Opinion
No. COA15-1295
06-21-2016
IN THE MATTER OF: S.M.M.
Attorney General Roy Cooper, by Assistant Attorney General Janelle E. Varley, for the State. Geeta N. Kapur for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Henderson County, No. 15 JB 60 Appeal by juvenile from orders entered 15 June 2015 by Judge Athena F. Brooks in Henderson County District Court. Heard in the Court of Appeals 1 June 2016. Attorney General Roy Cooper, by Assistant Attorney General Janelle E. Varley, for the State. Geeta N. Kapur for juvenile-appellant. ZACHARY, Judge.
Juvenile S.M.M. appeals from orders of the juvenile court adjudicating her delinquent for a minor offense and imposing a Level 1 disposition. We vacate the orders for lack of subject matter jurisdiction.
On 12 May 2015, a juvenile court counselor filed a delinquency petition styled "Juvenile Petition Possession of Schedule I Controlled Substance (Delinquent)[,]" alleging that S.M.M. "did unlawfully, willfully and feloniously possess a controlled substance[,]" to wit: a "clear plastic bag containing PEYOTE, which is included in Schedule I of the North Carolina Controlled Substances Act, in violation of G.S. 90- 95(a)(1)." See N.C. Gen. Stat. §§ 90-89(3)(o), 90-95(a)(3), (d)(1) (2015) (classifying peyote as a Schedule I controlled substance and making its possession a Class I felony). On 20 May 2015, S.M.M. entered an admission to the charge of possession of drug paraphernalia, a Class 1 misdemeanor under N.C. Gen. Stat. § 90-113.22 (2015). The juvenile court adjudicated S.M.M. delinquent and placed her on probation for six months. S.M.M. filed a handwritten pro se notice of appeal from the "decision in juvenile court on 5-20-15" on 1 June 2015. The court entered its written orders on 15 June 2015. See Darcy v. Osborne, 101 N.C. App. 546, 548, 400 S.E.2d 95, 96 (1991) (holding that "notice of appeal is timely if filed after judgment is rendered in court, and before the expiration of the 30-day period after judgment is entered").
The body of the petition erroneously cites N.C. Gen. Stat. § 90-95(a)(1) (2015), which makes it unlawful "[t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver a controlled substance[.]" Id. The petition's caption correctly cites to N.C. Gen. Stat. § 90-93(a)(3), which prohibits possession, but misidentifies the category of offense as a Class H felony, rather than Class I. See N.C. Gen. Stat. § 90-95(d)(1).
In her appeal, S.M.M. "has not raised the issue of jurisdiction in this case. Nevertheless, 'subject matter jurisdiction may not be waived, and this Court has not only the power, but the duty to address the trial court's subject matter jurisdiction on its own motion or ex mero motu.' " State v. Kornegay, 228 N.C. App. 320, 321, 745 S.E.2d 880, 881 (2013) (quoting Obo v. Steven B., 201 N.C. App. 532, 537, 687 S.E.2d 496, 500 (2009)).
We have previously held that a court is without subject matter jurisdiction to enter an order adjudicating a juvenile delinquent for an offense other than those alleged in the petition. In re Davis, 114 N.C. App. 253, 441 S.E.2d 696 (1994); see also N.C. Gen. Stat. § 7B-1802 (2015). The petition included in the record on appeal charges S.M.M. with possession of peyote, a Schedule I controlled substance. S.M.M. admitted to a different offense, possession of drug paraphernalia. Moreover, possession of drug paraphernalia is not a lesser-included offense of the offense charged, because it includes an essential element - i.e., drug paraphernalia - that is not an element of possession of a Schedule I controlled substance. See generally State v. Hudson, 345 N.C. 729, 732-33, 483 S.E.2d 436, 438-39 (1997) (requiring a "definitional" approach to determine whether one offense is a lesser-included of another).
We recognize the possibility that another petition was filed charging S.M.M. with possession of drug paraphernalia. However, "when a document is necessary to establish the jurisdiction of the trial court, it should be included in the record on appeal." Obo, 201 N.C. App. at 537, 687 S.E.2d at 499-500; see also N.C.R. App. P. 9(a)(1)(d), (3)(c). We are bound by the record before us, which "affirmatively shows [the juvenile court's] lack of jurisdiction." State v. Petersilie, 334 N.C. 169, 176, 432 S.E.2d 832, 836 (1993).
"In the absence of an accusation the court acquires no jurisdiction whatever, and if it assumes jurisdiction a trial and conviction are a nullity." State v. Neville, 108 N.C. App. 330, 332, 423 S.E.2d 496, 497 (1992) (citation and internal quotation marks omitted). The fact that S.M.M. admitted to the charge is of no moment. Id. at 333, 423 S.E.2d at 497; accord Davis, 114 N.C. App. at 256, 441 S.E.2d at 698. "[B]ecause jurisdiction over the subject matter of a proceeding cannot be conferred by consent, waiver, or estoppel[,]" Davis, 114 N.C. App. at 256, 441 S.E.2d at 698, we hereby vacate the juvenile court's orders. As this disposes of the appeal, we need not address S.M.M.'s briefed argument.
VACATED.
Chief Judge McGEE and Judge McCULLOUGH concur.
Report per Rule 30(e).