Opinion
No. COA15-1234
05-03-2016
STATE OF NORTH CAROLINA v. CALVIN RENARD CARTER, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kristin J. Uicker, for the State. Richard J. Costanza for Defendant-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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Forsyth County, No. 13 CRS 51566 Appeal by Defendant from judgment entered 7 May 2015 by Judge Michael D. Duncan in Forsyth County Superior Court. Heard in the Court of Appeals 10 March 2016. Attorney General Roy Cooper, by Assistant Attorney General Kristin J. Uicker, for the State. Richard J. Costanza for Defendant-Appellant. INMAN, Judge.
Defendant, Calvin Renard Carter ("Defendant"), appeals the judgment entered after a jury found him guilty of carrying a concealed gun and resisting a public officer. On appeal, Defendant contends the indictment for felony carrying a concealed gun was fatally defective and deprived the trial court of subject matter jurisdiction. We agree and therefore vacate the judgment and remand this case to the trial court for the entry of judgment on the misdemeanor offense of carrying a concealed gun.
Factual & Procedural History
The State's evidence tended to show the following:
On 19 February 2013 at 4:42 a.m., Winston-Salem Police Officer G.W. Lovejoy ("Officer Lovejoy") pulled over a gold Toyota Camry displaying an expired registration plate. Four people were inside the car, including Defendant, who was sitting in the back seat. Officer Lovejoy observed that Defendant was breathing heavily, refused to make eye contact, and was "shifting in his seat, as if he were sitting on something."
Officer Lovejoy called for additional officers to assist him. After the other officers arrived, the driver was arrested on a charge of marijuana possession and the two passengers other than Defendant were arrested on outstanding warrants. At that point, Defendant was the only occupant remaining in the car. Officer Lovejoy asked him to exit the vehicle. Defendant was "looking straight past [Officer Lovejoy]" and "wasn't listening to anything [Officer Lovejoy] was telling him[.]" Officer Lovejoy asked Defendant for identification. Defendant threw his wallet on the seat. Defendant then reached in his left back pocket and "started manipulating something."
Officer Lovejoy ordered Defendant to show his hands, but Defendant refused to comply. Defendant pulled something out of his back pocket and "shoved it down" between the transmission hump and a cooler located behind the driver's seat. Officer Lovejoy pulled Defendant out of the car, and Defendant started to run. Officer Lovejoy and other officers detained Defendant against the car. Another officer yelled "gun." Officer Lovejoy searched the back of the car and found a .380 automatic pistol in the same location he had seen Defendant place the object from his pocket. Officer Lovejoy also found an unspent round of .380 caliber ammunition in Defendant's back pocket.
Defendant was charged by warrant with felony carrying a concealed gun and resisting a public officer. On 28 October 2013, the Forsyth County grand jury returned a true bill on the same two charges. Count one of the indictment, alleging felony carrying a concealed gun, states 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
carry concealed about the defendant's person, while off the defendant's own premises, a .380 AUTOMATIC HANDGUN, which is a firearm. The defendant had previously been convicted of the misdemeanor of Carrying Concealed Gun which was punishable by 60 days. This misdemeanor was committed on January 21, 2009 and the defendant pled guilty to the misdemeanor on May 15, 2009 in Forsyth County, North Carolina and was sentenced to 30 days, suspended for 18 months of unsupervised probation.
Defendant's case was called for trial in Forsyth County Superior Court and on 7 May 2015, a jury found Defendant guilty of both charged offenses. The trial court consolidated the two convictions into one judgment, imposing a minimum sentence of five months and a maximum sentence of fifteen months imprisonment. The sentence was suspended and Defendant was placed on eighteen months of supervised probation. Defendant appeals his conviction and sentencing for felony carrying a concealed gun.
Analysis
Defendant contends that the indictment for felony carrying a concealed gun was fatally defective and deprived the trial court of subject matter jurisdiction. We agree.
"Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal." McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010).
Count one of the indictment alleged Defendant violated N.C. Gen. Stat. § 14-269(a1) (2015), which makes it "unlawful for any person willfully and intentionally to carry concealed about his or her person any pistol or gun . . . ." Within that first count, the State alleged that Defendant was previously convicted of misdemeanor carrying a concealed gun on 15 May 2009 in Forsyth County. N.C. Gen. Stat. § 14-269(c) provides that a defendant's first carrying concealed weapons offense is considered a Class 2 misdemeanor, whereas a second or subsequent offense is considered a Class H felony. "The procedure for elevating an offense of lower grade to one of higher grade based on the fact that the defendant has been previously convicted of an offense is delineated in N.C. [Gen. Stat.] § 15A-928." State v. Sullivan, 111 N.C. App. 441, 443, 432 S.E.2d 376, 377 (1993).
N.C. Gen. Stat. § 15A-928, entitled "[a]llegation and proof of previous convictions in superior court", provides in pertinent part:
(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 may not allege the previous conviction. If a reference to a previous conviction is contained in the statutory name or title of the offense, the name or title may not be used in the indictment or information, but an improvised name or title must be used which labels and distinguishes the offense without reference to a previous conviction.N.C. Gen. Stat. 15A-928 (2015).
(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. . . .
The State argues that this issue was not preserved for appeal because Defendant did not challenge the validity of the indictment before the trial court. Defendant contends, however, that "[t]he State's failure to properly allege the prior conviction is a jurisdictional defect, which can be addressed for the first time on appeal." Defendant's argument is supported by our caselaw. In State v. Ellis, 368 N.C. 342, 345, 776 S.E.2d 675, 678 (2015), our Supreme Court held that "since a valid bill of indictment or information is essential to the jurisdiction of the trial court to try an accused, the facial validity of a criminal pleading may be challenged for the first time on appeal if the appellate court has jurisdiction over the underlying case." (internal citations, quotation marks, and alternations omitted).
At trial, Defendant made a motion to dismiss the charges based on the argument that the State had failed to present sufficient evidence, that the evidence did not conform to the indictment, and that "due process grounds under the Fifth and Fourteenth Amendment[s] have not been satisfied."
In State v. Williams, the defendant "appeal[ed] from a judgment entered after a jury convicted him of assault on a female and felonious habitual misdemeanor assault." 153 N.C. App. 192, 193, 568 S.E.2d 890, 891 disc. rev. improvidently allowed, 356 N.C. 444, 573 S.E.2d 511 (2002). On appeal, the defendant argued that "the trial court lacked jurisdiction to sentence him for the felony of habitual misdemeanor assault where the indictment only charged assault on a female." Id. at 194, 568 S.E.2d at 892. This Court held the indictment charging habitual assault was invalid "due to lack of a special accompanying indictment as required by N.C. [Gen. Stat.] § 15A-928(b)[,]" id. at 196, 568 S.E.2d at 893, and vacated the defendant's felonious habitual misdemeanor conviction "because a special accompanying indictment was required and not rendered." Id. at 193, 568 S.E.2d at 891.
The State argues that "Williams does not say that failure to comply with section 15A-928 is a jurisdictional defect or even that an indictment that includes the allegation of a prior conviction in the same count as the principal offense is fatally defective." We disagree.
This Court held in Williams that "[a] valid indictment is a predicate for jurisdiction." 153 N.C. App. at 194, 568 S.E.2d at 892 (citations omitted). The Court stated the following:
We hold that the indictment was insufficient to charge defendant with the felony of habitual misdemeanor assault. N.C.G.S. § 15A-928(b)(2001) requires a "special accompanying indictment" for a charge which requires conviction on a lesser charge unless the prosecutor incorporates a separate count into the principal indictment. See State v. Sullivan, 111 N.C. App. 441, 442-44, 432 S.E.2d 376, 377-78 (1993). The absence of any indictment alleging violation of . . . habitual misdemeanor assault[] renders the principal indictment in this case one which charged defendant with only the misdemeanor of assault on a female. Without a valid indictment, there was no jurisdiction for the felony charge.Id. at 194-95, 568 S.E.2d at 892. The plain language and organizational structure of Williams make it clear that the issue before this Court was a jurisdictional challenge. The Court first held that the indictment was insufficient to charge the defendant with the felony charge. Id. at 194, 568 S.E.2d at 892. The Court then noted that section 15A-928 mandates that charges which require conviction on a lesser charge have either a special accompanying indictment or a separate count in the principal indictment. Id. The Court ultimately held that the absence of a separate indictment or separate count in the principal indictment alleging the felony charge rendered the principal indictment one for the misdemeanor offense of assault on a female. Id. at 194-95, 568 S.E.2d at 892. Significantly, the Court concluded that "without a valid indictment, there was no jurisdiction for the felony charge." Id. at 195, 568 S.E.2d at 892. Based on the language of Williams, violation of section 15A-928 is a jurisdictional defect that can be addressed for the first time on appeal to this Court.
To charge a defendant with felony carrying a concealed gun, the State must comply with N.C. Gen. Stat. § 15A-928 and allege the prior misdemeanor conviction in a special indictment or a separate count. Here, because the indictment for felony carrying a concealed gun incorporated the prior misdemeanor in the same count, "effectively rendering the indictment one which charged only a misdemeanor[,]" Sullivan, 111 N.C. App. at 443-44, 432 S.E.2d at 378, the trial court lacked jurisdiction to enter judgment on the felony conviction.
We hold that the indictment charging Defendant with felony carrying a concealed gun was invalid, because it was not accompanied by a separate indictment, nor did it allege the prior misdemeanor conviction in a separate count. Therefore, we vacate Defendant's conviction of felony carrying a concealed gun.
We also remand this matter to the superior court for entry of judgment on misdemeanor carrying a concealed weapon, following the procedure established by this Court in Williams. 153 N.C. App. at 196, 568 S.E.2d at 893 ("vacat[ing] [the] defendant's conviction of the felony of habitual misdemeanor assault[] and remand[ing] for entry of judgment on [the] defendant's conviction for assault on a female").
The State, citing N.C. Gen. Stat. § 7A-271(a) (2013), contends that if the superior court had no jurisdiction over the felony indictment, it necessarily had no jurisdiction over a misdemeanor charge of carrying a concealed gun or the charge of resisting a public officer. We are required to follow and apply decisions from other panels of this Court that have previously addressed the same question, absent a contrary ruling from a higher court. In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 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."). The State's contention is without merit.
Conclusion
For the aforementioned reasons, we vacate the judgment and remand this case to the trial court for the entry of judgment on the misdemeanor offense of carrying a concealed gun. Further, the trial court should resentence Defendant for resisting a public officer, which was consolidated for judgment with the felony carrying a concealed gun.
VACATED AND REMANDED.
Judges GEER and TYSON concur.
Report per Rule 30(e).