State v. Peele

• Decision Date: 01 March 2016
• Docket Number: No. COA15–480.,COA15–480.
• Citation: 246 N.C.App. 159,783 S.E.2d 28
• Parties: STATE of North Carolina v. Martin Luther PEELE.
• Court: North Carolina Court of Appeals

246 N.C.App. 159

783 S.E.2d 28

STATE of North Carolina

v.Martin Luther PEELE.

No. COA15–480.

Court of Appeals of North Carolina.

March 1, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General, Jason R. Rosser, for the State.

Meghan A. Jones, for defendant-appellant.

BRYANT, Judge.

Where the State failed to meet the requirements of Rule 9(b), and where the State's evidence was insufficient to confer subject matter jurisdiction upon the trial court for the revocation of defendant's probation in Case Nos. 11 CRS 543–45, we vacate the judgments imposed in those cases. In Case Nos. 12 CRS 1214–19, we remand to the trial court for correction of clerical errors.

On 13 January 2009, defendant Martin Luther Peele was indicted for two counts of obtaining property by false pretenses in violation of N.C. Gen. Stat. § 14100, a Class H felony. On 6 April 2009, defendant was indicted for thirty-one additional counts of obtaining property by false pretenses. In 2009, defendant was also charged with a Class 2 misdemeanor, fraudulent disposal of personal property on which there was a security interest, in violation of N.C. Gen.Stat. § 14–114. The charges of obtaining property by false pretenses arose from separate incidents occurring in 2007 and 2008. Defendant owned a business for the construction of metal buildings, and the charges alleged that in each case, defendant had received money to construct a building and then either failed to perform work or performed work that was defective.

On 24 February 2010, a jury found defendant guilty of two charges of obtaining property by false pretenses, and defendant pled guilty to the misdemeanor charge of fraudulent disposal of personal property.

The court imposed consecutive sentences in Case Nos. 11 CRS 543–45. Defendant was sentenced in Case No. 11 CRS 543 to a suspended sentence of thirty days imprisonment and placed on supervised probation for eighteen months for fraudulent disposal of personal property. In Case Nos. 11 CRS 544 and 545, defendant was given a suspended sentence of six to eight months imprisonment, placed on supervised probation for forty-eight months, and ordered to pay restitution in the amount of $5,360.00.

On 1 March 2011, defendant entered pleas of guilty to twenty-seven charges of obtaining property by false pretenses and four charges of the misdemeanor offense of failing to perform work for which he had been paid, the latest of which occurred in April of 2007. Defendant's pleas were entered pursuant to a plea bargain under the terms of which he agreed to pay $45,276.47 as restitution to the victims of these offenses. The State agreed to dismiss other charges pending against defendant and to dismiss all charges arising from theses offenses that had been lodged against defendant's wife.

The thirty-one charges were consolidated into six cases for purposes of sentencing, and consecutive sentences of eight to ten months imprisonment were imposed in each case. These sentences were suspended, and in each case defendant was placed on probation for sixty months. The following chart summarizes the judgments and the original terms of probation.

  Consecutive SentencesOriginal TermJudgment DateFile No.Charge No./Nos.in 11 CRS 543–45of Probation10 February 201011 CR 54309 CR 299230 Days18 Months24 February 201011 CRS 54408 CRS 514796–8 Months48 Months24 February 201011 CRS 54508 CRS 514816–8 Months48 Months   Consecutive Sentences in 12 CRS 1214–19 1 March 201112 CRS 121408 CRS 55446, 55448, 55452, 55454, 55455, 55458, 55459, 554628–10 Months60 Months1 March 201112 CRS 121508 CRS 55463, 55466, 55467, 55470, 56978, 56981, 56982, 56985, 569868–10 Months60 Months1 March 201112 CRS 121608 CRS 56989, 56991, 56995, 569978–10 Months60 Months1 March 201112 CRS 121708 CRS 57000, 57001, 57005, 570078–10 Months60 Months1 March 201112 CRS 121808 CRS 57010, 57011, 570148–10 Months60 Months1 March 201112 CRS 121908 CRS 57015, 57309, 09 CRS 507858–10 Months60 Months

On 7 August 2014, violation reports were filed in each of the nine cases discussed above—three cases from 2010 and six cases from 2011. All of the violation reports alleged that on 4 June 2014, defendant was convicted of obtaining property by false pretenses, in violation of the requirement that defendant commit no criminal offenses while on probation. On 15 October 2014, the trial court revoked defendant's probation in all nine cases and activated the prison sentences in each case.

The trial court ordered the terms of imprisonment in Case Nos. 11 CRS 543–45 to be served consecutively, with these three consecutive sentences to be served concurrently with the six consecutive sentences activated in Case Nos. 12 CRS 1214–19. Defendant appealed to this Court from the judgments revoking his probation.

_________________________

On appeal, defendant argues (1) that the trial court lacked subject matter jurisdiction to revoke his probation in Case Nos. 11 CRS 543–45 and (2) the trial court made clerical errors in Case Nos. 11 CRS 544–45 and 12 CRS 1214–19 requiring remand for correction of those errors.

I

Defendant first argues that the trial court lacked subject matter jurisdiction to revoke his probation in Case Nos. 11 CRS 543–45 because the State failed to prove that the violation reports were timely filed. We agree.

Defendant's Motion to Strike the State's Rule 9(b)(5) Supplement and All References to the Supplement in the State's Brief

On 13 May 2015, defendant filed his appellant brief with this Court and served it on the State by email. On 12 June 2015, the State electronically filed its appellee brief and filed in person a Rule 9(b)(5) Supplement to the Printed Record on Appeal. On 18 June 2015, defendant filed a Motion to Strike the State's Rule 9(b)(5) Supplement and All References to the Supplement in the State's Brief. On 23 June 2015, the State filed a Response to defendant's Motion.

In his Motion to Strike, defendant argues that the State's 9(b)(5) supplement fails to satisfy Rule 9 as the documents the State seeks to present to this Court in its supplement cannot be properly included as they were not introduced at the 15 October 2014 probation violation hearing. We agree and, for the reasons stated herein, grant defendant's motion to strike.

Rule 9 of our Rules of Appellate Procedure governs the filing of the record on appeal. N.C. R.App. P. 9 (2015). In a criminal appeal, the record should contain all matters presented before the trial court, including

copies of all other papers filed and statements of all other proceedings had in the trial courts which are necessary for an understanding of all issues presented on appeal, unless they appear in the verbatim transcript of proceedings which is being filed with the record pursuant to Rule 9(c)(2) [.]

Id. 9(a)(3)(i). Where the record on appeal is insufficient to answer the issues presented on appeal, the record may be supplemented by items allowed under Rule 9, so long as those items "could otherwise have been included pursuant to this Rule 9." Id. 9(b)(5)(a).

It is well-settled that this Court may "only consider the pleadings and filings before the trial court...." Twaddell v. Anderson, 136 N.C.App. 56, 68, 523 S.E.2d 710, 719 (1999) (citation omitted). This Court has specifically rejected the State's attempt to supplement the Settled Record on Appeal with documents that were never presented to the trial court in order to prove that a defendant's probation was tolled. See, e.g., State v. Karmo, No. COA12–1209, 2013 WL 4006648, *4–5 (N.C.Ct.App. Aug. 6, 2013) (unpublished).

In Karmo, an unpublished case but directly on point here, the State filed a supplement to the record along with its brief containing documents tending to show that the defendant had received various criminal convictions stemming from incidents which took place while the defendant was on probation. Id. This Court categorically found that it "lack[ed] authority to consider the information contained in the supplemental materials presented for [this Court's] consideration by the State" because "the record before [this Court] contain[ed] no indication that the documents contained in the supplement ... were admitted into evidence at Defendant's revocation hearing." Id. Accordingly, this Court concluded that because

nothing in the record developed before the trial court tend[ed] to show that Defendant committed any criminal offenses during, as compared to before or after, his initial probationary period. As a result, we have no choice but to conclude that the State failed to demonstrate that the trial court had jurisdiction to consider the revocation of Defendant's probation and the activation of Defendant's suspended sentence.

Id. at *3 (emphasis added).

Here, just like the State's supplement in Karmo, the State's Rule 9(b)(5) supplement was filed in order to submit to this Court certain documents which were not presented to the trial court which, had they been, would have conferred subject matter jurisdiction on the trial court to revoke defendant's probation in Case Nos. 11 CRS 543–45. But those documents were not introduced at the 15 October 2014 probation violation hearing in the trial court, even though it is the State's burden to establish jurisdiction in that court.

State v. Williams, 230 N.C.App. 590, 595, 754 S.E.2d 826, 829 (2013) ; State v. Moore, 148 N.C.App. 568, 571, 559 S.E.2d 565, 566–67 (2002) ("The burden of perfecting the trial court's jurisdiction for a probation revocation hearing ... lies squarely with the State."); State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 835 (1993) ("North Carolina requires the State to prove jurisdiction beyond a reasonable doubt in a criminal case").

The State argues that, because the documents included in the State's Rule 9(b)(5) Supplement were filed with the trial court in the case files of the former proceedings, and because they are necessary for an understanding of the issues presented on appeal, they are properly part of the record here. N.C....