IN THE SUPREME COURT OF NORTH CAROLINA
No. 371PA13
FILED 12 JUNE 2014
STATE OF NORTH CAROLINA
v.
WILLIAM HERBERT PENNELL, IV
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous
decision of the Court of Appeals, ___ N.C. App. ___, 746 S.E.2d 431 (2013), affirming
in part, vacating and remanding in part, and arresting in part judgments entered
on 5 June 2012 by Judge Christopher W. Bragg in Superior Court, Iredell County.
Heard in the Supreme Court on 19 February 2014.
Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy
Attorney General, and Joseph L. Hyde, Assistant Attorney General, for the
State-appellant.
Staples S. Hughes, Appellate Defender, by Jason Christopher Yoder, Assistant
Appellate Defender, for defendant-appellee.
BEASLEY, Justice.
We consider whether, on direct appeal from the activation of a suspended
sentence, a defendant may challenge the jurisdictional validity of the indictment
underlying his original conviction. Because a challenge to the validity of the
original judgment constitutes an impermissible collateral attack, we hold that
defendant’s appeal was not proper. Accordingly, we reverse the decision of the
Court of Appeals with respect to this issue.
STATE V. PENNELL
Opinion of the Court
Defendant William Herbert Pennell pleaded guilty on 2 December 2010 to
two counts of felony breaking or entering, two counts of felony larceny after
breaking or entering, and one count of possession of cocaine. Defendant received
four consecutive sentences of eight to ten months for each of the property offenses
and one sentence of six to eight months for the drug possession conviction. Under a
plea arrangement, defendant’s sentences were suspended and he was placed on
thirty-six months of supervised probation.
On 16 June 2011, defendant’s probation officer filed five probation violation
reports. After a hearing, the trial court modified defendant’s sentences by
extending the length of his probation by twenty-four months. Defendant’s probation
officer filed five additional violation reports on 18 August 2011. On 13 October
2011, the trial court revoked defendant’s probation and activated his sentence on
one count of larceny after breaking or entering in case number 10 CRS 57417. The
trial court modified defendant’s other sentences to add six months of intensive
supervised probation following his release from his activated sentence.
On 3 February 2012, defendant’s probation officer filed four additional
probation violation reports. After a hearing, the trial court entered judgment on 5
June 2012 revoking defendant’s probation and activating his sentences for the
remaining offenses for which he was on probation.
Defendant appealed the 5 June 2012 judgments to the Court of Appeals. In
-2-
STATE V. PENNELL
Opinion of the Court
his appeal defendant first argued that the trial court erred in activating his
sentence for larceny after breaking or entering in case number 10 CRS 57417
because his sentence for this count of larceny had already been activated and served
pursuant to the trial court’s revocation of defendant’s probation on 13 October 2011.
The Court of Appeals agreed. State v. Pennell, ___ N.C. App. ___, ___, 746 S.E.2d
431, 444 (2013). The Court of Appeals concluded that the trial court intended to
revoke defendant’s probation for the count of breaking or entering in case number
10 CRS 57417 rather than the count of larceny after breaking or entering in the
case having the same number, and remanded the judgment and commitment to the
trial court to correct the clerical mistake in its judgment. Id. at ___, 746 S.E.2d at
444.
Defendant’s second argument before the Court of Appeals was that the trial
court lacked subject matter jurisdiction to revoke his probation on the count of
felony larceny in case number 09 CRS 53255 because the original indictment for the
offense was fatally defective. Relying predominantly on this Court’s holding in
State v. Ray, 212 N.C. 748, 194 S.E. 472 (1938), the Court of Appeals held that
defendant’s appeal was proper, determined that the original indictment was
defective, and arrested revocation of defendant’s probation on that count. Pennell,
___ N.C. App. at ___, 746 S.E.2d at 442-44. On 3 October 2013, we allowed the
State’s petition for discretionary review. State v. Pennell, ___ N.C. ___, 748 S.E.2d
534 (2013).
-3-
STATE V. PENNELL
Opinion of the Court
The issue now before this Court is whether a defendant may collaterally
challenge the validity of an underlying indictment by means of an appeal from
revocation of his probation. The State contends that defendant may not challenge
the indictment underlying his conviction in an appeal from a judgment revoking
probation because the appeal constitutes an impermissible collateral attack on the
initial judgment accepted by defendant under his 2 December 2010 guilty plea. In
response, defendant argues that because the original indictment was facially
defective, the trial court lacked subject matter jurisdiction to adjudicate one charge
of larceny, and therefore, the court’s initial judgment is void. Defendant asserts
that a challenge to the trial court’s jurisdiction “may be raised at any time” and that
“a collateral attack is permissible when the underlying judgment is void.”
Defendant contends that it is therefore appropriate to hear a challenge to the trial
court’s jurisdiction over the original conviction and sentence in an appeal from the
probation revocation activating his suspended sentence.
The Court of Appeals agreed with defendant’s arguments and held that
defendant’s appeal was proper. Pennell, ___ N.C. App. at ___, 746 S.E.2d at 442.
Central to its conclusion was this Court’s holding in State v. Ray. Id. at ___, 746
S.E.2d at 439. There, the defendant was indicted for embezzlement but pleaded
guilty to a charge of trespass. Ray, 212 N.C. at 748, 194 S.E. at 472. The
defendant’s sentence was suspended on the condition that he pay specific
remuneration to the trial court for the benefit of individuals we presume to be the
-4-
STATE V. PENNELL
Opinion of the Court
victims of his embezzlement. Id. at 748-49, 194 S.E. at 472-73. After the defendant
failed to comply with these conditions, the trial court ordered that “the jail sentence
imposed by the previous judgment be put into execution.” Id. at 750, 194 S.E. at
473. In response to the defendant’s appeal, this Court concluded that “[t]he
defendant’s motion in arrest of judgment, on account of defect in the bill of
indictment for embezzlement, cannot be sustained, since he was neither tried nor
sentenced under that bill nor for that offense.” Id. at 750, 194 S.E. at 473-74. From
this determination the Court of Appeals concluded that, because this Court
“addressed a defendant’s argument, in an appeal from the revocation of a suspended
sentence, that the indictment for the underlying sentence was defective,” our
precedent demonstrated that such an appeal was properly before the Court and
thus may be addressed on its merits. Pennell, ___ N.C. App. at ___, 746 S.E.2d at
439.
We take this opportunity to address Ray and reemphasize the limitations this
Court has since recognized with respect to challenges to jurisdiction on appeal.
First, this Court in Ray did not squarely address whether a jurisdictional challenge
to an original judgment may be raised in an appeal from the activation of a
suspended sentence. Rather, this Court observed that the defendant’s assertion of
error was baseless because the defendant was not convicted under the indictment
he was attempting to challenge. This brief conclusion by our Court that the
defendant’s appeal lacked merit for this reason is altogether insufficient to support
-5-
STATE V. PENNELL
Opinion of the Court
the weight placed upon it by the Court of Appeals.
Moreover, since deciding Ray this Court has recognized limitations on
challenges to jurisdiction on appeal. “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.” State v. Absher, 329 N.C. 264, 265 n.1, 404 S.E.2d 848, 849 n.1 (1991)
(per curiam). Our inquiry is thus whether defendant’s case is properly before our
appellate courts.
In State v. Holmes, 361 N.C. 410, 646 S.E.2d 353 (2007), this Court addressed
“whether a suspended sentence can be challenged when appealing the trial court’s
order revoking probation and activating the sentence.” Id. at 411, 646 S.E.2d at
354. There the defendant pleaded guilty to second-degree kidnapping, assault
inflicting serious bodily injury, and accessory after the fact to second-degree rape.
Id. He was sentenced in the aggravated range for the kidnapping and assault
charges, but all his sentences were suspended. 361 N.C. at 411-12, 646 S.E.2d at
354. The defendant did not appeal the sentences. Id. at 412, 646 S.E.2d at 354. A
year later, defendant violated the conditions of his probation and his three
sentences were activated. Id. He appealed the activation of his sentences, arguing,
inter alia, that “his sentences for kidnapping and assault were unconstitutionally
aggravated in violation of the United States Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).” Id.
-6-
STATE V. PENNELL
Opinion of the Court
Recognizing the reasoning of prior cases from the Court of Appeals, we held that “a
direct appeal from the original judgment lies only when the sentence is originally
entered.” 361 N.C. at 411, 646 S.E.2d at 354.
In reaching our holding in Holmes, we were persuaded by the reasoning of
the Court of Appeals in State v. Noles, 12 N.C. App. 676, 184 S.E.2d 409 (1971), and
State v. Rush, 158 N.C. App. 738, 582 S.E.2d 37 (2003). Holmes, 361 N.C. at 412-13,
646 S.E.2d at 355. The Court of Appeals in Noles addressed facts similar to those
presently before us: in an appeal from the revocation of his probation, the defendant
in Noles attacked “the validity of the warrant upon which he was originally tried . . .
because there was no affirmative showing on the record that the defendant entered
a plea of guilty understandingly and voluntarily.” Noles, 12 N.C. App. at 678, 184
S.E.2d at 410. The Court of Appeals concluded that the defendant’s appeal was not
proper because “inquiries [when appealing from an order activating a suspended
sentence] are permissible only to determine whether there is evidence to support a
finding of a breach of the conditions of the suspension, or 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, 173 S.E.2d
778 (1970)). The Court of Appeals thus concluded that “[q]uestioning the validity of
the original judgment where sentence was suspended on appeal from an order
activating the sentence is, we believe, an impermissible collateral attack.” Id.
More than thirty years later, the Court of Appeals again addressed similar
-7-
STATE V. PENNELL
Opinion of the Court
facts. The defendant in State v. Rush entered into a plea agreement with the State
in which the defendant “would receive two 24-month suspended sentences.” Rush,
158 N.C. App. at 739, 582 S.E.2d at 38. But the judgment documents suspending
the sentences and signed by the defendant stated that the two sentences being
suspended were “for a minimum term of 24 months and a maximum term of 38
months.” Id. The defendant later violated her probation, and the trial court
activated the sentences as stated in the judgment forms. 158 N.C. App. at 740, 582
S.E.2d at 38. On appeal from the revocation of the defendant’s probation, the Court
of Appeals determined that “by failing to exercise any of her options” to assert that
the judgment entered was inconsistent with her plea agreement, the defendant’s
appeal “amount[ed] to an impermissible collateral attack on the initial judgment.”
Id. at 741, 582 S.E.2d at 39 (citing Noles, 12 N.C. App. at 678, 184 S.E.2d at 410)
(summarizing the defendant’s options to assert error as (1) filing a motion under
N.C.G.S. § 15A-1024 to withdraw her guilty plea based on the judgments being
inconsistent with the plea agreement, (2) appealing within ten days after entry of
the judgments if her grounds of appeal fell under N.C.G.S. § 15A-1444, and (3) filing
a petition for writ of certiorari as permitted under section 15A-1444(e)). In Holmes
this Court summarized the Court of Appeals’ determination in Rush to be that “by
failing to appeal from the original judgment suspending her sentences, the
defendant waived any challenge to that judgment and thus could not attack it in the
appeal of a subsequent order activating her sentence.” Holmes, 361 N.C. at 413,
-8-
STATE V. PENNELL
Opinion of the Court
646 S.E.2d at 355 (citing Rush, 158 N.C. App. at 741, 582 S.E.2d at 39).
In finding Noles and Rush to be persuasive, this Court observed that the
defendant in Holmes could have appealed his initial judgments, but failed to do so.
Id. The Court thus concluded that the defendant’s attempt to subsequently attack
the sentences imposed in those original judgments in an appeal from the order
revoking his probation and activating his sentence was “an impermissible collateral
attack on the original judgments.” Id.
The reasoning this Court found persuasive in Holmes is also persuasive here.
As in Holmes, defendant failed to appeal from his original judgment. He may not
now appeal the matter collaterally via a proceeding contesting the activation of the
sentence imposed in the original judgment.1 As such, defendant’s present challenge
to the validity of his original conviction is improper. Because a jurisdictional
challenge may only be raised when an appeal is otherwise proper, Absher, 329 N.C.
at 265 n.1, 404 S.E.2d at 849 n.1, we hold that a defendant may not challenge the
jurisdiction over the original conviction in an appeal from the order revoking his
probation and activating his sentence. The proper procedure through which
defendant may challenge the facial validity of the original indictment is by filing a
1 State v. Neeley, 307 N.C. 247, 249, 297 S.E.2d 389, 391 (1982), establishes
that a defendant may raise a constitutional claim of right to counsel for the first
time after a suspended sentence has been activated. Id. As we observed in Neeley,
however, our holding there “only addresses those circumstances in which a
defendant seeks to challenge the validity of an original uncounseled prison sentence
at a later time when the prison sentence is activated.” 307 N.C. at 250, 297 S.E.2d
at 391 (emphasis added).
-9-
STATE V. PENNELL
Opinion of the Court
motion for appropriate relief under N.C.G.S. § 15A-1415(b) or petitioning for a writ
of habeas corpus. Our holding here does not prejudice defendant from pursuing
these avenues.
For the reasons stated above, we reverse the decision of the Court of Appeals
on the issue of whether defendant’s appeal may be based solely upon a challenge to
the trial court’s original jurisdiction and instruct the Court of Appeals to reinstate
the judgment of the trial court revoking defendant’s probation on the felony larceny
count in case number 09 CRS 53255. The holding by the Court of Appeals
addressing the trial court’s clerical error in activating a sentence that defendant
had already served is not before this Court and remains undisturbed.
REVERSED IN PART.
-10-