State v. Smith

• Court: Court of Appeals of North Carolina
• Decided: February 4, 2014
• Docket: 13-742
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-742 NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Cabarrus County Nos. 09 CRS 7222-24, 704463, 709818, 710308 YOSHEIKA CHARMAINE SMITH

Appeal by Defendant from judgment entered 7 March 2013 by

Judge Tanya T. Wallace in Cabarrus County Superior Court. Heard

in the Court of Appeals 21 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General Thomas E. Kelly, for the State.

Amanda S. Zimmer for Defendant.

STEPHENS, Judge.

I. Procedural History and Evidence

This appeal arises from the revocation of Defendant

Yosheika Charmaine Smith’s probation. On 24 August 2009,

Defendant was indicted for possession with intent to sell

cocaine (two counts), selling cocaine, delivering cocaine, and

selling or delivering cocaine near a playground. Following -2- Defendant’s 24 February 2011 Alford plea to the aforementioned

charges and to three counts of driving with a revoked license,

the trial court entered a consolidated judgment which imposed a

suspended prison sentence of 29 to 44 months. As a result,

Defendant was placed on supervised probation for 24 months.

Less than five months later, Defendant’s probation officer

filed a report alleging that Defendant had violated four

conditions of her probation. On 1 December 2011, after finding

that Defendant committed three of the alleged violations, the

trial court modified Defendant’s probation, found her in

contempt, and ordered her to serve a thirty-day jail sentence.

Another violation report was filed on 28 November 2012,

which alleged that Defendant was in arrears on her required

court payments, failed to complete assigned community service,

and had again been convicted of driving with a revoked license.

Defendant admitted these violations at her 4 March 2013 hearing.

After finding that Defendant had “violated her supervised

probation in each and every way cited[,]” the trial court

entered a 7 March 2013 judgment revoking Defendant’s probation

and activating her suspended sentence of 29 to 44 months of -3- imprisonment. From the 7 March 2013 judgment entered upon

revocation of her probation, Defendant appeals.1

II. Discussion

Defendant brings forward two arguments on appeal: (1) that

the trial court lacked jurisdiction to revoke her probation for

selling/delivering cocaine near a playground because the

underlying indictment on that charge is fatally defective and

(2) that the trial court abused its discretion by revoking her

probation. As discussed herein, we vacate both the original and

probation revocation judgments and remand for resentencing.

Defendant argues that the trial court lacked jurisdiction

to revoke her probation and activate her sentence on the charge

of selling/delivering cocaine near a playground because the

indictment for that offense is fatally defective. Because

Defendant attacks the validity of the underlying judgment

against her, we must first determine whether this issue is

properly before us.

1 On 11 July 2013, Defendant filed a Motion for Appropriate Relief (“MAR”) in this Court, asking that her sentence for selling/delivering cocaine near a playground be vacated because the judgment on that charge was entered upon a defective indictment. As Defendant makes the same argument in her brief, we dismiss her motion and address the issue in this opinion. -4- Over forty years ago, in State v. Noles, a defendant

challenged the revocation of his probation by arguing that his

guilty plea to the underlying offenses which formed the basis of

the original judgment suspending his sentence was not entered

understandingly and voluntarily. 12 N.C. App. 676, 678, 184

S.E.2d 409, 410 (1971). This Court found that when a defendant

appeals from an order activating a suspended sentence,

“inquiries are permissible only to determine [(1)] whether there

is evidence to support a finding of a breach of the conditions

of the suspension, or [(2)] whether the condition which has been

broken is invalid because it is unreasonable or is imposed for

an unreasonable length of time.” Id. (citing State v. Caudle,

276 N.C. 550, 553, 173 S.E.2d 778, 781 (1970)). As a result,

this Court held that the defendant’s attempt to question “the

validity of the original judgment where sentence was suspended

on appeal from an order activating [his] sentence [constituted]

an impermissible collateral attack.” Id.

More recently, this Court has cited the general rule

enunciated in Noles to dismiss several appeals challenging the

trial court’s jurisdiction to revoke probation. In State v.

Long, the defendant appealed from revocation of his probation

and challenged the trial court’s jurisdiction to enter the -5- original judgment by arguing that “the trial court lacked

jurisdiction to accept his [guilty] plea and to suspend and

later activate the sentences . . . because [he] was not indicted

on these offenses and did not effectively waive the State’s

responsibility to charge him by a bill of indictment.” __ N.C.

App. __, __, 725 S.E.2d 71, 72, disc. review denied, 366 N.C.

227, 726 S.E.2d 836 (2012). Applying Noles, this Court refused

to reach the defendant’s argument, reasoning that

[the] defendant could have appealed his 2 July 2010 judgments as a matter of right or by petition in accordance with the procedures set forth in our statutes and appellate rules. However, because [the] defendant did not timely appeal by right or by petition from the 2 July 2010 judgments entered upon his guilty plea and only now attempts to attack these sentences imposed and suspended in 2010 in an appeal from the 7 March 2011 judgments revoking his probation, we conclude, consistent with three decades of Court of Appeals[’] precedent, that this challenge is an impermissible collateral attack on the original judgments. Accordingly, this appeal must be dismissed.

Id. at __, 725 S.E.2d at 73 (citations, internal quotation

marks, and alterations omitted).

In State v. Hunnicutt, the defendant argued that “the trial

court lacked jurisdiction to revoke his probation in two of his

cases because the indictments underlying those offenses [were]

facially defective, and thus invalid.” __ N.C. App. __, __, 740 -6- S.E.2d 906, 909 (2013). The Court characterized the defendant’s

jurisdictional challenge in the following manner:

A valid bill of indictment is essential to the jurisdiction of the Superior Court to try an accused for a felony and have the jury determine his guilt or innocence, and to give authority to the court to render a valid judgment. However, while it is true that a defendant may challenge the jurisdiction of a trial court, such challenge may be made in the appellate division only if and when the case is properly pending before the appellate division. Thus, a defendant on appeal from an order revoking probation may not challenge his adjudication of guilt, as questioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is an impermissible collateral attack.

[The] defendant contends that a challenge to the validity of an indictment, and thus the subject matter jurisdiction of the trial court, is not subject to the foregoing analysis, due to our Supreme Court’s longstanding observation that a challenge to an 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). However, we read Wallace and the other cases cited by [the] defendant as addressing the question of whether a challenge to an indictment must be preserved at the trial level in order to be raised on direct appeal. This is a different question than the one presented by the instant case, in which [the] defendant attempts to challenge the jurisdictional validity of an underlying judgment against him long after the time for perfection of an appeal of that judgment has expired. -7- Id. (some citations, internal quotation marks, some brackets,

and ellipses omitted). Relying on Long and Noles, this Court

held that the defendant’s “argument [was] not properly before

[it] on appeal from a judgment revoking probation and activating

his suspended sentences.” Id. at __, 740 S.E.2d at 910.

However, in a recent opinion marshaling the case law on

collateral attacks on judgments in probation revocation appeals,

a panel of this Court concluded that “Noles [was] applied in

both Long and Hunnicutt in a manner inconsistent with our

Supreme Court precedent.” See State v. Pennell, __ N.C. App. __,

__, 746 S.E.2d 431, 439, supersedeas and disc. review allowed,

__ N.C. __, 748 S.E.2d 534 (2013). The central issue in Pennell

was whether the defendant could challenge the trial court’s

jurisdiction to revoke his probation on grounds that “the

underlying indictment for his conviction of larceny after

breaking or entering . . . was fatally defective.” Id. at __,

746 S.E.2d at 443. After a thorough discussion of the pertinent

case law, the Pennell court held that a “[d]efendant may, on

appeal from revocation of probation, attack the jurisdiction of

the trial court, either directly or collaterally.” Id. at __,

746 S.E.2d at 441 (emphasis added). As a backdrop to its

holding, the Court explained: -8- Both our Supreme Court and this Court, in opinions predating Long and Hunnicutt, have addressed issues concerning the jurisdiction of the trial court in appeals from probation revocation. . . . We are bound by precedent of our Supreme Court and, because this Court may not overrule its own opinions, we are also bound by the earlier opinions of this Court that conflict with Long and Hunnicutt.

Id. (citations omitted).

Pennell undertakes an exhaustive review and sound analysis

of the “often contradictory” case law governing a defendant’s

“appeal from revocation of probation[,]” and we see no need to

repeat that discussion here. Id. at __, 746 S.E.2d at 433.

Furthermore, the challenge in the instant case, as in Pennell,

is to the trial court’s jurisdiction to revoke probation when

the underlying judgment was entered upon an allegedly fatally

defective indictment. Accordingly, we conclude that Pennell and

the precedent upon which it relies compel us to reach the merits

of Defendant’s argument. See In re Appeal from 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.”). -9- As noted above, Defendant argues that the underlying

indictment for her conviction of selling/delivering cocaine near

a playground is fatally defective. At the time Defendant was

charged, certain drug offenses committed on “property that is a

public park or within 1,000 feet of the boundary of real

property that is a public park” constituted Class E felonies.

N.C. Gen. Stat. § 90-95(e)(10) (2007). Defendant contends that

the indictment on this charge “fails to allege [that] the sale

or delivery took place in a public park and fails [to name] the

individual to which the controlled substance was sold or

delivered.” We agree that Defendant’s indictment on this charge

was fatally defective.

The superior court’s jurisdiction cannot rest upon an

invalid indictment. “[O]ur Constitution requires a bill of

indictment, unless waived, for all criminal actions originating

in the Superior Court, and a valid bill is necessary to vest the

court with authority to determine the question of guilt or

innocence.” State v. Bissette, 250 N.C. 514, 515, 108 S.E.2d

858, 859 (1959). It is well settled that an indictment for the

sale or delivery of a controlled substance must name the person

to whom the defendant allegedly sold or delivered the narcotics

or, in the alternative, allege that the name of the person is -10- unknown. State v. Bennett, 280 N.C. 167, 168, 185 S.E.2d 147,

148 (1971); Bissette, 250 N.C. at 517, 108 S.E.2d at 861 (“Where

a sale is prohibited, it is necessary, for a conviction, to

allege in the bill of indictment the name of the person to whom

the sale was made or that his name is unknown, unless some

statute eliminates that requirement.”).

Here, Defendant was charged with selling or delivering

cocaine near a playground as follows:

The Jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above, the defendant named above unlawfully, willfully, and feloniously did commit an offense under North Carolina General Statute 90-95(a)(1) of sell and deliver, a controlled substance Cocaine, within 1,000 feet of the real property boundary of Concord Chase Apartment’s play ground [sic].

There is no indication in the indictment or the record as to

whether the “Concord Chase Apartment’s play ground [sic]” is a

public park under section 90-95(e)(10).2 However, we need not

2 A previous version of the statute provided that “[a]ny person 21 years of age or older who commits an offense under G.S. 90– 95(a)(1) on property that is a playground in a public park or within 300 feet of the boundary of real property that is a playground in a public park shall be punished as a Class E felon.” See N.C. Gen. Stat. § 90-95(e)(10)(2005). The term “playground” was defined as “any outdoor facility . . . intended for recreation open to the public.” Id. However, the General Assembly amended section 90–95(e)(10) to remove the word -11- make this determination. The indictment alleges neither the name

of the person to whom Defendant allegedly sold cocaine nor that

the name of the person is unknown. “Lacking either of these

allegations, the indictment [charging Defendant with

selling/delivering cocaine near a playground] is fatally

defective and cannot sustain the [underlying] judgment in this

case.” State v. Long, 14 N.C. App. 508, 510, 188 S.E.2d 690, 691

(1972). Thus, “[t]he trial court [had] no jurisdiction to

convict or sentence Defendant for [this] . . . charge[.]”

Pennell, __ N.C. App. at __, 746 S.E.2d at 444. We therefore

vacate the 24 February 2011 judgment which was entered upon

Defendant’s consolidated convictions and remand to the trial

court for entry of judgment and resentencing on Defendant’s

remaining convictions: possession with intent to sell cocaine

(two counts), selling cocaine, delivering cocaine, and driving

with a revoked license (three counts). See State v. Wortham, 318

N.C. 669, 674, 351 S.E.2d 294, 297 (1987) (“[W]e think the

better procedure is to remand for resentencing when one or more

but not all of the convictions consolidated for judgment has

been vacated.”).

“playground” and the sentence defining “playground.” See 2007 N.C. Sess. Laws ch. 375, §§ 1-2. -12- Further, we must also vacate the judgment revoking

Defendant’s probation. A “trial judge is required by the

Structured Sentencing Act to enter judgment on a sentence for

the most serious offense in a consolidated judgment[.]” State

v. Tucker, 357 N.C. 633, 637, 588 S.E.2d 853, 855 (2003); N.C.

Gen. Stat. § 15A-1340.15(b) (2011) (“The judgment shall contain

a sentence disposition specified for the class of offense and

prior record level of the most serious offense, and its minimum

sentence of imprisonment shall be within the ranges specified

for that class of offense and prior record level[.]”). Here,

Defendant’s conviction for sell/deliver cocaine near a

playground pursuant to N.C. Gen. Stat. § 90-95(e)(10) was a

Class E felony, the most serious offense of those consolidated

for judgment by the trial court. Thus, Defendant’s sentence was

entered upon her conviction for sell/deliver near a playground,

a conviction based upon a fatally flawed indictment.

“A sentence based upon a conviction supported by a fatally

defective indictment is a nullity and, therefore, not a valid

sentence.” Pennell, __ N.C. App. at __, 746 S.E.2d at 441. In

turn,

having no jurisdiction to convict or sentence Defendant for this . . . charge, [the trial court] was equally without jurisdiction to revoke probation on a -13- conviction that did not legally exist, or to activate a sentence never legally imposed. Because the trial court lacked jurisdiction to activate any sentence imposed . . . , activation of that sentence is also a nullity. Defendant cannot have violated the probation terms of a suspended sentence which was void. Accordingly, we also vacate the judgment revoking Defendant’s probation.

Id. at __, 746 S.E.2d at 444.

VACATED and REMANDED FOR RESENTENCING.

Judges GEER and ERVIN concur.

Report per Rule 30(e).