Opinion
No. COA13–69.
2013-08-6
STATE Of North Carolina v. Shawn Germaine FRALEY.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Michael E. Casterline, P.A., by Michael E. Casterline, for defendant-appellant.
Appeal by defendant from judgment entered 30 May 2012 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 6 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Michael E. Casterline, P.A., by Michael E. Casterline, for defendant-appellant.
CALABRIA, Judge.
Shawn Germaine Fraley (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of failure to register as a sex offender and of attaining habitual felon status. We find no error.
I. Background
On 24 September 2009, defendant was released from incarceration after serving a sentence for an Indecent Liberties with a Child conviction. Before he was released, defendant signed documentation acknowledging his duty to register as a sex offender no later than the third business day after being released from custody. According to the supervisor of the sex offender registry, defendant was to register by 29 September 2009.
Between 26 September 2009 and 3 October 2009, defendant encountered several law enforcement officers and claimed that he lived at Wilkes Drive. When the records custodian responsible for the sex offender registry in Forsyth County was notified, it appeared that defendant had failed to comply by registering as a sex offender. Defendant was arrested on 3 October 2009 and indicted for failure to register as a sex offender (“failure to register”) on 30 November 2009 (“initial indictment”). On 8 March 2010, defendant was indicted for attaining the status of an habitual felon. A superseding indictment charging defendant with attaining the status of an habitual felon was issued on 29 November 2010 (“habitual felon indictment”) . On all the indictments, the date of the offense was listed as 29 September 2009.
The purpose for the State's superseding indictment was to add defendant's aliases to the indictment. SeeN.C. Gen.Stat. § 15A–646 (2011).
In March 2011, defendant was tried in Forsyth County Superior Court for failure to register as a sex offender. Upon conclusion of the State's evidence, defendant moved to dismiss on the grounds that there was a fatal variance in the initial indictment for defendant's failure to register. Defendant argued that the date was an essential element of the offense and that he was not guilty for failing to register on 29 September 2009. The trial court denied the State's motion to amend the initial indictment to change the dates of the offense and granted defendant's motion to dismiss.
On 18 April 2011, defendant was indicted under a new indictment for failure to register (“second indictment”). On the second indictment, the date of the offense was corrected to begin on 30 September 2009 through 3 October 2009. Defendant filed a motion to dismiss the second indictment on the grounds that a trial under the second indictment would violate his right to be free from double jeopardy. The trial court denied his motion to dismiss. Defendant subsequently renewed his motion to dismiss based on double jeopardy and the trial court denied this motion as well.
In May 2012, after a second trial for failing to register as a sex offender, the jury returned a verdict finding defendant guilty of failing to register as a sex offender. The jury also found defendant guilty of attaining the status of an habitual felon. Defendant was sentenced to a minimum of 141 months and a maximum of 179 months in the North Carolina Division of Adult Correction. Defendant appeals.
II. Double Jeopardy
Defendant argues that the trial court erred by denying his motion to dismiss because he claims he was tried twice for the same offense that was dismissed at a previous trial. According to defendant, the State violated the double jeopardy provisions of the state and federal constitutions. We disagree.
On appeal, this Court reviews the trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). The doctrine of double jeopardy “provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb.” State v. Sparks, 182 N.C.App. 45, 47, 641 S.E.2d 339, 341 (2007) (citation and quotations omitted). “[T]he Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” State v. Rahaman, 202 N.C.App. 36, 40, 688 S.E.2d 58, 62 (2010) (citations and quotations omitted). “[W]hen the trial court grants a defendant's motion to dismiss at the close of evidence, that ruling has the same effect as a verdict of not guilty.” Id. at 43, 688 S.E.2d at 64;seeN.C. Gen.Stat. § 15–173 (2011). “However, the 5th Amendment right to be free from double jeopardy only attaches in a situation where the motion to dismiss is granted due to insufficiency of the evidence to support each element of the crime charged.” Rahaman, 202 N.C.App. at 44, 688 S.E.2d at 64. Double jeopardy does not preclude a retrial when a charge is dismissed because there was a fatal variance between the proof and the allegations in the charge. Id.; see also State v. Johnson, 9 N.C.App. 253, 175 S.E.2d 711 (1970).
In the instant case, defendant was released on 24 September 2009. According to the statute, defendant had three business days to comply and the deadline for him to register was 30 September. SeeN.C. Gen.Stat. § 14–208.7(a)(1) (2011). The initial indictment charged defendant with failing to register on 29 September. The trial court granted defendant's motion to dismiss the initial indictment. Subsequently, the State issued the second indictment charging defendant with failure to register as a sex offender and corrected the dates to begin on 30 September through 3 October 2009.
Defendant's reliance on N.C. Gen.Stat. § 15–173 is misplaced. Here, the trial court granted defendant's motion to dismiss the initial indictment due to a fatal variance between the initial indictment and the proof at trial, not due to insufficiency of the evidence. The State was permitted to retry defendant because the second indictment, charging him for failing to register, corrected the dates of the offense. As a result, the trial court did not violate defendant's double jeopardy provisions of the state and federal constitutions and did not err by denying defendant's motion to dismiss.
Defendant also argues that failure to register is a continuing offense and therefore, he can only be charged once. However, defendant's initial indictment for failure to register was dismissed. Double jeopardy does not preclude a retrial when a charge is dismissed because there was a fatal variance between the proof and the allegations in the charge. Therefore, there was no original offense to “continue.” Rather, after the initial indictment was dismissed, the State issued the second indictment charging defendant with failure to register from 30 September to 3 October. Unlike defendant's claim, the State did not attempt to “divide a single act ... into as many counts ... as the prosecutor could devise.” State v. White, 127 N.C.App. 565, 570, 492 S.E.2d 48, 51 (1997). Therefore, defendant's argument has no merit.
III. Jurisdiction over the Habitual Felon Indictment
Defendant argues that the trial court lacked jurisdiction to sentence him as an habitual felon because the habitual felon indictment was ancillary to the substantive charge and should have been dismissed at the time the initial indictment for failure to register was dismissed. We disagree.
On appeal, this Court reviews the sufficiency of an indictment de novo. State v. McKoy, 196 N.C.App. 650, 652, 675 S.E.2d 406, 409 (2009).
As an initial matter, defendant's jurisdictional argument depends on the timing of the substantive felony. An habitual felon indictment may be filed prior to, together with, or after the substantive felony indictment. See State v. Blakney, 156 N.C.App. 671, 675, 577 S.E.2d 387, 390 (2003). However, a trial court does not have jurisdiction over an habitual felon indictment when the habitual felon indictment is returned prior to the commission of the substantive felony. State v. Ross, –––N.C.App. ––––, ––––, 727 S.E.2d 370, 374 (2012), review denied,––– N.C. ––––, 738 S.E.2d 369 (2013). Nor can an habitual felon indictment attach to felony proceedings where the defendant has already been convicted, or pled guilty to the substantive felony. See State v. Allen, 292 N.C. 431, 436, 233 S.E.2d 585, 589 (1977).
In the instant case, the substantive felony was failure to register and although the initial indictment had been dismissed, defendant had already committed criminal conduct to which the habitual felon indictment could attach. See Blakney, 156 N.C.App. at 675, 577 S.E.2d at 390. When the State filed the second indictment for failure to register, the habitual felon indictment attached to the second indictment. Since the offenses listed on the second indictment occurred before the habitual felon indictment came into existence, the principle set forth in Ross is inapplicable. Allen also does not apply because defendant had only been indicted, not convicted, of failure to register, nor had he pled guilty. Since there was a pending prosecution, the habitual felon indictment could attach to the second indictment and the State properly prosecuted both offenses together. Therefore, the trial court had jurisdiction over the habitual felon indictment.
Defendant relies on State v. Barnes, 121 N.C.App. 503, 466 S .E.2d 294 (1996) and State v. Justice, ––– N.C.App. ––––, 723 S.E.2d 798 (2012) to validate his argument that the trial court should have dismissed his habitual felon indictment when his motion to dismiss the initial indictment for failure to register was granted. In Barnes, this Court determined that the defendant could only be convicted for misdemeanor larceny. 121 N.C.App. at 506, 466 S.E.2d at 296. Since there was a misdemeanor prosecution, but no pending felony prosecutions for the habitual felon indictment to attach to, this Court dismissed the indictment because without a pending felony prosecution there can be no habitual felon indictment. Id.
In Justice, the defendant was convicted and sentenced for larceny from a merchant and attaining the status of an habitual felon. ––– N.C.App. at ––––, 723 S.E.2d at 800. This Court arrested judgment on the larceny from a merchant charge because the indictment was fatally flawed. Id. at ––––, 723 S.E.2d at 802. Since judgment against the defendant had already been entered for attaining the status of an habitual felon, and “[b]eing an habitual felon is not a crime and cannot support, standing alone, a criminal sentence” this Court reversed the habitual felon judgment and remanded for dismissal of the habitual felon indictment. Id. (citation and quotations omitted).
The instant case is distinguishable from Barnes and Justice . Here there was a pending felony prosecution for failure to register. Therefore, the habitual felon indictment could attach to defendant's pending prosecution because the second indictment for the felony offense of failure to register from 30 September 2009 through 3 October 2009 was not dismissed. Justice is also distinguishable. Here, defendant was not sentenced as an habitual felon as a result of the initial indictment because defendant's initial indictment for failure to register was dismissed. Therefore, the trial court did not err by deciding that the habitual felon indictment could attach to the pending prosecution for failure to register.
IV. Conclusion
The trial court did not err when it denied defendant's motion to dismiss based on the double jeopardy provisions of the state and federal constitutions. The State may retry a defendant when the trial court has granted a motion to dismiss due to a fatal variance between the indictment and the proof at trial. The trial court also did not err by exercising jurisdiction over the habitual felon indictment, because at the time the habitual felon indictment was issued, defendant had a pending felony prosecution for failure to register to which the indictment could attach. As long as there is a pending felony prosecution for an habitual felon indictment to attach to, the trial court may exercise jurisdiction over an habitual felon indictment even when the initial indictment was dismissed.
No error. Judges STROUD and DAVIS concur.
Report per Rule 30(e).