An unpublished opinion of the North Carolina Court of Appeals does not constitute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
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 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.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas E. Kelly, for the State.
Amanda S. Zimmer for Defendant.
STEPHENS, Judge.
I. Procedural History and Evidence
This appeal arises from the revocation of Defendant
Yosheika Charmaine Smith’s probation. On 24 August 2009,
Defendant was indicted for possession with intent to sell
cocaine (two counts), selling cocaine, delivering cocaine, and
selling or delivering cocaine near a playground. Following
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Defendant’s 24 February 2011 Alford plea to the aforementioned
charges and to three counts of driving with a revoked license,
the trial court entered a consolidated judgment which imposed a
suspended prison sentence of 29 to 44 months. As a result,
Defendant was placed on supervised probation for 24 months.
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.
Another violation report was filed on 28 November 2012,
which alleged that Defendant was in arrears on her required
court payments, failed to complete assigned community service,
and had again been convicted of driving with a revoked license.
Defendant admitted these violations at her 4 March 2013 hearing.
After finding that Defendant had “violated her supervised
probation in each and every way cited[,]” the trial court
entered a 7 March 2013 judgment revoking Defendant’s probation
and activating her suspended sentence of 29 to 44 months of
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imprisonment. From the 7 March 2013 judgment entered upon
revocation of her probation, Defendant appeals.1
II. Discussion
Defendant brings forward two arguments on appeal: (1) that
the trial court lacked jurisdiction to revoke her probation for
selling/delivering cocaine near a playground because the
underlying indictment on that charge is fatally defective and
(2) that the trial court abused its discretion by revoking her
probation. As discussed herein, we vacate both the original and
probation revocation judgments and remand for resentencing.
Defendant argues that the trial court lacked jurisdiction
to revoke her probation and activate her sentence on the charge
of selling/delivering cocaine near a playground because the
indictment for that offense is fatally defective. Because
Defendant attacks the validity of the underlying judgment
against her, we must first determine whether this issue is
properly before us.
1
On 11 July 2013, Defendant filed a Motion for Appropriate
Relief (“MAR”) in this Court, asking that her sentence for
selling/delivering cocaine near a playground be vacated because
the judgment on that charge was entered upon a defective
indictment. As Defendant makes the same argument in her brief,
we dismiss her motion and address the issue in this opinion.
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Over forty years ago, in State v. Noles, a defendant
challenged the revocation of his probation by arguing that his
guilty plea to the underlying offenses which formed the basis of
the original judgment suspending his sentence was not entered
understandingly and voluntarily. 12 N.C. App. 676, 678, 184
S.E.2d 409, 410 (1971). This Court found that when a defendant
appeals from an order activating a suspended sentence,
“inquiries are permissible only to determine [(1)] whether there
is evidence to support a finding of a breach of the conditions
of the suspension, or [(2)] 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, 553, 173 S.E.2d 778, 781 (1970)). As a result,
this Court held that the defendant’s attempt to question “the
validity of the original judgment where sentence was suspended
on appeal from an order activating [his] sentence [constituted]
an impermissible collateral attack.” Id.
More recently, this Court has cited the general rule
enunciated in Noles to dismiss several appeals challenging the
trial court’s jurisdiction to revoke probation. In State v.
Long, the defendant appealed from revocation of his probation
and challenged the trial court’s jurisdiction to enter the
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original judgment by arguing that “the trial court lacked
jurisdiction to accept his [guilty] plea and to suspend and
later activate the sentences . . . because [he] was not indicted
on these offenses and did not effectively waive the State’s
responsibility to charge him by a bill of indictment.” __ N.C.
App. __, __, 725 S.E.2d 71, 72, disc. review denied, 366 N.C.
227, 726 S.E.2d 836 (2012). Applying Noles, this Court refused
to reach the defendant’s argument, reasoning that
[the] defendant could have appealed his 2
July 2010 judgments as a matter of right or
by petition in accordance with the procedures
set forth in our statutes and appellate
rules. However, because [the] defendant did
not timely appeal by right or by petition
from the 2 July 2010 judgments entered upon
his guilty plea and only now attempts to
attack these sentences imposed and suspended
in 2010 in an appeal from the 7 March 2011
judgments revoking his probation, we
conclude, consistent with three decades of
Court of Appeals[’] precedent, that this
challenge is an impermissible collateral
attack on the original judgments.
Accordingly, this appeal must be dismissed.
Id. at __, 725 S.E.2d at 73 (citations, internal quotation
marks, and alterations omitted).
In State v. Hunnicutt, the defendant argued that “the trial
court lacked jurisdiction to revoke his probation in two of his
cases because the indictments underlying those offenses [were]
facially defective, and thus invalid.” __ N.C. App. __, __, 740
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S.E.2d 906, 909 (2013). The Court characterized the defendant’s
jurisdictional challenge in the following manner:
A valid bill of indictment is essential to
the jurisdiction of the Superior Court to try
an accused for a felony and have the jury
determine his guilt or innocence, and to give
authority to the court to render a valid
judgment. However, 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. Thus, a defendant on appeal from an
order revoking probation may not challenge
his adjudication of guilt, as questioning the
validity of the original judgment where
sentence was suspended on appeal from an
order activating the sentence is an
impermissible collateral attack.
[The] defendant contends that a challenge to
the validity of an indictment, and thus the
subject matter jurisdiction of the trial
court, is not subject to the foregoing
analysis, due to our Supreme Court’s
longstanding observation that a challenge to
an indictment may be made at any time, even
if it was not contested in the trial court.
State v. Wallace, 351 N.C. 481, 503, 528
S.E.2d 326, 341 (2000). However, we read
Wallace and the other cases cited by [the]
defendant as addressing the question of
whether a challenge to an indictment must be
preserved at the trial level in order to be
raised on direct appeal. This is a different
question than the one presented by the
instant case, in which [the] defendant
attempts to challenge the jurisdictional
validity of an underlying judgment against
him long after the time for perfection of an
appeal of that judgment has expired.
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Id. (some citations, internal quotation marks, some brackets,
and ellipses omitted). Relying on Long and Noles, this Court
held that the defendant’s “argument [was] not properly before
[it] on appeal from a judgment revoking probation and activating
his suspended sentences.” Id. at __, 740 S.E.2d at 910.
However, in a recent opinion marshaling the case law on
collateral attacks on judgments in probation revocation appeals,
a panel of this Court concluded that “Noles [was] applied in
both Long and Hunnicutt in a manner inconsistent with our
Supreme Court precedent.” See State v. Pennell, __ N.C. App. __,
__, 746 S.E.2d 431, 439, supersedeas and disc. review allowed,
__ N.C. __, 748 S.E.2d 534 (2013). The central issue in Pennell
was whether the defendant could challenge the trial court’s
jurisdiction to revoke his probation on grounds that “the
underlying indictment for his conviction of larceny after
breaking or entering . . . was fatally defective.” Id. at __,
746 S.E.2d at 443. After a thorough discussion of the pertinent
case law, the Pennell court held that a “[d]efendant may, on
appeal from revocation of probation, attack the jurisdiction of
the trial court, either directly or collaterally.” Id. at __,
746 S.E.2d at 441 (emphasis added). As a backdrop to its
holding, the Court explained:
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Both our Supreme Court and this Court, in
opinions predating Long and Hunnicutt, have
addressed issues concerning the jurisdiction
of the trial court in appeals from probation
revocation. . . . We are bound by precedent
of our Supreme Court and, because this Court
may not overrule its own opinions, we are
also bound by the earlier opinions of this
Court that conflict with Long and Hunnicutt.
Id. (citations omitted).
Pennell undertakes an exhaustive review and sound analysis
of the “often contradictory” case law governing a defendant’s
“appeal from revocation of probation[,]” and we see no need to
repeat that discussion here. Id. at __, 746 S.E.2d at 433.
Furthermore, the challenge in the instant case, as in Pennell,
is to the trial court’s jurisdiction to revoke probation when
the underlying judgment was entered upon an allegedly fatally
defective indictment. Accordingly, we conclude that Pennell and
the precedent upon which it relies compel us to reach the merits
of Defendant’s argument. See In re Appeal from Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of
the Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by
that precedent, unless it has been overturned by a higher
court.”).
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As noted above, Defendant argues that the underlying
indictment for her conviction of selling/delivering cocaine near
a playground 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 controlled substance was sold or
delivered.” We agree that Defendant’s indictment on this charge
was fatally defective.
The superior court’s 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
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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 Jurors 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,
willfully, and feloniously did commit an
offense under North Carolina General Statute
90-95(a)(1) of sell and deliver, a controlled
substance Cocaine, within 1,000 feet of the
real property boundary of Concord Chase
Apartment’s play ground [sic].
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).2 However, we need not
2
A previous version of the statute provided that “[a]ny person
21 years of age or older who commits an offense under G.S. 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.” See 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 amended section 90–95(e)(10) to remove the word
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make this determination. 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 [charging Defendant with
selling/delivering cocaine near a playground] is fatally
defective and cannot sustain the [underlying] judgment in this
case.” State v. Long, 14 N.C. App. 508, 510, 188 S.E.2d 690, 691
(1972). Thus, “[t]he trial court [had] no jurisdiction to
convict or sentence Defendant for [this] . . . charge[.]”
Pennell, __ N.C. App. at __, 746 S.E.2d at 444. We therefore
vacate the 24 February 2011 judgment which was entered upon
Defendant’s consolidated convictions and remand to the trial
court for entry of judgment and resentencing on Defendant’s
remaining convictions: possession with intent to sell cocaine
(two counts), selling cocaine, delivering cocaine, and driving
with a revoked license (three counts). See State v. Wortham, 318
N.C. 669, 674, 351 S.E.2d 294, 297 (1987) (“[W]e think the
better procedure is to remand for resentencing when one or more
but not all of the convictions consolidated for judgment has
been vacated.”).
“playground” and the sentence defining “playground.” See 2007
N.C. Sess. Laws ch. 375, §§ 1-2.
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Further, we must also vacate the 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); N.C.
Gen. Stat. § 15A-1340.15(b) (2011) (“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 sell/deliver 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 sell/deliver near a playground,
a conviction based upon a fatally flawed indictment.
“A sentence based upon a conviction supported by a fatally
defective indictment is a nullity and, therefore, not a valid
sentence.” Pennell, __ N.C. App. at __, 746 S.E.2d at 441. In
turn,
having no jurisdiction to convict or
sentence Defendant for this . . . charge,
[the trial court] was equally without
jurisdiction to revoke probation on a
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conviction that did not legally exist, or to
activate a sentence never legally imposed.
Because the trial court lacked jurisdiction
to activate any sentence imposed . . . ,
activation of that sentence is also a
nullity. Defendant cannot have violated the
probation terms of a suspended sentence
which was void. Accordingly, we also vacate
the judgment revoking Defendant’s probation.
Id. at __, 746 S.E.2d at 444.
VACATED and REMANDED FOR RESENTENCING.
Judges GEER and ERVIN concur.
Report per Rule 30(e).