State v. Jones
| Decision Date | 04 November 2003 |
| Docket Number | No. COA02-1404.,COA02-1404. |
| Citation | 588 S.E.2d 5,161 NC App. 60 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Norman JONES. |
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defenders, Aaron Edward Carlos, and Constance E. Widenhouse, for defendant-appellant.
Norman Jones ("defendant") pled guilty to possession with intent to sell and deliver cocaine and to attaining the status of habitual felon. Defendant's plea was specifically conditioned upon his "right to appeal the denial of his habeas corpus motion, his motion to suppress evidence, and his motion to dismiss the habitual felon charge as being double jeopardy based on defendant's claim of unlawful detention maintained in his previously denied habeas corpus motion."
Although defendant specifically conditioned his entire plea agreement on appellate review, we find defendant's right to appeal is limited to the motion to suppress evidence and does not provide for review of the other motions. Since defendant is entitled to the benefit of his bargain, we vacate his guilty plea and remand the case to the trial court. However, pursuant to our jurisdiction under N.C. Gen.Stat. § 15A-979 to review defendant's motion to suppress, we may also review the trial court's jurisdiction. We find the trial court lacked jurisdiction over the habitual felon indictment because it was facially invalid. Accordingly, we also vacate defendant's guilty plea based on the habitual felon indictment.
The preliminary issue in this case is whether this Court has the authority to hear defendant's appeal. Although defendant and the State agreed he could appeal the delineated issues, "[j]urisdiction cannot be conferred by consent where it does not otherwise exist...." Wiggins v. Pyramid Life Insurance Co., 3 N.C.App. 476, 478, 165 S.E.2d 54, 56 (1969). The jurisdiction of the Court of Appeals is limited to that which "the General Assembly may prescribe." N.C. Const. Art. IV, § 12(2). State v. Pimental, 153 N.C.App. 69, 72, 568 S.E.2d 867, 869, disc. rev. denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
A defendant who pleads guilty has a right of appeal limited to the following:
Accordingly, in the case at bar, defendant has a right of appeal for his motion to suppress. N.C. Gen.Stat. §§ 15A-979(b), 15A-1444(e). Defendant does not have a right of appeal for the denial of his habeas corpus motion or for his motion to dismiss "based on defendant's claim of unlawful detention maintained in his previously denied habeas corpus motion." Defendant also sought review of an issue raised for the first time on appeal: that his constitutional and statutory rights were violated because a probable cause hearing was never held, and he did not waive his right to such a hearing. Since this issue does not fall within the statutory provisions, defendant also lacks an appeal of right on the probable cause hearing issue.
Where a defendant has no appeal of right, our statute provides for defendant to seek appellate review by a petition for writ of certiorari. N.C. Gen.Stat. § 15A-1444(e). However, our appellate rules limit our ability to grant petitions for writ of certiorari to cases where: (1) defendant lost his right to appeal by failing to take timely action; (2) the appeal is interlocutory; or (3) the trial court denied defendant's motion for appropriate relief. N.C.R.App. P. 21(a)(1) (2003). In considering appellate Rule 21 and N.C. Gen. Stat. § 15A-1444, this Court reasoned that since the appellate rules prevail over conflicting statutes, we are without authority to issue a writ of certiorari except as provided in Rule 21. State v. Nance, 155 N.C.App. 773, 574 S.E.2d 692 (2003); Pimental, 153 N.C.App. at 73-74, 568 S.E.2d at 870; State v. Dickson, 151 N.C.App. 136, 564 S.E.2d 640 (2002). Accordingly, we are without authority to review either by right or by certiorari the trial court's denial of defendant's motion for a writ of habeas corpus, his motion to dismiss which was based on his claim of unlawful detention maintained in his habeas corpus motion, or his assertion on appeal that he was denied a probable cause hearing.
Therefore, our first question is how to address defendant's appeal of right for the motion to suppress. Defendant pled guilty on the condition that he would have appellate review of his writ of habeas corpus, motion to suppress, and motion to dismiss. Defendant is entitled to appeal only the motion to suppress. Moreover, this Court lacks the authority to consider defendant's remaining assignments of error pursuant to a writ of certiorari. A North Carolina Supreme Court case provides guidance. The Court held that a defendant who pleads guilty is "entitled to receive the benefit of his bargain." State v. Wall, 348 N.C. 671, 676, 502 S.E.2d 585, 588 (1998). Where a defendant's bargain violates the law, the appellate court should vacate the judgment and remand the case to the trial court where defendant "may withdraw his guilty plea and proceed to trial on the criminal charges ... [or] withdraw his plea and attempt to negotiate another plea agreement that does not violate [State law]." Id. Accordingly, since defendant bargained for review of three motions and our Court may review only one, we will not address the substantive issues raised by the motion to suppress. Rather, pursuant to Wall, we vacate the plea and remand the case to the trial court, placing defendant back in the position he was in before he struck his bargain: he may proceed to trial or attempt to negotiate another plea agreement.
However, before doing so, we address a jurisdictional flaw in the habitual felon indictment.1 We may consider this flaw because "[e]very court necessarily has the inherent judicial power to inquire into, hear and determine questions of its own jurisdiction...." Lemmerman v. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986). Moreover, "the jurisdiction of the Court of Appeals is derivative; therefore, if the court from which the appeal is taken had no jurisdiction, the Court of Appeals cannot acquire jurisdiction by appeal." Wiggins, 3 N.C.App. at 478, 165 S.E.2d at 56. Although our power to consider jurisdiction is limited to those cases properly pending before the Court, we may consider the issue here because defendant has a right to appeal his motion to suppress. See State v. Absher, 329 N.C. 264,
265 & n. 1, 404 S.E.2d 848, 849 & n. 1 (1991) () Moreover, we recently held jurisdiction is essential to a court's authority to rule on a motion to suppress and therefore considered an attack to the trial court's jurisdiction, based on the fact defendant had not been indicted at the time of the hearing, pursuant to our review of the motion to suppress under N.C. Gen.Stat. § 15A-979.2
State v. Wolfe, 158 N.C.App. 539, 540, 581 S.E.2d 117, 118 (2003). Accordingly, we determine it is proper for this Court to address subject matter jurisdiction concerns in the case at bar.3
Defendant argued the habitual felon indictment4 was facially invalid because the indictment was supported by a prior offense that is a misdemeanor, not a felony. Therefore, defendant asserts, "[the indictment] fail[s] to give the trial court subject matter jurisdiction over the matter...." State v. Bullock, 154 N.C.App. 234, 244, 574 S.E.2d 17, 23 (2002),writ of supersedeas and disc. rev. denied, 357 N.C. 64, 579 S.E.2d 396, cert. denied, ___ U.S. ___, 124 S.Ct. 338, 157 L.Ed.2d 231 (2003). As with any challenge to subject matter jurisdiction, "a challenge to the sufficiency of an indictment may be made for the first time on appeal." Id.; Wood v. Guilford Cty., 355 N.C. 161, 164, 558 S.E.2d 490, 493 (2002).
In support of the habitual felon indictment, the State presented defendant's 1991 conviction for possession of cocaine. The essential question is whether this crime is a felony for habitual felon purposes. Our habitual felon law states "[f]or the purpose of this Article, a felony offense is defined as an offense which is a felony under the laws of the State...." N.C. Gen.Stat. § 14-7.1 (2001). Accordingly, the question for this Court is whether, under the laws of North Carolina, possession of cocaine is a misdemeanor or a felony.
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