Opinion
No. COA11–1076.
2012-04-17
STATE of North Carolina v. Martin Cornelius MILLS.
Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State. Kimberly P. Hoppin for defendant-appellant.
Appeal by defendant from judgment entered 20 May 2011 by Judge H. William Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State. Kimberly P. Hoppin for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Martin Cornelius Mills (“defendant”) appeals from judgment entered upon his convictions for multiple drug charges and having attained habitual felon status. He contends the trial court lacked subject matter jurisdiction to enter judgment where the habitual felon indictment failed to specify the supporting felonies. We find no error.
On 23 August 2010, defendant was indicted on two counts each of: possession with intent to sell or deliver cocaine, possession with intent to sell or deliver marijuana, sale of cocaine, and sale of marijuana. On 27 September 2010, defendant was indicted for having attained habitual felon status, based upon the following prior felonies: (1) possession of stolen goods committed on or about 6 June 1999, with a conviction date of 24 January 2002; (2) possession with intent to sell or deliver cocaine committed on or about 25 October 2002, with a conviction date of 8 January 2004; and (3) breaking and entering committed on or about 17 October 2006, with a conviction date of 12 December 2006.
The matter came on for trial at the 18 May 2011 session of criminal court in Mecklenburg County. The jury returned verdicts of guilty on each of the eight substantive offenses. Defendant was then tried on his status as an habitual felon. He moved to dismiss the habitual felon indictment on the basis that he was convicted of three offenses on 24 January 2002, and, since the indictment did not list case numbers, it failed to specify which offense was being used from that date.
The State introduced documentary evidence showing that defendant was convicted of felony possession of stolen goods on 24 January 2002 in case number 00 CRS 105003. Defendant pointed out that the bill of information for that case listed the date of offense as 6 June 1999, whereas the judgment listed the date of offense as 7 June 1999. Over defendant's objection, the trial court determined that the date discrepancy constituted a clerical error and denied defendant's motion to dismiss the habitual felon indictment.
The jury returned a verdict of guilty on the habitual felon status charge. The trial court consolidated all the offenses into one judgment and sentenced defendant as a Class C felon to a term of 146 to 185 months imprisonment. Defendant appeals.
Defendant argues that his motion to dismiss the habitual felon indictment should have been granted because it fails to sufficiently specify which of several felonies from the same conviction date was used to support the habitual felon status. Defendant contends that the indictment is fatally defective, thereby depriving the trial court of subject matter jurisdiction to enter judgment and sentence defendant as an habitual felon. We do not agree.
We review the sufficiency of an indictment de novo. State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712 (2008). An habitual felon indictment must set forth:
the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.
N.C. Gen.Stat. § 14–7.3 (2011). An habitual felon indictment must “give defendant notice of the felonies on which [the State] is relying to support the habitual felon charge.” State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995).
Defendant argues that the indictment did not provide sufficient notice of the felonies used by the State to support habitual felon status and that the State's proffer of evidence demonstrates that the indictment was not clear on its face. We are not persuaded. The habitual felon indictment here meets the requirements of N.C. Gen.Stat. § 14–7.3 by stating the nature of the prior felonies, the date the offenses were committed, the dates of conviction, and the identity of the court which convicted defendant. The fact that defendant was convicted of three counts of the same offense on the same conviction date does not require the State to provide more detail than what is required by statute. The State presented sufficient information to put defendant on notice that a felony possession of stolen goods conviction from 24 January 2002 was being used to support habitual felon status.
Defendant also argues that the variance in the date of offense contained in the State's evidentiary support indicates the lack of specificity in the habitual felon indictment, since one of the dates does not match the date of offense listed in the habitual felon indictment. However, this Court has held that “the date alleged in the indictment is neither an essential nor a substantial fact as to the charge of habitual felon.” State v. Locklear, 117 N.C.App. 255, 260, 450 S.E.2d 516, 519 (1994). “A variance as to time, however, becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense.” State v. Price, 310 N.C. 596, 599, 313 S.E.2d 556, 559 (1984). The two documents introduced by the State are such that one gives the date of offense as 6 June 1999 and the other 7 June 1999. The habitual felon indictment listed the date of offense “on or about June, 6, 1999.” Where the variance consists of a single day and appears in only one of the two documentary offerings, we hold that the variance was not so great as to deprive defendant of an opportunity to defend himself. Accordingly, we conclude that the habitual felon indictment was sufficient on its face to support the offense of attaining habitual felon status.
No error. Judges BRYANT and GEER concur.
Report per Rule 30(e).