State v. Wagner

• Decision Date: 20 December 2002
• Docket Number: No. 108A02.,108A02.
• Citation: 572 S.E.2d 777,356 N.C. 599
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Belvin E. WAGNER.

572 S.E.2d 777

356 N.C. 599

STATE of North Carolina v. Belvin E. WAGNER.

No. 108A02.

Supreme Court of North Carolina.

December 20, 2002.

Roy Cooper, Attorney General by Joan M. Cunningham, Assistant Attorney General, for the State.

J. Clark Fischer, Winston-Salem, for defendant-appellant.

Rudolph, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Chapel Hill, on behalf of the North Carolina Academy of Trial Lawyers, amicus curiae.

North Carolina Prisoner Legal Services, Inc. by Kristin D. Parks, amicus curiae.

PER CURIAM.

Defendant Belvin Eugene Wagner was originally arrested without a warrant when he attempted to purchase cocaine during an undercover drug operation on 17 July 1998 in which undercover law enforcement officers used blanched macadamia nuts as fake crack cocaine. On 17 August 1998, based on an information, defendant entered a negotiated guilty plea to the offense of attempted possession of cocaine as an habitual felon. This plea bargain provided that defendant would receive a minimum sentence of 101 months' imprisonment based on his criminal history, which was calculated to be at level VI. The trial court entered judgment sentencing defendant to serve 101 to 131 months' confinement.

Defendant thereafter filed a motion for appropriate relief asserting that his record level had been improperly calculated as a level VI when in fact his criminal history resulted in a level V for sentencing purposes. Concluding that defendant's plea bargain and guilty plea were based on "the mutual mistake of all parties as to [defendant's] proper record level for sentencing purposes," the trial court on 10 May 2000, nunc pro tunc 2 May 2000, vacated and set aside defendant's guilty plea and the judgment entered thereon.

On 15 May 2000 defendant was indicted for (i) attempt to possess cocaine, (ii) felonious possession of drug paraphernalia, and (iii) being an habitual felon. The paraphernalia on which this charge was based, an antenna used as a crack pipe, was found on defendant's person on 17 July 1998, at the time defendant was originally arrested for attempted possession of cocaine. The prosecutor subsequently offered defendant a plea bargain of 101 to 131 months' imprisonment, the same sentence he had received before his plea was vacated. Defendant rejected this offer of plea. Defendant moved to dismiss the paraphernalia indictment, claiming unconstitutional vindictive prosecution and violation of N.C.G.S. § 15A-1335. Defendant's motion to dismiss was denied.

On 17 October 2000 a jury found defendant guilty of attempt to possess cocaine, felonious possession of drug paraphernalia, and being an habitual felon. The trial court sentenced defendant at level VI to serve two consecutive 135- to 171-month sentences.

Before this Court defendant asserts that the Court of Appeals erred in upholding these convictions and sentences. Defendant again contends that the felony drug paraphernalia indictment after his successful motion for appropriate relief was based on unconstitutional vindictive prosecution and was in violation of N.C.G.S. § 15A-1335 and that the subsequent sentence for attempted possession of cocaine also violated N.C.G.S. § 15A-1335. Defendant does not challenge the trial court's finding of a record level VI for his criminal history.

Initially, we note that a jurisdictional issue not raised in the Court of Appeals has been raised in this Court, namely, that the 15 May 2000 indictment for felonious possession of drug paraphernalia is invalid on its face in that the charge of felonious possession of drug paraphernalia is not supported by any statute, a fact that the State concedes. N.C.G.S. § 90-95(e)(3), cited in the indictment, does not pertain to drug paraphernalia. For a court to have jurisdiction, "a criminal offense [must] be charged in the warrant or indictment upon which the State brings the defendant to trial." State v. Vestal, 281 N.C. 517, 520, 189 S.E.2d 152, 155 (1972). Inasmuch as the indictment for felonious possession of drug paraphernalia was facially invalid, the trial court never had jurisdiction over this charge. Moreover, appellate jurisdiction is derivative of the trial court's jurisdiction. State v. Earley, 24 N.C.App. 387, 389, 210 S.E.2d 541, 543 (1975); see also State v. Morgan, 246 N.C. 596, 599, 99 S.E.2d 764, 766 (1957). Therefore, the Court of Appeals also lacked jurisdiction to hear defendant's appeal of the felonious possession of drug paraphernalia conviction.

Accordingly, for lack of jurisdiction in the trial court, defendant's conviction for felonious possession of drug paraphernalia is void and is vacated. Similarly, the opinion of the Court of Appeals as it pertains to the conviction for felonious possession of drug paraphernalia is vacated. Having vacated defendant's conviction for felonious possession of drug paraphernalia, we do not need to address defendant's assignment of error challenging the trial court's denial of his motion to dismiss...