An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-742-2
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 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. Unpublished opinion
filed 4 February 2014. Petition for discretionary review
allowed by the North Carolina Supreme Court for remand to this
Court for reconsideration 12 June 2014.
Attorney General Roy Cooper, by Assistant Attorneys General
Thomas E. Kelly and Joseph L. Hyde, for the State.
Amanda S. Zimmer for Defendant.
STEPHENS, Judge.
Procedural History
This opinion is the second filed by this panel in Defendant
Yosheika Charmaine Smith’s appeal from the revocation of her
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probation. On 24 August 2009, Defendant was indicted for two
counts of possession with intent to sell cocaine, and one count
each of selling cocaine, delivering cocaine, and selling or
delivering cocaine near a playground. On 24 February 2011,
pursuant to a plea agreement with the State, Defendant entered
an Alford plea to those charges and to three counts of driving
with a revoked license. Pursuant to the agreement, the State
dismissed five other charges pending against Defendant,
including speeding, failure to wear a seatbelt, and driving
while license revoked. The trial court entered a consolidated
judgment which imposed a suspended prison sentence of 29 to 44
months and placed Defendant on supervised probation for 24
months.1
A violation report filed on 28 November 2012 alleged three
violations of the conditions of Defendant’s probation, each of
which Defendant admitted at a March 2013 hearing. After finding
that Defendant had “violated her supervised probation in each
and every way cited[,]” on 7 March 2013, the trial court entered
1
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.
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judgment revoking Defendant’s probation and activating her
suspended sentence. From that judgment, Defendant appealed,
arguing that the trial court (1) lacked jurisdiction to revoke
her probation for selling or delivering cocaine near a
playground because the underlying indictment on that charge was
fatally defective and (2) abused its discretion by revoking her
probation. On 11 July 2013, Defendant filed a motion for
appropriate relief (“MAR”) pursuant to N.C. Gen. Stat. § 15A-
1415, again raising the indictment issue and asking that her
sentence for the sale or delivery of cocaine near a playground
be vacated. In a unanimous, unpublished opinion, we held that
Defendant’s attack on the validity of the underlying judgment
against her was properly before us, citing this Court’s decision
in State v. Pennell, __ N.C. App. __, 746 S.E.2d 431 (2013), and
further concluded that the challenged indictment was fatally
flawed. State v. Smith, __ N.C. App. __, 757 S.E.2d 523 (2014)
(unpublished), available at 2014 N.C. App. LEXIS 140. As a
result, we vacated both Defendant’s original and probation
revocation judgments and remanded for resentencing. Because the
indictment issue was addressed and resolved in the opinion, we
dismissed Defendant’s MAR.
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By order entered 12 June 2014, the North Carolina Supreme
Court allowed the State’s petition for discretionary review for
the limited purpose of remanding to this Court for
reconsideration in light of its decision in State v. Pennell, __
N.C. __, 758 S.E.2d __ (June 12, 2014). By order of the Chief
Judge entered 16 June 2014, this panel was reconvened to review
the order of the Supreme Court. On the same date, Defendant
filed in this Court a motion to reconsider her 11 July 2013 MAR.
The State filed its response to Defendant’s motion to reconsider
her MAR on 26 June 2014.
Discussion
In Pennell, our Supreme Court held
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 [a] defendant
may challenge the facial validity of the
original indictment is by filing a motion
for appropriate relief under N.C. [Gen.
Stat.] § 15A-1415(b) or petitioning for a
writ of habeas corpus.
Id. at __, __ S.E.2d at __. Defendant has filed a motion asking
this Court to reconsider her MAR. In its response, the State
contends that Defendant is essentially asking this Court to
rehear her MAR and argues we lack the authority to do so because
our Appellate Rules prohibit us from “entertain[ing] petitions
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for rehearing in criminal actions.” N.C.R. App. P. 31(g). We
agree.
We are not, however, persuaded by the State’s contention
that, because the State only “sought review of this Court’s
opinion in Smith, contending this Court erred in relying on [the
opinion of this Court in] Pennell[,] . . . [and] did not seek
review of this Court’s disposition of Defendant’s MAR[,]” our
Supreme Court’s remand of the case for reconsideration in light
of Pennell “does not embrace the disposition of the MAR.” As
noted supra, the issue addressed by our Supreme Court in Pennell
was “the proper procedure through which [a] defendant may
challenge the facial validity of the original indictment” on
appeal from the revocation of probation and activation of the
original sentence. Pennell, __ N.C. at __, __ S.E.2d at __. By
filing an MAR along with her direct appeal, Defendant’s
appellate counsel presented this panel two routes by which to
reach the merits of her challenge to the facial validity of the
original indictment in her case, and we relied on the then-
binding precedent of Pennell in selecting the proper route under
which to proceed. Our Supreme Court has now clarified the law
and directed us to reconsider this very point.
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Further, as the State correctly notes, a panel of this
Court may, upon motion of a party or upon its own motion, change
its previous ruling “if the court determines that its former
ruling was clearly erroneous.” N.C. Nat’l Bank v. Virginia
Carolina Builders, 307 N.C. 563, 567, 299 S.E.2d 629, 632
(1983). Under our Supreme Court’s decision in Pennell, our
previous decision in this matter, to address Defendant’s
argument on direct appeal rather than by consideration of the
merits of her MAR, was clearly erroneous. Accordingly, we
address the issue raised in Defendant’s MAR, to wit, that the
trial court lacked jurisdiction to revoke her probation and
activate her sentence on the charge of selling or delivering
cocaine near a playground because the indictment for that
offense 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
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controlled substance was sold or delivered.” We agree that the
indictment was fatally defective.
Superior court criminal 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
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 [j]urors 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,
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willfully, and feloniously did commit an
offense under North Carolina General Statute
90-95(a)(1) of sell and deliver, a controlled
substance [c]ocaine, within 1,000 feet of the
real property boundary of Concord Chase
Apartment’s play ground [sic].
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 is fatally defective and cannot sustain the judgment
in that case.” State v. Long, 14 N.C. App. 508, 510, 188 S.E.2d
690, 691 (1972); see also State v. Calvino, 179 N.C. App. 219,
221-22, 632 S.E.2d 839, 842 (2006).2 We therefore vacate the 24
February 2011 judgment which was entered upon Defendant’s
consolidated convictions.
2
In addition, 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). A previous
version of the statute provided that “[a]ny person 21 years of
age or older who commits an offense under [N.C. Gen. Stat. §]
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.” 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 later amended section 90-95(e)(10) to remove the word
“playground” and the sentence defining “playground.” See 2007
N.C. Sess. Laws ch. 375, §§ 1-2. In any event, having
determined that the indictment is flawed on other grounds, we
need not resolve this question.
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We must also vacate the 7 March 2013 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);
see also N.C. Gen. Stat. § 15A-1340.15(b) (2013) (“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 the sale or delivery of
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 the
sale or delivery of cocaine near a playground, a conviction
based upon a fatally flawed indictment. Such a sentence is void
and a nullity, see McClure v. State, 267 N.C. 212, 215, 148
S.E.2d 15, 17-18 (1966), and a void sentence cannot be
activated. Accordingly, we also vacate the judgment revoking
Defendant’s probation.
Finally, we remand this case to the superior court for
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disposition on all of the remaining original charges against
Defendant. As noted supra, Defendant’s sentence was the result
of a plea agreement, a crucial part of which was Defendant’s
plea of guilty to the charge of selling or delivering cocaine
near a playground. Defendant has repudiated that portion of the
agreement. “Although a plea agreement occurs in the context of
a criminal proceeding, it remains contractual in nature. A plea
agreement will be valid if both sides voluntarily and knowingly
fulfill every aspect of the bargain.” State v. Rico, 218 N.C.
App. 109, 122, 720 S.E.2d 801, 809 (Steelman, J., dissenting in
part) (citations and internal quotation marks omitted), reversed
in part per curiam for the reasons stated in the dissent, 366
N.C. 327, 734 S.E.2d 571 (2012). “[A d]efendant cannot
repudiate [a plea agreement] in part without repudiating the
whole.” Id. In such cases, the entire plea agreement must be
set aside and the case remanded for disposition on all of the
charges affected by the plea agreement. Id.
VACATED and REMANDED.
Judges GEER and ERVIN concur.
Report per Rule 30(e).