State v. Neville, 9115SC828

• Decision Date: 15 December 1992
• Docket Number: No. 9115SC828,9115SC828
• Citation: 423 S.E.2d 496,108 N.C.App. 330
• Parties: STATE of North Carolina v. Bobby Porter NEVILLE.
• Court: North Carolina Court of Appeals

Page 496

423 S.E.2d 496

108 N.C.App. 330

STATE of North Carolina v. Bobby Porter NEVILLE.

No. 9115SC828.

Court of Appeals of North Carolina.

Dec. 15, 1992.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Philip A. Lehman, Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, Raleigh, for defendant-appellant.

WALKER, Judge.

On appeal defendant argues: (1) his guilty plea to uttering is a nullity because he never formally waived his right to a Bill of Indictment, and he was never indicted for uttering; and (2) the sentencing court erred in failing to find as a mitigating factor that the relationship between defendant and victim was an extenuating circumstance.

I.

Defendant pled guilty to uttering a forged instrument pursuant to a plea agreement and a Bill of Information which was signed by the prosecutor. Neither defendant nor his attorney signed the waiver of a Bill of Indictment attached to the Bill of Information, and the indictment issued against defendant alleged forgery. Defendant argues, therefore, that the court was without jurisdiction to accept the guilty plea and to enter judgment because he never formally waived his right to an indictment, and an indictment for forgery does not support a plea to uttering. We agree.

Article I, section 12, of the North Carolina Constitution requires an indictment, unless waived, for all criminal actions originating in Superior Court. See State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968). N.C.G.S. § 15A-642(c) provides:

Waiver of indictment must be in writing and signed by the defendant and his attorney. The waiver must be attached to or executed upon the bill of information.

In the instant case, we cannot conclude that defendant waived his right to an indictment because the waiver form was not signed by either defendant or his counsel pursuant to the statutory mandate. Although defendant was indicted for forgery, forgery is an offense distinct from that of uttering, such that an indictment for one will not support a plea of guilty to the other. See State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22 (1968). Thus, defendant was not indicted for uttering and did not formally waive his right to an indictment of this offense.

North Carolina law has long provided that "[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court acquires no jurisdiction whatever, and if it assumes jurisdiction a trial and conviction are a nullity." McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17-18 (1966). See also State v. Stokes, supra. In McClure, our Supreme Court vacated an order sentencing defendant to imprisonment where he was indicted with unlawfully, wilfully and feloniously carnally knowing a female child over twelve and under sixteen years of age, but entered a plea of guilty to an assault with intent to commit rape. The Court held that "there was no formal and sufficient accusation against him for the offense to which he pleaded guilty" so that the sentence of imprisonment violated defendant's constitutional rights. Id. at 215, 148 S.E.2d at 18. "[A] plea of guilty standing alone does not waive a jurisdictional defect." State v. Stokes, 274 N.C. at 412, 163 S.E.2d at 772.

In the case before us, the absence of a sufficient accusation or a formal waiver of indictment deprived the trial court of jurisdiction to accept defendant's plea and to enter judgment. Thus, defendant's plea and the court's judgment with regard to the charge of uttering must be vacated. The trial court is not precluded, however, from proceeding against defendant on a legally sufficient indictment for uttering. See State v. Stokes, supra. Additionally, by vacating defendant's guilty plea to uttering, which was entered pursuant to the State's agreement to dismiss the forgery charge, this portion of the agreement is nullified and the indictment alleging forgery survives.

II.

In defendant's second assignment of error, he alleges that the sentencing court erred in failing to find as a mitigating factor that the relationship between defendant and victim was an extenuating circumstance under N.C.G.S. § 15A-1340.4(a)(2)i, insofar as his actions towards Ms. Penny were a result of misguided love. We disagree.

N.C.G.S. § 15A-1340.4(a)(2)i provides for a statutory mitigating...