted identity theft. On 17 February 2011, warrants for
arrest charging Defendant with five counts of felonious breaking
or entering, one count of larceny of a firearm, three counts of
felonious larceny, and two counts of injury to real property
were issued. On 21 September 2011, informations charging
Defendant with eight counts of conspiracy to commit identity
theft, two counts of attempted identity theft, five counts of
felonious breaking or entering, one count of larceny of a
firearm, two counts of injury to real property, and four counts
of felonious larceny were executed and subsequently placed in
the relevant court files. On the same date, Defendant entered
pleas of guilty to eight counts of conspiracy to commit identity
theft, two counts of attempted identity theft, five counts of
felonious breaking and entering, one count of larceny of a
firearm, four counts of felonious larceny, and two counts of
injury to real property pursuant to a plea agreement which -3- provided that, in return for Defendant’s guilty pleas, the State
would voluntarily dismiss nine counts of identity theft, three
counts of attempted identity theft, and one count of driving
while license revoked and that Defendant would receive ten
consecutive suspended sentences, be placed on intensive
probation, and make restitution to the victims of his conduct in
an amount to be determined at a later time. After accepting
Defendant’s guilty pleas, Judge Jeanie R. Houston entered
judgments that, when viewed in their entirety, sentenced
Defendant to ten consecutive terms of 9 to 11 months
imprisonment that were each suspended for 36 months on the
condition that Defendant pay the costs, a $250.00 fine,
$1,716.00 in restitution, and a $937.50 attorney’s fee; be
placed on intensive probation; and comply with the usual terms
and conditions of probation.
B. Ashe County Judgments
On 27 January 2011, a warrant for arrest charging Defendant
with possession of a Schedule II controlled substance and
possession of drug paraphernalia was issued. On 28 January
2011, a warrant for arrest charging Defendant with misdemeanor
larceny was issued. On 18 February 2011, warrants for arrest
charging Defendant with two counts of obtaining property by
false pretenses were issued. On 3 March 2011, warrants for -4- arrest charging Defendant with twelve counts of obtaining
property by false pretenses were issued. On 12 June 2011, a
warrant for arrest charging Defendant with misdemeanor larceny
was issued. On 22 September 2011, Defendant entered no contest
pleas to fourteen counts of obtaining property by false
pretenses, one count of felonious possession of a Schedule II
controlled substance, one count of misdemeanor possession of a
Schedule II controlled substance, two counts of misdemeanor
larceny, two counts of writing a worthless check, two counts of
possession of drug paraphernalia, and two counts of driving
while license revoked pursuant to a plea agreement under which
the State agreed to voluntarily dismiss nine counts of obtaining
property by false pretenses and Defendant would receive seven
consecutive suspended sentences, be placed on probation, and pay
restitution. Based upon Defendant’s no contest pleas, Judge
David V. Byrd entered judgments that, viewed in their entirety,
sentenced Defendant to seven consecutive terms of 11 to 14
months imprisonment that were each suspended for a period of 36
months on the condition that Defendant pay the costs, $21,156.60
in restitution, and a $1,125.60 attorney’s fee; be placed on
supervised probation; and comply with the usual terms and -5- conditions of probation.1 Defendant’s probation in these Ashe
County cases was transferred to Wilkes County.
C. Revocation of Defendant’s Probation
On 16 November 2011, Defendant’s probation officer filed
violation reports requesting revocation of Defendant’s probation
in the ten Wilkes County and seven Ashe County cases on the
grounds that Defendant had willfully failed to abide by his
court-ordered curfew requirement, missed multiple appointments
with his probation officer, and failed to make required monthly
restitution and supervision fee payments. On 14 December 2011,
Defendant’s probation officer filed addenda to these violation
reports alleging that Defendant had committed further violations
of the terms and conditions of his probation by failing to abide
by his curfew and leaving the jurisdiction of the court without
permission.
A hearing concerning the allegations advanced in these
violation reports was held before the trial court in Wilkes
County Superior Court on 16 November 2012. At that hearing,
Defendant admitted that he had willfully and without lawful 1 In six of the seven Ashe County judgments, the only conviction upon which Defendant’s sentence was based was for obtaining property by false pretenses. However, in the seventh Ashe County judgment, Judge Byrd consolidated nine convictions for obtaining property by false pretenses, two counts of misdemeanor larceny, one count of possession of drug paraphernalia, and one count of driving while license revoked for judgment before imposing sentence. -6- excuse violated the terms and conditions of his probation and
requested that he either be allowed to continue on probation, or
in the alternative, that the Wilkes County sentences be served
concurrently with the Ashe County sentences, with this request
being predicated on the theory that the two groups of cases were
connected. Defendant’s mother, Linda McCulloch, who was the
alleged victim in certain of the underlying cases, attributed
Defendant’s unlawful conduct and failures to comply with the
terms and conditions of his probation to problems stemming from
drug addiction and requested the trial court to be lenient. At
the conclusion of the revocation hearing, the trial court stated
that, even though Defendant “ha[d] been given chance after
chance after chance after chance,” he had violated the terms and
conditions of his probation when “the ink [was] not even dry on
the judgment” and that the probationary process “didn’t work for
[Defendant] at all.” As a result, the trial court entered
judgments finding that Defendant had wilfully violated the terms
and conditions of his probation without lawful excuse and had
absconded, that his probation should be revoked, and that each
of his seventeen suspended sentences should be activated and
served consecutively. Defendant noted an appeal to this Court
from the trial court’s judgments.2
2 Although this Court filed an opinion reversing the -7- II. Substantive Legal Analysis
In his sole challenge to the trial court’s judgments,
Defendant contends that the trial court lacked the authority to
revoke his probation and activate his suspended sentences in the
Ashe County cases.3 More specifically, Defendant contends that
the trial court lacked jurisdiction over the subject matter of
the Ashe County cases as a result of the fact that the
prerequisites for the revocation of a defendant’s probation set
out in N.C. Gen. Stat. § 7A-271(e) had not been satisfied.
Defendant is not entitled to relief on the basis of this
contention.
A judgment entered by a court which lacks jurisdiction is
void. Stroupe v. Stroupe, 301 N.C. 656, 661, 273 S.E.2d 434,
438 (1981). As a result of the fact that “the issue of a
court’s jurisdiction over a matter may be raised at any time,
even for the first time on appeal or by a court sua sponte,
State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622
revocation of Defendant’s probation and the activation of Defendant’s suspended sentences in the Ashe County cases on 18 March 2014, we withdrew our initial opinion on 3 April 2014 in light of the filing of a motion questioning the factual basis for our initial decision. The present opinion is intended to be a substitute for our earlier decision, which should be deemed to be void and of no effect. 3 As a result of the fact that Defendant has not challenged the validity of the trial court’s decision to revoke his probation and activate his suspended sentences in the Wilkes County cases in his brief, the trial court’s decision in the Wilkes County cases is not properly before us for review. -8- (2008), the fact that Defendant failed to challenge the court’s
jurisdiction over the subject matter of a particular proceeding
before the trial court does not ordinarily stand as a bar to the
assertion of that jurisdictional challenge on appeal. However,
despite the fact that “[a void judgment] neither binds nor bars
any one,” so that “all proceedings founded upon it are
worthless,” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790
(2006) (quotations omitted), “a defendant may not challenge the
jurisdiction over the original conviction in an appeal from an
order revoking his probation and activating his sentence” on the
grounds that such an assertion constitutes an impermissible
collateral attack on the underlying conviction. State v.
Pennell, __ N.C. __, __, __ S.E.2d __, __ (2014). As a result,
while Defendant is entitled to attack the trial court’s
jurisdiction to revoke his probation on appeal without having
raised that issue in the trial court, he is not entitled to
challenge the extent to which the sentencing court had the
authority to impose the underlying probationary judgments by
means of an appeal taken from the revocation of his probation.
According to N.C. Gen. Stat. § 7A-271(e):
The superior court has exclusive jurisdiction over all hearings held pursuant to [N.C. Gen. Stat. §] 15A-1345(e) where the district court had accepted a defendant’s plea of guilty or no contest to a felony under the provisions of [N.C. Gen. Stat. §] -9- 7A-272(c), except that the district court shall have jurisdiction to hear these matters with the consent of the State and the defendant.
As a result of the fact that N.C. Gen. Stat. § 15A-1345(e)
governs the conduct of proceedings convened to address
allegations that a convicted criminal defendant’s probation
should be revoked and the fact that N.C. Gen. Stat. § 7A-272(c)
allows pleas of guilty or no contest to Class H and Class I
felonies to be entered and addressed in the District Court
Division of the General Court of Justice in certain
circumstances, the obvious effect of N.C. Gen. Stat. § 7A-271(e)
is to give the Superior Court Division of the General Court of
Justice exclusive jurisdiction over probation revocation
hearings arising from cases in which the District Court accepted
a defendant’s plea of guilty or no contest pursuant to N.C. Gen.
Stat. § 7A-272(c).
N.C. Gen. Stat. § 7A-272(c) provides that:
With the consent of the presiding district court judge, the prosecutor, and the defendant, the district court has jurisdiction to accept a defendant’s plea of guilty or no contest to a Class H or I felony if:
(1) The defendant is charged with a felony in an information filed pursuant to [N.C. Gen. Stat. §] 15A-644.1, the felony is pending in district court, and the defendant has not been indicted for the offense; or -10- (2) The defendant has been indicted for a criminal offense but the defendant’s case is transferred from superior court to district court pursuant to [N.C. Gen. Stat. §] 15A- 1029.1.
Similarly, N.C. Gen. Stat. § 15A-644.1 provides that “[a]
defendant who pleads guilty or no contest in district court
pursuant to [N.C. Gen. Stat. §] 7A-272(c)(1) shall enter that
plea to an information complying with [N.C. Gen. Stat. §] 15A-
644(b),4 except it shall contain the name of the district court
in which it is filed.” As a result, when read in conjunction
with N.C. Gen. Stat. § 15A-644.1, N.C. Gen. Stat. § 7A-272(c)
authorizes the acceptance of a plea of guilty or no contest to
the commission of a felony offense in the District Court in the
event that the defendant’s case is still pending in the District
Court and an information alleging the commission of the felony
offense is filed or the charges against the defendant have been
transferred from the Superior Court back to the District Court
pursuant to N.C. Gen. Stat. § 15A-1029.1.
The essential argument advanced in Defendant’s brief is
that compliance with N.C. Gen. Stat. § 7A-272(c) is a necessary
4 N.C. Gen. Stat. § 15A-644(b) provides that “[a]n information must contain everything required of an indictment . . . except that the accusation is that of the prosecutor and the provisions of [N.C. Gen. Stat. § 15A-644](a)(5) do not apply,” with the information being required to “contain or have attached the waiver of indictment pursuant to [N.C. Gen. Stat. §] 15A- 642(c).” -11- prerequisite for the invocation of the trial court’s
jurisdiction to revoke a defendant’s probation pursuant to N.C.
Gen. Stat. § 271(e). In other words, Defendant contends that
the Superior Court lacks jurisdiction to revoke a defendant’s
probation pursuant to N.C. Gen. Stat. § 7A-271(e) unless the
original probationary judgments were imposed in compliance with
the provisions of N.C. Gen. Stat. § 7A-272(c). Based upon that
logic, Defendant further contends that the fact that the
felonies to which he pled no contest in Ashe County were charged
by warrants for arrest rather than by informations deprived the
Ashe County District Court of the authority to accept
Defendant’s no contest pleas and, by extension, deprived the
trial court of jurisdiction to revoke his probation in the Ashe
County cases.
Although Defendant asserts that the argument that he has
advanced on appeal constitutes a challenge to the trial court’s
jurisdiction to revoke his probation and activate his suspended
sentences in the Ashe County cases rather than to the validity
of the underlying probationary judgments, we do not find this
logic persuasive. Reduced to its essence, Defendant’s argument
rests on the assertion that the District Court lacked the
jurisdiction to impose the original probationary judgments in
the Ashe County cases given the absence of valid informations -12- charging Defendant with the offenses to which he pled no contest
from the file in the Ashe County cases. In other words,
Defendant’s argument inherently rests upon a challenge to the
District Court’s jurisdiction to impose the original
probationary judgment, which is exactly the type of argument
that Pennell precludes us from considering in connection with an
appeal from an order revoking a convicted criminal defendant’s
probation and activating his suspended sentence. As a result,
given that we lack the authority to entertain the only challenge
that Defendant has advanced in opposition to the trial court’s
probation revocation orders, we have no choice except to affirm
the revocation of Defendant’s probation and the activation of
his suspended sentences.5
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Defendant’s challenge to the trial court’s judgments is not
properly before this Court. As a result, the trial court’s
judgments should, and hereby do, remain undisturbed.6
5 Consistently with the Supreme Court’s holding in Pennell, our decision in this case should not be understood as prejudicing Defendant’s right to seek relief from the sentences imposed in the Ashe County cases through the use of other procedural mechanisms such as the filing of a motion for appropriate relief or a petition for the issuance of a writ of habeas corpus. Pennell, __ N.C. at __, __ S.E.2d at __. -13- AFFIRMED.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).
6 In light of our decision that we lack the authority to entertain Defendant’s challenge to the revocation of his probation and the activation of his suspended sentences in the Ashe County cases, we need not decide the remaining motions that are currently pending in this case and deny them on mootness grounds.