State v. McCulloch

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-472
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA

Wilkes County
v. Nos. 11 CRS 50057-61, 50065-67,
50499-506, 1078-1084

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. On

appeal, Defendant argues that the trial court lacked the

authority to revoke his probation in certain cases on the

grounds that the jurisdictional prerequisites for taking that

action had not been satisfied. After careful consideration of
 -2-
Defendant’s challenge to the trial court’s judgments in light of

the record and the applicable law, we conclude that the trial

court’s judgments should remain undisturbed.

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, 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 executed and subsequently placed in

the relevant court files. On the same date, Defendant entered

pleas of guilty to eight 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
 -3-
provided that, in return for Defendant’s guilty pleas, the State

would voluntarily dismiss nine counts of identity 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. After accepting

Defendant’s guilty pleas, Judge Jeanie R. Houston entered

judgments that, when viewed in their entirety, sentenced

Defendant to ten consecutive terms of 9 to 11 months

imprisonment that 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 substance and

possession of drug paraphernalia was issued. On 28 January

2011, a warrant for arrest charging Defendant with misdemeanor

larceny was issued. On 18 February 2011, warrants for arrest

charging Defendant with two counts of obtaining property by

false pretenses were issued. On 3 March 2011, warrants for
 -4-
arrest charging Defendant with twelve counts of obtaining

property by false pretenses were issued. On 12 June 2011, a

warrant for arrest charging Defendant with misdemeanor larceny

was issued. On 22 September 2011, Defendant entered no contest

pleas to 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 by false pretenses and Defendant would receive seven

consecutive suspended sentences, be placed on probation, and pay

restitution. Based upon Defendant’s no contest pleas, Judge

David V. Byrd entered judgments that, viewed in their entirety,

sentenced Defendant to seven consecutive terms of 11 to 14

months imprisonment that were each suspended for a period of 36

months on the condition that Defendant pay the costs, $21,156.60

in restitution, and a $1,125.60 attorney’s fee; be placed on

supervised probation; and comply with the usual terms and
 -5-
conditions of probation.1 Defendant’s probation in these 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 the allegations advanced in these

violation reports was held before the trial court in Wilkes

County Superior Court on 16 November 2012. At that hearing,

Defendant admitted that he had willfully and without lawful
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
misdemeanor larceny, one count of possession of drug
paraphernalia, and one count of driving while license revoked
for judgment before imposing sentence.
 -6-
excuse violated the terms and conditions of his probation and

requested that he either be allowed to continue on probation, 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 were

connected. Defendant’s mother, Linda McCulloch, who was the

alleged victim in certain of the underlying cases, attributed

Defendant’s unlawful conduct and failures to comply with the

terms and conditions of his probation 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] at all.” As a result, the trial court entered

judgments finding that Defendant had wilfully violated the terms

and conditions of his probation without lawful excuse and had

absconded, that his probation should be revoked, and that each

of his seventeen suspended sentences should be activated and

served consecutively. Defendant noted an appeal to this Court

from the trial court’s judgments.2

2
Although this Court filed an opinion reversing the
 -7-
II. Substantive Legal Analysis

In his sole challenge to the trial court’s judgments,

Defendant contends that the trial court lacked the authority to

revoke his probation and activate his suspended sentences in the

Ashe County cases.3 More specifically, Defendant contends that

the trial 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 N.C. Gen. Stat. § 7A-271(e) had not been satisfied.

Defendant is not entitled to relief on the basis of this

contention.

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). 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

revocation of Defendant’s probation and the activation of
Defendant’s suspended sentences in the Ashe County cases on 18
March 2014, we withdrew our initial opinion on 3 April 2014 in
light of the filing of a motion questioning the factual basis
for our initial decision. The present opinion is intended to be
a substitute for our earlier decision, which should be deemed to
be void and of no effect.
3
As a result of the fact that Defendant has not challenged
the validity of the trial court’s decision to revoke his
probation and activate his suspended sentences in the Wilkes
County cases in his brief, the trial court’s decision in the
Wilkes County cases is not properly before us for review.
 -8-
(2008), the fact that Defendant failed to challenge the court’s

jurisdiction over the subject matter of a particular proceeding

before the trial court does not ordinarily stand as a bar to the

assertion of that jurisdictional challenge on appeal. However,

despite the fact that “[a void judgment] neither binds nor bars

any one,” so that “all proceedings founded upon it are

worthless,” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790

(2006) (quotations omitted), “a defendant may not challenge the

jurisdiction over the original conviction in an appeal from an

order revoking his probation and activating his sentence” on the

grounds that such an assertion constitutes an impermissible

collateral attack on the underlying conviction. State v.

Pennell, __ N.C. __, __, __ S.E.2d __, __ (2014). As a result,

while Defendant is entitled to attack the trial court’s

jurisdiction to revoke his probation on appeal without having

raised that issue in the trial court, he is not entitled to

challenge the extent to which the sentencing court had the

authority to impose the underlying probationary judgments by

means of an appeal taken from the revocation of his probation.

According to N.C. Gen. Stat. § 7A-271(e):

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. §]
 -9-
7A-272(c), except that the district court
shall have jurisdiction to hear these
matters with the consent of the State and
the defendant.

As a result of the fact that N.C. Gen. Stat. § 15A-1345(e)

governs the conduct of proceedings convened to address

allegations that a 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

Division of the General Court of Justice in certain

circumstances, the obvious effect of N.C. Gen. Stat. § 7A-271(e)

is to give the Superior Court Division of the General Court of

Justice exclusive jurisdiction over probation revocation

hearings arising from cases in which the District Court 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
 -10-
(2) 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.

Similarly, 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. §] 15A-

644(b),4 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 in the

event that the defendant’s case is still pending in the District

Court 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 back to the District Court

pursuant to N.C. Gen. Stat. § 15A-1029.1.

The essential argument advanced in Defendant’s brief is

that compliance with N.C. Gen. Stat. § 7A-272(c) is a necessary

4
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. §] 15A-
642(c).”
 -11-
prerequisite for the invocation of the trial court’s

jurisdiction to revoke a defendant’s probation pursuant to N.C.

Gen. Stat. § 271(e). In other words, Defendant contends that

the Superior Court lacks jurisdiction to revoke a defendant’s

probation pursuant to N.C. Gen. Stat. § 7A-271(e) unless the

original probationary judgments were imposed in compliance with

the provisions of N.C. Gen. Stat. § 7A-272(c). Based upon that

logic, Defendant further contends that the fact that the

felonies to which he pled no contest in Ashe County were charged

by warrants for arrest rather than by informations deprived the

Ashe County District Court of the authority to accept

Defendant’s no contest pleas and, by extension, deprived the

trial court of jurisdiction to revoke his probation in the Ashe

County cases.

Although Defendant asserts that the argument that he has

advanced on appeal constitutes a challenge to the trial court’s

jurisdiction to revoke his probation and activate his suspended

sentences in the Ashe County cases rather than to the validity

of the underlying probationary judgments, we do not find this

logic persuasive. Reduced to its essence, Defendant’s argument

rests on the assertion that the District Court lacked the

jurisdiction to impose the original probationary judgments in

the Ashe County cases given the absence of valid informations
 -12-
charging Defendant with the offenses to which he pled no contest

from the file in the Ashe County cases. In other words,

Defendant’s argument inherently rests upon a challenge to the

District Court’s jurisdiction to impose the original

probationary judgment, which is exactly the type of argument

that Pennell precludes us from considering in connection with an

appeal from an order revoking a convicted criminal defendant’s

probation and activating his suspended sentence. As a result,

given that we lack the authority to entertain the only challenge

that Defendant has advanced in opposition to the trial court’s

probation revocation orders, we have no choice except to affirm

the revocation of Defendant’s probation and the activation of

his suspended sentences.5

III. Conclusion

Thus, for the reasons set forth above, we conclude that

Defendant’s challenge to the trial court’s judgments is not

properly before this Court. As a result, the trial court’s

judgments should, and hereby do, remain undisturbed.6

5
Consistently with the Supreme Court’s holding in Pennell,
our decision in this case should not be understood as
prejudicing Defendant’s right to seek relief from the sentences
imposed in the Ashe County cases through the use of other
procedural mechanisms such as the filing of a motion for
appropriate relief or a petition for the issuance of a writ of
habeas corpus. Pennell, __ N.C. at __, __ S.E.2d at __.
 -13-
AFFIRMED.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.

Report per Rule 30(e).

6
In light of our decision that we lack the authority to
entertain Defendant’s challenge to the revocation of his
probation and the activation of his suspended sentences in the
Ashe County cases, we need not decide the remaining motions that
are currently pending in this case and deny them on mootness
grounds.