State v. Messer
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-596 NORTH CAROLINA COURT OF APPEALS Filed: 18 November 2014 STATE OF NORTH CAROLINA v. Buncombe County Nos. 12 CRS 908 12 CRS 57868-72 GREGORY SCOTT MESSER, Defendant. Appeal by defendant from judgments entered 23 January 2014 by Judge J. Thomas Davis in Buncombe County Superior Court. Heard in the Court of Appeals 20 October 2014. Attorney General Roy Cooper, by Special General Durwin P. Jones, for the State. Deputy Attorney Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant. GEER, Judge. Defendant revoking his Gregory probation Scott and Messer activating appeals from suspended judgments sentences he originally received more than a year earlier as a result of a plea agreement. Defendant's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 -2(1985). own Defendant subsequently filed written arguments on his behalf in which he primarily argued that the bills of information charging him with the crimes to which he pled guilty were fatally defective and, as a result, the trial court lacked jurisdiction to enter the original judgments for those crimes. However, because no appeal is pending judgments, defendant may not with respect to collaterally attack those them by challenging the jurisdiction of the trial court that entered them. We decline to address most of defendant's arguments and, therefore, affirm. Facts On 6 September 2012, defendant pled guilty to three counts of obtaining property by false pretenses, two counts of felony larceny, and one count of attempted identity theft. In accordance with a plea agreement, the trial court consolidated the charges into three judgments, sentenced defendant to three consecutive terms of 11 to 23 months imprisonment, suspended his terms of imprisonment, and placed him on supervised probation for 36 months. Defendant did not appeal those judgments. On 15 January 2013, probation violation reports were filed alleging probation. that defendant violated the conditions of his On 4 April 2013, the trial court entered an order finding defendant in violation of his probation and imposed a -3Confinement in Response to Violation ("CRV") for a period of 90 days pursuant to N.C. Gen. Stat. § 15A–1344(d2) (2013). On 10 alleging July that probation. 2013, probation defendant reports violated the were again conditions filed of his The reports alleged that defendant: (1) absconded; (2) was in arrears on the monetary conditions of his probation; and (3) had failed to attend a required 2014, the trial court substance abuse assessment. On 23 January held a violation hearing in Buncombe County Superior Court. probation Defendant admitted to all three alleged violations of his probation, and the trial court found that terms of his probation. judgments revoking suspended sentences. defendant willfully violated the Accordingly, the trial court entered defendant's probation and activating his Defendant timely appealed to this Court. Discussion Counsel appointed to represent defendant on appeal has represented to the Court that he has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Defendant's appellate counsel has shown to the satisfaction of this Court that he has complied with the requirements of Anders and Kinch -4by advising defendant of his right to file written arguments with this Court and providing him with the documents necessary for him to do so. Defendant has in fact submitted written arguments on his own behalf with this Court. He does not specifically challenge the in trial rather, court's contends decision that the revoking bills of his probation, information but, originally charging him with larceny were fatally defective because they failed to allege essential elements of the offense. Defendant additionally argues that the bills of information were fatally defective because they failed to allege factors in aggravation, and, consequently, the trial court did not have jurisdiction to impose aggravated sentences. "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." 265 n.1, 404 S.E.2d 848, State v. Absher, 329 N.C. 264, 849 n.1 (1991) (per curiam). Accordingly, "a defendant may not challenge the [trial court's] jurisdiction over the original conviction[s] in an appeal from the order revoking his probation and activating his sentence." State v. Pennell, ___ N.C. ___, ___, 758 S.E.2d 383, 387 (2014). Here, defendant's attack on the original judgments constitutes -5an impermissible collateral attack. See id. at ___, 758 S.E.2d at 387. Defendant also claims that his trial and probation attorneys provided ineffective assistance of counsel by failing to challenge the defective bills of information. To successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two prong test. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)). The "proper procedure" to challenge the bills of information in this case would have been for counsel to file "a motion for appropriate relief under N.C.G.S. § 15A–1415(b) or [to] petition[] for a writ of habeas corpus." at ___, 758 S.E.2d at 387. Here, Pennell, ___ N.C. therefore, defendant's probation counsel could not raise issues concerning the bills of information at the revocation hearing. Defendant has, -6therefore, failed to meet his burden of showing that his counsel rendered ineffective assistance in the probation hearing. To the extent that defendant argues his trial counsel who advised him to plead guilty provided ineffective assistance, we decline to review this argument. As the Supreme Court noted in Pennell, "defendant failed to appeal from his original judgment" and "may not now appeal the matter collaterally via a proceeding contesting the activation original judgment." In accordance of the sentence imposed in the examined the Id. at ___, 758 S.E.2d at 387. with Anders, we have fully record to determine whether any issues of arguable merit appear therefrom. error. We have been unable to find any possible prejudicial Accordingly, we affirm the defendant's probation. Affirmed. Judges CALABRIA and McCULLOUGH concur. Report per Rule 30(e). judgments revoking
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
