State v. McCulloch

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NO. COA13-472 NORTH CAROLINA COURT OF APPEALS Filed: 18 March 2014 STATE OF NORTH CAROLINA Wilkes County Nos. 11 CRS 50057-61, 50065-67, 50499-506, 1078-1084 v. 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. appeal, Defendant argues that the trial court lacked On the authority to revoke his probation in certain of the cases which are before us at this time on the grounds that the jurisdictional prerequisites for taking that action had not been satisfied. After careful consideration of Defendant s challenges to the trial court s judgments in light of the record -2and the applicable law, we conclude that certain of the trial court s probation revocation judgments should be reversed. 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, properly executed 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 filed. date, Defendant entered guilty pleas to eight On the same 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 provided that, in return for Defendant s guilty pleas, the State would voluntarily dismiss nine counts of -3identity 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. accepting entered Defendant s judgments guilty which, pleas, when Judge viewed Jeanie in R. their After Houston entirety, sentenced Defendant to ten consecutive terms of nine to eleven months imprisonment which 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 possession of drug paraphernalia was issued. substance and On 28 January 2011, a warrant for arrest charging Defendant with misdemeanor larceny was issued. charging Defendant On 18 February 2011, warrants for arrest with two counts false pretenses were issued. arrest charging Defendant of obtaining property by On 3 March 2011, warrants for with twelve property by false pretenses were issued. counts of obtaining On 12 June 2011, a -4warrant for arrest charging Defendant with misdemeanor larceny was issued. pleas to On 22 September 2011, Defendant entered no contest 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 receive by false seven pretenses consecutive and under suspended probation, and pay restitution. which Defendant sentences, be would placed on Based on Defendant s no contest pleas, Judge David V. Byrd entered judgments which, viewed in their entirety, sentenced Defendant to seven consecutive terms of eleven to fourteen months imprisonment that were each suspended for a period of thirty-six months on the condition that Defendant pay the costs, $21,156.60 in restitution, and a $1,125.60 attorney fee; be placed on supervised probation; and comply 1 with the usual terms and conditions of probation.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 -5Defendant s probation in the 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 violation reports was held the allegations before the trial court County Superior Court on 16 November 2012. Defendant admitted that he advanced had willfully in these in Wilkes At that hearing, and without lawful excuse violated the terms and conditions of his probationary judgments and requested that he either be allowed to continue on misdemeanor larceny, one count of possession of drug paraphernalia, and one count of driving while license revoked for judgment. -6probation, 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 McCulloch, who were was connected. the Defendant s alleged victim in mother, certain Linda of the underlying cases, attributed Defendant s unlawful conduct and failures to comply with the terms and conditions of his probationary judgments 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] judgments terms at all. finding and As that conditions a result, Defendant of his had the trial court willfully probationary entered violated judgments the without lawful excuse and had absconded, that his probation should be revoked, and that each of his seventeen suspended should be activated and served consecutively.2 sentences Defendant noted an appeal to this Court from the trial court s judgments. 2 The judgment revoking the probationary sentence that Judge Byrd imposed based upon Defendant s consolidated Ashe County convictions for nine counts of obtaining property by false -7II. Substantive Legal Analysis The sole challenge to the trial court s judgments advanced in Defendant s brief is the assertion that the trial court lacked the authority to revoke his probation in the Ashe County cases. More specifically, Defendant contends that the trial court, which was sitting in Wilkes County Superior 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 271(e) had not been satisfied. N.C. Gen. Stat. § 7A- After carefully reviewing the record and the applicable law, we conclude that the trial court lacked jurisdiction to revoke Defendant s probation in the Ashe County felony cases. A. Standard of Review A trial court lacks the authority to decide a particular case in the absence of jurisdiction over the subject matter of that action. State v. Reinhardt, 183 N.C. App. 291, 292, 644 S.E.2d 26, 27 (2007) (citing In re N.R.M., 165 N.C. App. 294, 297, 598 S.E.2d 147, 149 (2004)). is conferred upon the courts Constitution or by statute. by Subject matter jurisdiction either the North Carolina Harris v. Pembaur, 84 N.C. App. pretenses, two counts of misdemeanor larceny, one count of possession of drug paraphernalia, and one count of driving while license was revoked was entered in Wilkes County File No. 11 CRS 1078. -8666, 667, 353 S.E.2d 673, 675 (1987). Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court jurisdiction. beyond these limits is in excess of its State v. Gorman, __ N.C. App. __, __, 727 S.E.2d 731, 733 (2012) (quoting Allred v. Tucci, 85 N.C. App. 138, 143, 354 S.E.2d 291, 295, disc. review denied, 320 N.C. 166, 358 S.E.2d 47 (1987)). The extent to which a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). [A]n appellate court necessarily conducts a statutory analysis when analyzing whether a trial court has subject matter jurisdiction in a probation conducts a de novo review. revocation hearing, and thus State v. Satanek, 190 N.C. App. 653, 656, 660 S.E.2d 623, 625 (2008). 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 (2008), the fact that Defendant did not advance a particular argument before the trial court does not affect the extent to which we are required to evaluate its validity on -9appeal. On the contrary, the issue of whether the trial court had jurisdiction over the subject matter of an action may be raised at any time during the proceedings, including on appeal, In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006), and on the court s own motion. Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C. App. 414, 421, 248 S.E.2d 567, 571 (1978). 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). A void judgment is in legal effect no judgment. In re T.R.P., 360 N.C. at 590, 636 S.E.2d at 790 (quoting Hart v. Thomasville Motors, Inc., 244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956)). [A void judgment] neither binds nor bars any one, and all proceedings founded upon it are worthless. Id. As a result, [w]hen the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority. State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981) (citations omitted). Although there is some authority from this Court to the effect that a defendant may not lodge a jurisdictional challenge to the original convictions in a probation revocation proceeding, State v. Hunnicutt, __ N.C. App. __, __, 740 S.E.2d 906, 909 (2013); State v. Long, __ N.C. App. __, __, 725 S.E.2d -1071, 72, disc. review denied, 366 N.C. 227, 726 S.E.2d 836 (2012), a panel of this Court has recently held that, since those decisions are in conflict with earlier decisions of the Supreme Court, a [d]efendant may, on appeal from revocation of probation, attack the jurisdiction of the trial court, either directly or collaterally. State v. Pennell, __ N.C. App. __, __, 746 S.E.2d 431, 441, stay granted, __ N.C. __, 747 S.E.2d 247, disc. review granted, __ N.C. __, 748 S.E.2d 534 (2013). Although the Supreme Court has stayed our decision in Pennell, we find the logic set out in Pennell compelling and adopt it as our own. consider As a result, given that we have the authority to the underlying validity convictions of in a jurisdictional reviewing a challenge judgment to revoking the a defendant s probation, we will examine on the merits the issue of whether Defendant s the trial probation jurisdictional defects court lacked in the in the Ashe the authority County underlying cases Ashe to based County convictions. B. Trial Court s Jurisdiction to Revoke Probation N.C. Gen. Stat. § 7A-271(e) provides that: 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. §] revoke on felony -117A-272(c), except that the district court shall have jurisdiction to hear these matters with the consent of the State and the defendant. N.C. Gen. Stat. § 7A-271(e). Gen. Stat. convened § to 15A-1345(e) address As a result of the fact that N.C. governs allegations the conduct that a of proceedings 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 in certain circumstances, the obvious effect of N.C. Gen. exclusive arising Stat. § 7A-271(e) jurisdiction from cases in over which is to give probation the the superior revocation district court court hearings 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 -12(2) Similarly, 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. 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. §] 15A644(b),3 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 division in the event that the defendant s case is still pending in the District Court division 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 division back to the District Court division pursuant to N.C. Gen. Stat. § 15A-1029.1. 3 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. §] 15A642(c). -13The essential argument advanced in Defendant s brief is that compliance with N.C. Gen. Stat. § 7A-272(c) is a necessary prerequisite for the invocation of the trial court s jurisdiction to revoke a defendant s probation pursuant to N.C. Gen. Stat. § 7A-271(e). More specifically, Defendant contends that adequate compliance with the provisions of N.C. Gen. Stat. § 7A-272(c) is a necessary prerequisite to the exercise of the superior court s authority under N.C. Gen. Stat. § 7A-271(e). In light of that understanding, Defendant further contends that the fact that the felonies to which he pled no contest in Ashe County were information authority charged deprived to accept by the warrants Ashe for arrest County Defendant s no rather District contest Court pleas than by of the and, by extension, deprived the trial court of jurisdiction to revoke his probation in the Ashe County cases. Although Defendant has described his challenge to the revocation of his probation in the Ashe County cases as directed toward the trial court s jurisdiction to revoke his probation rather than as a challenge to the validity of his convictions in the Ashe County cases in an effort to avoid having his claim barred on the basis of our pre-Pennell decisions holding that a defendant convictions was on not entitled jurisdictional to collaterally grounds in attack response to his an -14allegation that he had violated the terms and conditions of his probation, the ultimate issue raised by his attack upon the revocation of assertion that jurisdiction felony cases his probation the to Ashe accept and in the County Ashe District his no the underlying enter County contest Court pleas in cases is lacked the probationary an the pending judgments because the absence of a valid information deprived it of the jurisdiction to do so. in Pennell and the As a result, given our recent decision jurisdictional nature of Defendant s challenge to the revocation of his probation in the Ashe County felony cases, we will focus the remainder of this opinion on the substance of Defendant s jurisdictional argument rather than upon the exact argument that he actually makes. The only statutory provisions authorizing judges of the District Court division to accept guilty or no contest pleas in felony cases are N.C. sections and subsections. Gen. Stat. § 7A-272(c) and related As we have already noted, a judge of the District Court is authorized to enter judgment following a defendant s plea of guilty or no contest to the commission of a Class H or a Class I felony. N.C. Gen. Stat. § 7A-272(c). However, N.C. Gen. Stat. § 7A-272(c) clearly provides that, as a prerequisite for the entry of such a plea, a valid information must be filed in the event that the cases in question remain in -15the District Court division or a valid order transferring the case from the Superior Court division to the District Court division must be entered pursuant to N.C. Gen. Stat. § 15A1029.1 in the event that the cases in question are pending in the Superior Court division. As a result, since the only statutory provisions authorizing the acceptance of guilty or no contest pleas to felony offenses in the District Court division either assume or require the return of a bill of indictment or the filing of an information, since an indictment was never returned and an information was never filed in the Ashe County cases, and since an act of the Court beyond [statutorily established] limits is in excess of its jurisdiction in the event that the court s jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, Gorman, __ N.C. App. at __, 727 S.E.2d at 733, we conclude that the Ashe County District Court lacked the jurisdiction to accept Defendant s pleas and enter the underlying probationary judgments in the Ashe County felony cases. The conclusion that we reach with respect to this jurisdictional issue is fully consistent with the basic legal principles governing the manner in which the trial divisions of -16the General Court of Justice obtain jurisdiction over felony cases. It jurisdiction is hornbook that a law criminal that it offense charged in a warrant or indictment. is an should essential be of sufficiently State v. Stokes, 274 N.C. 409, 411, 163 S.E.2d 770, 772 (1968) (citations omitted); see also McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17-18 (1966) (stating that [t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation, so that, [i]n the absence of an accusation[,] the court acquires no jurisdiction whatever, and if it assumes jurisdiction a trial and conviction are a nullity ) (quoting 42 C.J.S. Indictments omitted). and Informations § 1) (other citations A court has no authority to accept a plea to a charge until it has properly acquired jurisdiction, with [a] plea of guilty, standing alone, [being insufficient to] waive a jurisdictional defect. State v. Brown, 21 N.C. App. 87, 88, 202 S.E.2d 798, 798 (1974) (citing Stokes, 274 N.C. at 412, 163 S.E.2d at 772). According to N.C. Const. art. I, § 22, no person shall be put to answer presentment, initiated represented or in by any criminal impeachment, District counsel, charge [e]xcept Court, may, but in although under such by indictment, misdemeanor any cases person, regulations as when the -17General Assembly shall prescribe, waive indictment in noncapital cases. Stat. As a result, the General Assembly has enacted N.C. Gen. § 15A-923(a), which provides that [t]he pleading in felony cases and misdemeanor cases initiated in the superior court division must be a bill of indictment, unless there is a waiver of the bill of indictment as provided in [N.C. Gen. Stat. §] 15A-642, 4 information. has ensured in which case the pleading must be an As we have already noted, the General Assembly compliance with N.C. Const. art. I, § 22, in instances in which a guilty or no contest plea to a Class H or Class I felony is entered in the District Court division by requiring that such pleas be taken pursuant to either N.C. Gen. Stat. § 7A-272(c)(1), which requires the filing of an information, or N.C. Gen. Stat. § 7A-272(c)(2), which requires a transfer order entered pursuant to N.C. Gen. Stat. § 15A-1029.1 and assumes that a bill of indictment has been returned. As a result, since either a valid indictment or a valid information is necessary to permit the taking of a guilty plea to a Class H or Class I felony in the District Court division, since neither of the required charging instruments was ever returned or filed in this case, and since neither a tendering of a guilty plea by 4 According to N.C. Gen. Stat. § 15A-642(c), [w]aiver of indictment must be in writing signed by the defendant and his attorney, and be attached to or executed upon the bill of information. -18a defendant, nor the tendering to the trial court of an unsigned waiver, could be considered sufficient waivers of a defendant s right to a formal indictment, State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (footnoted citations omitted), disc. review improvidently granted, 349 N.C. 289, 507 S.E.2d 38 (1998), we are compelled to conclude that the Ashe County District Court lacked the jurisdiction to accept Defendant s no contest pleas to the felony offenses that underlie the trial court s revocation orders, thereby rendering all proceedings[, including the present probation revocation proceedings,] founded upon [them] worthless. In re T.R.P., 360 N.C. at 590, 636 S.E.2d at 790; see also Stroupe, 301 N.C. at 662, 273 S.E.2d at 438 (stating that, when [a judgment] appears to be void, it may and will be ignored everywhere, and treated as a mere nullity (citation omitted)); State v. Cassada, 6 N.C. App. 629, 630-31, 170 S.E.2d 575, 576 (1969) (holding that, since the defendant had not been indicted for the offense of receiving stolen property, the acceptance of his plea of guilty was improper and the resulting judgment was a nullity). As a result, since Judge Byrd lacked jurisdiction over Defendant s no contest pleas in the Ashe County felony cases, the trial court lacked authority to revoke Defendant s probation in those cases. III. Conclusion -19Thus, for the reasons set forth above, we conclude that the trial court erred by revoking Defendant s probation in the Ashe County felony cases. On the other hand, given that Judge Houston had jurisdiction to enter the Wilkes County judgments, that Judge Byrd had jurisdiction to sentence Defendant in the Ashe County misdemeanor cases, and that Defendant has not advanced any challenge to the revocation of his probation in either the Wilkes County cases or the Ashe County misdemeanor cases, we have no basis for overturning the probation revocation judgments relating to those cases. As a result, the Wilkes County probation revocation judgments should be, and hereby are, affirmed and the judgments revoking Defendant s probation in the Ashe County cases should be, and hereby are, vacated, with the exception of the probation revocation judgment entered in Wilkes County File No. 11 CRS 1078, which is affirmed in part, vacated in part, and remanded for further proceedings not inconsistent with this opinion in part.5 AFFIRMED IN PART; VACATED IN PART; AND REMANDED IN PART. Judges ROBERT N. HUNTER,JR., and DAVIS concur. 5 The specific issue to be addressed on remand in File No. 11 CRS 1078 is the impact of our decision that there is no defect in the portion of the judgment entered in that case relating to the revocation of Defendant s probation in the Ashe County misdemeanor cases which were consolidated for judgment with various Ashe County felony convictions.

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