State v. McCulloch

Decision Date18 March 2014
Docket NumberNo. COA13–472.,COA13–472.
CourtNorth Carolina Court of Appeals
PartiesSTATE of North Carolina v. John Derrick McCULLOCH.

OPINION TEXT STARTS HERE

Appeal by defendant from judgments entered 16 November 2012 by Judge R. Stuart Albright in Wilkes County Superior Court. Heard in the Court of Appeals 10 October 2013.

Attorney General Roy Cooper, by Assistant Attorney General Tiffany Y. Lucas, for the State.

Gerding Blass, PLLC, by Danielle Blass, for Defendant.

ERVIN, Judge.

Defendant John Derrick McCulloch appeals from judgments revoking his probation and activating his suspended sentences based on a determination that he had willfully violatedthe terms and conditions of his probation without lawful excuse. On appeal, Defendant argues that the trial court lacked the authority to revoke his probation in certain of the cases which are before us at this time on the grounds that the jurisdictional prerequisites for taking that action had not been satisfied. After careful consideration of Defendant's and the applicable law, we conclude that certain of the trial court's probation revocation judgments should be reversed.

I. Factual Background
A. Wilkes County Judgments

On 7 January 2011, warrants for arrest were issued charging Defendant with eleven counts of identity theft and six counts of attempted identity theft. On 17 February 2011, warrants for arrest charging Defendant with five counts of felonious breaking or entering, one count of larceny of a firearm, three counts of felonious larceny, and two counts of injury to real property were issued. On 21 September 2011, properly executed informations charging Defendant with eight counts of conspiracy to commit identity theft, two counts of attempted identity theft, five counts of felonious breaking or entering, one count of larceny of a firearm, two counts of injury to real property, and four counts of felonious larceny were filed. On the same date, Defendant entered guilty pleas to eight counts of conspiracy to commit identity theft, two counts of attempted identity theft, five counts of felonious breaking and entering, one count of larceny of a firearm, four counts of felonious larceny, and two counts of injury to real property pursuant to a plea agreement which provided that, in return for Defendant's guilty pleas, the State would voluntarily dismiss nine counts of identity theft, three counts of attempted identity theft, and one count of driving while license revoked and that Defendant would receive ten consecutive suspended sentences, be placed on intensive probation, and make restitution to the victims of his conduct in an amount to be determined at a later time. After accepting Defendant's guilty pleas, Judge Jeanie R. Houston entered judgments which, when viewed in their entirety, sentenced Defendant to ten consecutive terms of nine to eleven months imprisonment which were each suspended for 36 months on the condition that Defendant pay the costs, a $250.00 fine, $1,716.00 in restitution, and a $937.50 attorney's fee; be placed on intensive probation; and comply with the usual terms and conditions of probation.

B. Ashe County Judgments

On 27 January 2011, a warrant for arrest charging Defendant with possession of a Schedule II controlled substance and possession of drug paraphernalia was issued. On 28 January 2011, a warrant for arrest charging Defendant with misdemeanor larceny was issued. On 18 February 2011, warrants for arrest charging Defendant with two counts of obtaining property by false pretenses were issued. On 3 March 2011, warrants for arrest charging Defendant with twelve counts of obtaining property by false pretenses were issued. On 12 June 2011, a warrant for arrest charging Defendant with misdemeanor larceny was issued. On 22 September 2011, Defendant entered no contest pleas to fourteen counts of obtaining property by false pretenses, one count of felonious possession of a Schedule II controlled substance, one count of misdemeanor possession of a Schedule II controlled substance, two counts of misdemeanor larceny, two counts of writing a worthless check, two counts of possession of drug paraphernalia, and two counts of driving while license revoked pursuant to a plea agreement under which the State agreed to voluntarily dismiss nine counts of obtaining property by false pretenses and under which Defendant would receive seven consecutive suspended sentences, be placed on probation, and pay restitution. Based on Defendant's no contest pleas, Judge David V. Byrd entered judgments which, viewed in their entirety, sentenced Defendant to seven consecutive terms of eleven to fourteen months imprisonment that were each suspended for a period of thirty-six months on the condition that Defendant pay the costs, $21,156.60 in restitution, and a $1,125.60 attorney fee; be placed on supervised probation; and comply with the usual terms and conditions of probation.1Defendant's probation in the Ashe County cases was transferred to Wilkes County.

C. Revocation of Defendant's Probation

On 16 November 2011, Defendant's probation officer filed violation reports requesting revocation of Defendant's probation in the ten Wilkes County and seven Ashe County cases on the grounds that Defendant had willfully failed to abide by his court-ordered curfew requirement, missed multiple appointments with his probation officer, and failed to make required monthly restitution and supervision fee payments. On 14 December 2011, Defendant's probation officer filed addenda to these violation reports alleging that Defendant had committed further violations of the terms and conditions of his probation by failing to abide by his curfew and leaving the jurisdiction of the court without permission.

A hearing concerning the allegations advanced in these violation reports was held before the trial court in Wilkes County Superior Court on 16 November 2012. At that hearing, Defendant admitted that he had willfully and without lawful excuse violated the terms and conditions of his probationary judgments and requested that he either be allowed to continue on probation, or in the alternative, that the Wilkes County sentences be served concurrently with the Ashe County sentences, with this request being predicated on the theory that the two groups of cases were connected. Defendant's mother, Linda McCulloch, who was the alleged victim in certain of the underlying cases, attributed Defendant's unlawful conduct and failures to comply with the terms and conditions of his probationary judgments to problems stemming from drug addiction and requested the trial court to be lenient. At the conclusion of the revocation hearing, the trial court stated that, even though Defendant “ha [d] been given chance after chance after chance after chance,” he had violated the terms and conditions of his probation when “the ink [was] not even dry on the judgment” and that the probationary process “didn't work for [Defendant] at all.” As a result, the trial court entered judgments finding that Defendant had willfully violated the terms and conditions of his probationary judgments without lawful excuse and had absconded, that his probation should be revoked, and that each of his seventeen suspended sentences should be activated and served consecutively.2 Defendant noted an appeal to this Court from the trial court's judgments.

II. Substantive Legal Analysis

The sole challenge to the trial court's judgments advanced in Defendant's brief is the assertion that the trial court lacked the authority to revoke his probation in the Ashe County cases. More specifically, Defendant contends that the trial court, which was sitting in Wilkes County Superior Court, lacked jurisdiction over the subject matter of the Ashe County cases as a result of the fact that the prerequisites for the revocation of a defendant's probation set out in N.C. Gen.Stat. § 7A–271(e) had not been satisfied. After carefully reviewing the record and the applicable law, we conclude that the trial court lacked jurisdiction to revoke Defendant's probation in the Ashe County felony cases.

A. Standard of Review

A trial court lacks the authority to decide a particular case in the absence of jurisdiction over the subject matter of that action. State v. Reinhardt, 183 N.C.App. 291, 292, 644 S.E.2d 26, 27 (2007) (citing In re N.R.M., 165 N.C.App. 294, 297, 598 S.E.2d 147, 149 (2004)). “Subject matter jurisdiction is conferred upon the courts by either the North Carolina Constitution or by statute.” Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987). “Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction.” State v. Gorman, ––– N.C.App. ––––, ––––, 727 S.E.2d 731, 733 (2012) (quoting Allred v. Tucci, 85 N.C.App. 138, 143, 354 S.E.2d 291, 295, disc. review denied,320 N.C. 166, 358 S.E.2d 47 (1987)).

The extent to which “a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592 (2010). [A]n appellate court necessarily conducts a statutory analysis when analyzing whether a trial court has subject matter jurisdiction in a probation revocation hearing, and thus conducts a de novo review.” State v. Satanek, 190 N.C.App. 653, 656, 660 S.E.2d 623, 625 (2008). As a result of the fact that “the issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte, State v. Webber, 190 N.C.App. 649, 650, 660 S.E.2d 621, 622 (2008), the fact that Defendant did not advance a particular argument before the trial court does not affect the extent to which we are required to evaluate its validity on appeal. On the contrary, the issue of whether the trial court had jurisdiction over...

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1 cases
  • State v. Craig
    • United States
    • Court of Appeal of North Carolina (US)
    • 18 Abril 2017
    ...jurisdiction is conferred upon the courts by either the North Carolina Constitution or by statute.’ " State v. McCulloch , ––– N.C. App. ––––, ––––, 756 S.E.2d 361, 364 (2014) (citing State v. Reinhardt , 183 N.C. App. 291, 292, 644 S.E.2d 26, 27 (2007), and quoting Harris v. Pembaur , 84 N......

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