State v. Simmons

811 S.E.2d 711, 258 N.C. App. 141
CourtCourt of Appeals of North Carolina
DecidedFebruary 20, 2018
DocketCOA16-1065-2
StatusPublished

This text of 811 S.E.2d 711 (State v. Simmons) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Simmons, 811 S.E.2d 711, 258 N.C. App. 141 (N.C. Ct. App. 2018).

Opinion

ELMORE, Judge.

*141 On 16 May 2016, Walter Columbus Simmons (defendant) pled guilty to aggravated felony death by vehicle (AFDV) and felony hit and run (FHR). The judgment, however, inaccurately reflected that defendant pled guilty to felony serious injury by vehicle instead of FHR. Defendant later petitioned this Court to issue a writ of certiorari to review issues *142 pertaining to his guilty plea. See State v. Simmons , No. 16-1065, 2017 WL 3481296 at *2, 803 S.E.2d 701 , (N.C. App. Aug. 15, 2017) (unpublished). We deemed meritorious only one of those issues, a jurisdictional challenge to the sufficiency of the AFDV indictment, and the State conceded that indictment was fatally defective under the authority of this Court's decision in State v. Brice , --- N.C. App. ----, 786 S.E.2d 812 (2016), rev'd , --- N.C. ----, 806 S.E.2d 32 (2017). Id. at *2, 803 S.E.2d 701 . Accordingly, we allowed in part defendant's petition for the limited purpose of reviewing that sole issue and addressing the clerical error regarding the offenses to which defendant pled guilty. Id. at *2, 803 S.E.2d 701 .

In Brice , this Court held that the State's failure to comply with N.C. Gen. Stat. § 15A-928 's special-pleading requirement-that is, when a prior conviction or convictions constitute an element of a greater offense, that prior conviction or those convictions must be listed on a special indictment or information, or in a separate count-constituted a fatal jurisdictional defect. --- N.C. App. at ----, 786 S.E.2d at 815 (citing State v. Williams , 153 N.C. App. 192 , 568 S.E.2d 890 (2002), disc. rev. improvidently allowed , 357 N.C. 45 , 577 S.E.2d 618 (2003), and overruled by Brice , --- N.C. at ---- n.4, 806 S.E.2d at 40 n.4 ). The Brice panel thus vacated the defendant's habitual misdemeanor larceny conviction and remanded for entry of a judgment and resentencing on the lesser offense of misdemeanor larceny. Id. Here, the State similarly violated N.C. Gen. Stat. § 15A-928 by including a prior conviction of driving while impaired, an element of AFDV, on defendant's AFDV indictment. Simmons , at *2, 803 S.E.2d 701 . Accordingly, under Brice , we vacated defendant's AFDV conviction and remanded for entry of a judgment and resentencing on the lesser offense of felony death by vehicle (FDV). Id. at *2, 803 S.E.2d 701 . We also instructed the trial court on remand to correct a clerical error in its judgment. Id. at *2, 803 S.E.2d 701 ("Although the plea arrangement and plea hearing transcript reflect that defendant pled guilty to FHR, see N.C. Gen. Stat. § 20-166 (a) (2015), the judgment reflects that he pled guilty to felony serious injury by vehicle, see N.C. Gen. Stat. § 20-141.4 (a3) (2015).").

On 28 August 2017, the State filed a petition for a writ of supersedeas and a motion for a temporary stay with the Supreme Court of North Carolina. On 15 September 2017, the State filed a petition for discretionary review. On 28 September 2017, defendant filed a response to the State's petition for discretionary review and a conditional request for discretionary review of an additional issue. On 7 December 2017, our Supreme Court dissolved the temporary stay, denied the State's petition for a writ of supersedeas , denied defendant's conditional petition for discretionary review, and allowed the State's petition for discretionary *143 review for the limited purpose of remanding the case to this Court for reconsideration of our decision in Simmons in light of its decision in State v. Brice , --- N.C. ----, 806 S.E.2d 32 (2017), rev'g --- N.C. App. ----, 786 S.E.2d 812

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Related

State v. Williams
568 S.E.2d 890 (Court of Appeals of North Carolina, 2002)
State v. Brice
786 S.E.2d 812 (Court of Appeals of North Carolina, 2016)
State v. Brice
806 S.E.2d 32 (Supreme Court of North Carolina, 2017)
State v. Williams
577 S.E.2d 618 (Supreme Court of North Carolina, 2003)
State v. Simmons
803 S.E.2d 701 (Court of Appeals of North Carolina, 2017)

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Bluebook (online)
811 S.E.2d 711, 258 N.C. App. 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simmons-ncctapp-2018.