IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-904
Filed: 7 June 2016
Catawba County, No. 13 CRS 52263
STATE OF NORTH CAROLINA
v.
SANDRA MESHELL BRICE, Defendant.
Appeal by defendant from judgment entered 12 February 2015 by Judge
Michael D. Duncan in Catawba County Superior Court. Heard in the Court of
Appeals 24 February 2016.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel L.
Spiegel, for defendant.
Attorney General Roy Cooper, by Assistant Attorney General Nancy Dunn
Hardison, for the State.
ELMORE, Judge.
Defendant argues on appeal that the indictment against her was fatally
defective because it failed to comply with the requirements set forth in N.C. Gen.
Stat. § 15A-928. Defendant’s petition for certiorari is allowed by this Court so that
we may review the judgment entered. In accordance with State v. Williams, 153 N.C.
App. 192, 568 S.E.2d 890 (2002), we hold that the indictment was insufficient to
confer jurisdiction upon the trial court. We vacate defendant’s conviction for habitual
STATE V. BRICE
Opinion of the Court
misdemeanor larceny and remand for entry of judgment and sentence for
misdemeanor larceny.
I. Background
On 22 July 2013, a Catawba County Grand Jury indicted Sandra Meshell Brice
(defendant) on one count of “habitual misdemeanor larceny” for stealing five packs of
steaks valued at $70.00. The indictment alleged:
that on or about [21 April 2013] and in [Catawba County]
the defendant named unlawfully, willfully, and feloniously
did steal, take, and carry away FIVE PACKS OF STEAKS,
the personal property of FOOD LION, LLC, such property
having a value of SEVENTY DOLLARS ($70.00), and the
defendant has had the following four prior larceny
convictions in which he was represented by counsel or
waived counsel:
On or about MAY 8, 1996 the defendant committed the
misdemeanor of LARCENY in violation of the law of the
State of North Carolina, G.S. 14-72, and on or about
SEPTEMBER 10, 1996 the defendant was convicted of the
misdemeanor of LARCENY in the District Court of Lincoln
County, North Carolina; and that
On or about FEBRUARY 19, 1997 the defendant
committed the misdemeanor of LARCENY in violation of
the law of the State of North Carolina, GS. 14-72, and on
or about JULY 29, 1997 the defendant was convicted of the
misdemeanor of LARCENY in the District Court of
Catawba County, North Carolina; and that
On or about JUNE 13, 2003 the defendant committed the
misdemeanor of LARCENY in violation of the law of the
State of North Carolina, G.S. 14-72, and on or about
OCTOBER 17, 2003 the defendant was convicted of the
misdemeanor of LARCENY in the District Court of
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STATE V. BRICE
Opinion of the Court
Catawba County, North Carolina; and that
On or about JULY 7, 2007 the defendant committed the
misdemeanor of LARCENY in violation of the law of the
State of North Carolina, G.S. 14-72, and on or about
SEPTEMBER 24, 2007 the defendant was convicted of the
misdemeanor of LARCENY in the District Court of
Catawba County, North Carolina.
At the beginning of trial, defendant stipulated to four prior misdemeanor
larceny convictions outside the presence of the jury. The trial court informed counsel
that it intended to proceed as if the trial was for misdemeanor larceny. The court
also informed the jury that defendant had been charged “with the offense larceny.”
At the conclusion of trial, the jury found defendant guilty of larceny. The court
entered judgment against defendant for habitual misdemeanor larceny, and
sentenced defendant to ten to twenty-one months of imprisonment, suspended for
twenty-four months of supervised probation, and a seventy-five-day active term as a
condition of special probation. Defendant appeals.
II. Discussion
Defendant argues that the trial court lacked jurisdiction to enter a judgment
for habitual misdemeanor larceny because the indictment was fatally defective in
that it failed to comply with the mandates of N.C. Gen. Stat. § 15A-928. Although
defendant failed to challenge the sufficiency of the indictment in the trial court,
“where an indictment is alleged to be invalid on its face, thereby depriving the trial
court of its jurisdiction, a challenge to that indictment may be made at any time, even
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Opinion of the Court
if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481, 503, 528
S.E.2d 326, 341 (citations omitted), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498
(2000), reh’g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001). Therefore, we address
defendant’s argument on the merits.
A valid indictment is required to confer jurisdiction upon the trial court. State
v. Covington, 258 N.C. 501, 503, 128 S.E.2d 827, 829 (1963); State v. Morgan, 226
N.C. 414, 415, 38 S.E.2d 166, 167 (1946). “ ‘When the record shows a lack of
jurisdiction in the lower court, the appropriate action on the part of the appellate
court is to arrest judgment or vacate any order entered without authority.’ ” State v.
Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 836 (1993) (quoting State v. Felmet, 302
N.C. 173, 176, 273 S.E.2d 708, 711 (1981)). Challenges to the sufficiency of an
indictment are reviewed de novo. State v. Pendergraft, ____ N.C. App. ____, ____, 767
S.E.2d 674, 679 (Dec. 31, 2014) (COA14-39) (citing State v. Marshall, 188 N.C. App.
744, 748, 656 S.E.2d 709, 712 (2008)).
In trials in superior court where a defendant’s prior convictions are alleged as
part of a charged offense, the pleading must comply with the provisions of section
15A-928. N.C. Gen. Stat. § 15A-924(c) (2015). Section 15A-928 provides, in pertinent
part, as follows:
(a) When the fact that the defendant has been previously
convicted of an offense raises an offense of lower grade to
one of higher grade and thereby becomes an element of the
latter, an indictment or information for the higher offense
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STATE V. BRICE
Opinion of the Court
may not allege the previous conviction. . . .
(b) An indictment or information for the offense must be
accompanied by a special indictment or information, filed
with the principal pleading, charging that the defendant
was previously convicted of a specified offense. At the
prosecutor’s option, the special indictment or information
may be incorporated in the principal indictment as a
separate count. . . .
....
(d) When a misdemeanor is tried de novo in superior court
in which the fact of a previous conviction is an element of
the offense affecting punishment, the State must replace
the pleading in the case with superseding statements of
charges separately alleging the substantive offense and the
fact of any prior conviction, in accordance with the
provisions of this section relating to indictments and
informations.
N.C. Gen. Stat. § 15A-928(a), (b) & (d) (2015) (emphasis added).
Turning to the offenses at issue, larceny is punishable as a Class 1
misdemeanor where the value of the property stolen is not more than $1,000.00. N.C.
Gen. Stat. § 14-72(a) (2015). If, however, at the time of the offense the defendant had
four prior larceny convictions, then the offense is punishable as a Class H felony.
N.C. Gen. Stat. § 14-72(a) & (b)(6) (2015). In such a case, the defendant’s prior
convictions are treated as elements to elevate the principal offense from a
misdemeanor to a felony. Therefore, an indictment for habitual misdemeanor larceny
is subject to the provisions of N.C. Gen. Stat. § 15A-928.
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Opinion of the Court
On its face, the indictment here failed to comply with N.C. Gen. Stat. § 15A-
928. The State used the instrument to charge defendant with habitual misdemeanor
larceny and to list defendant’s prior convictions. Although section 15A-928(b) allows
the State to incorporate “the special indictment or information” into the principal
indictment, defendant’s prior convictions were not alleged in a separate count.
Rather, the sole indictment issued in this case lists a single count of “habitual
misdemeanor larceny,” alleging defendant’s prior convictions thereafter.
Nevertheless, the State cites State v. Jernigan, 118 N.C. App. 240, 455 S.E.2d
163 (1995), for the proposition that errors under section 15A-928 are not reversible
unless the defendant was prejudiced. In Jernigan, the trial court failed to arraign
defendant in accordance with N.C. Gen. Stat. § 15A-928(c), as it “did not formally
arraign defendant upon the charge alleging the previous convictions and did not
advise defendant that he could admit the previous convictions, deny them, or remain
silent . . . .” Id. at 243, 455 S.E.2d at 165. Before trial, however, defendant stipulated
to his previous convictions which were set forth in the indictment. Id. at 243–44, 455
S.E.2d at 165–66. We held that the trial court’s failure to follow the arraignment
procedures under section 15A-928(c) was not reversible error because it was “clear
that defendant was fully aware of the charges against him, that he understood his
rights and the effect of the stipulation, and that he was in no way prejudiced by the
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Opinion of the Court
failure of the court to formally arraign him and advise him of his rights.” Id. at 245,
455 S.E.2d at 167.
While the State’s argument under Jernigan is persuasive, its proposition fails
because a formal arraignment under section 15A-928(c) is not a matter of
jurisdictional consequence. In State v. Williams, 153 N.C. App. 192, 568 S.E.2d 890
(2002), disc. review improvidently allowed, 375 N.C. 45, 577 S.E.2d 618 (2003), we
held that where the State failed to charge the defendant with habitual misdemeanor
assault in a special indictment or separate count of the principal indictment, in
accordance with section 15A-928(b), the trial court was without jurisdiction to
sentence defendant for habitual misdemeanor assault. Id. at 194–95, 568 S.E.2d at
892. Despite this Court’s previous decision in Jernigan, no showing of prejudice was
required to vacate the judgment in Williams. We believe Williams controls the
disposition sub judice.
III. Conclusion
Because the indictment did not comply with the requirements of N.C. Gen.
Stat. § 15A-928 regarding indictments and informations, the trial court was without
jurisdiction to enter judgment against defendant for habitual misdemeanor larceny.
We vacate defendant’s conviction and remand for entry of judgment and sentence on
misdemeanor larceny. See Williams, 153 N.C. App. at 196, 568 S.E.2d at 893
(remanding for entry of judgment on misdemeanor assault on a female).
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STATE V. BRICE
Opinion of the Court
VACATED AND REMANDED. NEW SENTENCING.
Judges HUNTER, JR. and DAVIS concur.
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