State v. Harwood

• Decision Date: 06 August 2013
• Docket Number: No. COA12–1301.,COA12–1301.
• Citation: 746 S.E.2d 445
• Parties: STATE of North Carolina v. Edward Jay HARWOOD.
• Court: North Carolina Court of Appeals

746 S.E.2d 445

STATE of North Carolina

v.Edward Jay HARWOOD.

No. COA12–1301.

Court of Appeals of North Carolina.

Aug. 6, 2013.

Certiorari review of order entered 15 August 2012 by Judge Gary M. Gavenus in Buncombe County Superior Court. Heard in the Court of Appeals on 27 February 2013.

Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.

The Law Office of Bruce T. Cunningham, Jr., by Amanda S. Zimmer, for Defendant–Appellant.

ERVIN, Judge.

Defendant Edward Jay Harwood challenges an order denying a motion for appropriate relief in which he sought to have eighteen of the nineteen convictions for possession of a firearm by a felon resulting from a plea of guilty which he entered on 24 July 2007 vacated. In his brief, Defendant argues that this Court should reverse the trial court's order and afford him relief from eighteen of his nineteen convictions on the basis that those convictions are inconsistent with our decision in State v. Garris, 191 N.C.App. 276, 663 S.E.2d 340,disc. review denied,362 N.C. 684, 670 S.E.2d 907 (2008), which held that a defendant who had previously been convicted of a felony could only be convicted of and sentenced one time for the simultaneous possession of multiple firearms on a single occasion and on the grounds that, in light of Garris, the challenged judgments violate the state and federal constitutional provisions against placing a criminal defendant in jeopardy twice for the same offense. After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.

I. Factual Background

On 16 March 2007, agents from the Buncombe County Anticrime Taskforce went to Defendant's home in Fairview for the purpose of investigating complaints that Defendant had been selling marijuana and crack cocaine. As the agents approached his home, they encountered Defendant in his yard. Following a brief conversation with the agents, Defendant consented to a search of his residence. During the course of the ensuing search, Defendant told the agents that he had a small amount of marijuana in the home and showed it to them. At that point, Agent T.R. Goodridge asked Defendant if he had any weapons in the home. Although Defendant responded in the affirmative, he stated that he believed that he was legally entitled to have them in his possession. In reply, Agent Goodridge informed Defendant that, given his status as a convicted felon, he could not lawfully possess any firearms or ammunition. As a result, the investigating officers seized the marijuana and the nineteen firearms which they found in Defendant's residence. Agent Goodridge also cited Defendant for possessing marijuana.

On 23 March 2007, warrants for arrest were issued charging Defendant with nineteen counts of possession of a firearm by a felon. On 4 June 2007, the Buncombe County grand jury returned bills of indictment charging Defendant with nineteen counts of possession of a firearm by a felon. On 24 July 2007, Defendant entered a plea of guilty to nineteen counts of possession of a firearm by a felon and one count of misdemeanor possession of marijuana, with these guilty pleas having been tendered on the understanding that Defendant's convictions would be consolidated for judgment into “2 class G felonies.” After accepting Defendant's guilty pleas, Judge Ronald K. Payne sentenced Defendant to a term of 16 to 20 months imprisonment based upon his conviction for one count of possession of a firearm by a felon, suspended Defendant's active sentence for 30 months, and placed Defendant on supervised probation subject to a number of terms and conditions. In addition, Judge Payne consolidated Defendant's convictions for possession of marijuana and eighteen counts of possession of a firearm by a felon for judgment and sentenced Defendant to a consecutive term of 16 to 20 months imprisonment, with this sentence suspended for the same period and subject to the same terms and conditions as was the case with respect to Defendant's other conviction for possession of a firearm by a felon.

On 24 September 2007, Defendant was charged with violating the terms and conditions of his probation. At approximately the same time, Defendant was also charged with possession of cocaine with the intent to sell and deliver, maintaining a dwelling place for the purpose of using controlled substances, two counts of possession of a firearm by a felon, two counts of conspiracy to traffic in opium or heroin, four counts of trafficking in opium or heroin, possession of a Schedule IV controlled substance with the intent to sell or deliver, and having attained habitual felon status. On 4 February 2008, Defendant entered pleas of guilty to these additional charges and consented to the revocation of his probation and the activation of his suspended sentences on the condition that certain of his convictions would be consolidated for judgment, that he would be imprisoned for a term of least 102 to 132 months stemming from certain of these additional charges, that he would be sentenced to a concurrent term of at least 70 to 84 months for the remaining additional charges, and that his activated suspended sentences would be served concurrently with his sentences for these new convictions. Judge James Baker entered judgments consistent with Defendant's negotiated plea on the same date. Defendant completed serving these sentences on 21 September 2010.

On 15 July 2008, this Court issued its decision in Garris, in which we construed N.C. Gen.Stat. § 14–415.1(a) to permit only one conviction for the simultaneous possession of multiple firearms by a convicted felon. See Garris, 191 N.C.App. at 285, 663 S.E.2d at 348. As we explained in our opinion in that case:

In the instant case, a review of the applicable firearms statute shows no indication that the North Carolina Legislature intended for N.C. Gen.Stat. § 14–415.1(a) to impose multiple penalties for a defendant's simultaneous possession of multiple firearms. Here, defendant was not only convicted twice for possession of a firearm by a felon but was also sentenced twice.... Upon review, we hold that defendant should be convicted and sentenced only once for possession of a firearm by a felon based on his simultaneous possession of both firearms.

Id. In light of this Court's decision in Garris, Defendant filed a motion for appropriate reliefon 1 July 2011 seeking to have eighteen of his nineteen convictions for possession of a firearm by a felon vacated. ¹ More specifically, Defendant asserted in his motion for appropriate relief that he was entitled to the requested relief because our decision in Garris constituted a significant change in law that should be given retroactive effect and because his convictions for multiple counts of possession of a firearm by a felon arising from the simultaneous possession of multiple firearms violated his state and federal constitutional right not to be placed in jeopardy twice for the same offense. On 20 February 2012, Judge Sharon Tracey Barrett entered an order requiring the State to file an answer to Defendant's motion for appropriate relief. On 13 March 2012, the State filed an answer to Defendant's motion for appropriate relief in which the State argued that Garris should not be applied retroactively and that Defendant's motion for appropriate relief should be denied. On 15 March 2012, Judge Barrett entered an order setting Defendant's motion for appropriate relief for hearing at the 16 April 2012 criminal session of the Buncombe County Superior Court for the purpose of determining “what additional motions, if any, may need to be addressed with respect to the Defendant” and “for the Court to hear and consider legal argument concerning the present Motion.”

Defendant's motion for appropriate relief came on for hearing before the trial court at the 11 June 2012 criminal session of the Buncombe County Superior Court.² On 15 August 2012, the trial court entered an order denying Defendant's motion for appropriate relief. In its order, the trial court made findings of fact which are essentially consistent with the substantive and procedural summary set out above and then “concluded” that:

8. The purpose and effect of the Garris decision was to clarify what the court found to be an uncertainty in the literal language of [N.C. Gen.Stat. § ] 14–415.14[sic] as to whether it provided for multiple convictions of the offense for simultaneous possession of multiple firearms. Finding no indication that the legislature intended such a result, and applying the rule of lenity, the court held that a defendant can only be convicted once for simultaneous possession of multiple firearms.

[9]. Between 2004 and 2008, the provisions of N.C. [Gen.Stat. § ] 14–415.1 were applied in the 28th Prosecutorial District and no doubt statewide to multiple convictions for simultaneous acts of possession of firearms by felons. Although the court does not know the exact number of such cases the court concludes that such knowledge is not essential to a determination as to whether a retroactive application of Garris is appropriate.

[10]. To apply Garris retroactively could easily disrupt the orderly administration of our criminal law. It would cast doubt upon verdicts of guilty and pleas of guilty in all cases involving multiple convictions for simultaneous possession of multiple firearms which occurred between 2004 and 2008. It further would cast doubts upon sentences imposed upon these individuals for subsequent crimes where the multiple convictions were applied in determining sentencing points. And all of these individuals could each seek either release or new trials in post-conviction proceedings.

On 6 August 2012, Defendant filed a petition seeking the issuance of a writ of certiorari authorizing review of the trial court's order by this Court. ³ On 16 August 2012...