State v. Pennell

Decision Date06 August 2013
Docket NumberNo. COA12–1269.,COA12–1269.
Citation746 S.E.2d 431
PartiesSTATE of North Carolina v. William Herbert PENNELL, IV.
CourtNorth Carolina Court of Appeals

OPINION TEXT STARTS HERE

Appeal by Defendant from judgments entered 5 June 2012 by Judge Christopher W. Bragg in Superior Court, Iredell County. Heard in the Court of Appeals 12 March 2013.

Attorney General Roy Cooper, by Assistant Attorney General Deborah M. Greene, for the State.

Yoder Law PLLC, by Jason Christopher Yoder, for Defendant.

McGEE, Judge.

William Herbert Pennell, IV (Defendant) was indicted on 2 November 2009 for one count of breaking or entering and one count of larceny after breaking or entering in 09 CRS 53255, for offenses that occurred on 12 February 2009; and one count of felony possession of cocaine in 09 CRS 53992, for an offense that occurred on 23 May 2009. On that same day, Defendant waived indictment on an information alleging one count of breaking or entering and one count of larceny after breaking or entering in 10 CRS 57417, for offenses that occurred on 22 August 2010. Defendant pleaded guilty on 2 December 2010 to those five charges in return for a negotiated plea agreement suspending the sentences and placing Defendant on supervised probation for thirty-six months. 1

Defendant's probation officer filed violation reports dated 16 June 2011, 18 August 2011, and 3 February 2012, alleging that Defendant had violated the terms of his probation. The 18 August 2011 violation reports alleged that Defendant had cut off his electronic monitoring device and had “left his place of residence during curfew hours on 08/17/2011 and did not return.” For those violations, Defendant's probation for the larceny after breaking or entering in 10 CRS 57417 was revoked, and his sentence of eight to ten months in prison was activated on 13 October 2011. Defendant served this sentence. The 3 February 2012 violation reports alleged that Defendant had not completed any of his community service requirements, had been charged with resisting a public officer, and had been convicted of three counts of felony breaking or entering for incidents that occurred in July and August of 2011 (just before Defendant's sentence in 10 CRS 57417 was activated). Defendant admitted to those violations, and the trial court activated four of Defendant's sentences. Defendant appeals.

I.

The issues on appeal are: (1) whether the trial court lacked jurisdiction to revoke Defendant's probation for his conviction of larceny after breaking or entering in 09 CRS 53255 and (2) whether the trial court erred in revoking Defendant's probation for “larceny after breaking or entering” a second time in 10 CRS 57417, instead of revoking for “breaking or entering” in 10 CRS 57417.

II.

We must first decide whether this appeal is properly before this Court. There seems to be considerable confusion in the opinions of our appellate courts concerning what matters may be appealed following a probation revocation hearing when, as in this case, Defendant did not object to the conditions of his suspended sentence at the time judgment was initially entered.

Though the law concerning appeal from revocation of probation is often contradictory, we believe N.C. Gen Stat. § 15A–1347, and the greater weight of the precedent of our Supreme Court, allows appeal from revocation of probation to be based solely upon a challenge, either direct or collateral, to the trial court's jurisdiction.

“Appellate jurisdiction in criminal appeals by a defendant and grounds for appeal in criminal cases are set forth in N.C. Gen.Stat. § 15A–1442 and N.C. Gen.Stat. § 15A–1444. [A] defendant's right to appeal in a criminal proceeding is purely a creation of state statute.’ State v. Singleton, 201 N.C.App. 620, 623, 689 S.E.2d 562, 564 (2010) (citation omitted).

Our General Assembly “within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State.” “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.”

In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006) (citations omitted). Our General Assembly has granted defendants a right of appeal when suspended sentences are activated: “When a superior court judge, as a result of a finding of a violation of probation, activates a sentence ... the defendant may appeal under G.S. 7A–27.” N.C. Gen.Stat. § 15A–1347 (2011). N.C. Gen.Stat. § 7A–27 states in relevant part: “From any final judgment of a superior court ... appeal lies of right to the Court of Appeals.” N.C. Gen.Stat. § 7A–27(b) (2011).

The General Assembly first codified the authority to suspend a defendant's sentence in 1937. In re Greene, 297 N.C. 305, 310, 255 S.E.2d 142, 145 (1979). Our Supreme Court heard appeals from probation revocations both before and after the 1937 enactments. However, the General Assembly did not specifically grant any right of appeal from the activation of a suspended sentence until 1951. N.C. Gen.Stat. § 15–200.1 (1953) (repealed). In N.C.G.S. § 15–200.1, a right to appeal from “a court inferior to the superior court to the superior court was granted for a de novo hearing, “but only upon the issue of whether or not there has been a violation of the terms of the suspended sentence[.] Id. No right of appeal to the Supreme Court was therein granted, though our Supreme Court continued to hear appeals from revocations of probation. See, e.g., State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958). N.C.G.S. § 15–200.1 was amended in 1963, adding, inter alia, that a de novo appeal from a lower court to the superior court “shall be determined by a judge without a jury, but only upon the issue of whether or not there has been a violation of the terms of probation or of the suspended sentence.” N.C. Gen.Stat. § 15–200.1 (1965) (repealed).

In 1977, N.C.G.S. § 15–200.1 was repealed and replaced by N.C. Gen.Stat. § 15A–1347. N.C. Gen.Stat. § 15–200.1 (1978) (repealed); N.C. Gen.Stat. § 15A–1347 (1978); Greene, 297 N.C. at 310, 255 S.E.2d at 145.N.C.G.S. § 15A–1347 provided for a full de novo hearing on appeal from the district court to the superior court. In addition, for the first time, the General Assembly introduced a specific statutory right of appeal from the superior court to the appellate courts of North Carolina: “When a superior court judge, as a result of a finding of a violation of probation, activates a sentence or imposes special probation, either in the first instance or upon a de novo hearing after appeal from a district court, the defendant may appeal under G.S. 7A–27.” N.C.G.S. § 15A–1347 (1978). This remains the language in the current version of the statute. SeeN.C. Gen.Stat. § 15A–1347 (2011).

N.C. Gen.Stat. § 7A–27 was enacted by our General Assembly in 1967, the same year the Court of Appeals was created. See State v. Henry, 1 N.C.App. 409, 410, 161 S.E.2d 622, 622 (1968). N.C.G.S. § 7A–27(e) states: “From any other order or judgment of the superior court from which an appeal is authorized by statute, appeal lies of right directly to the Court of Appeals.” N.C. Gen.Stat. § 7A–27(e) (2011). N.C.G.S. § 7A–27(b) states in relevant part: “From any final judgment of a superior court ... appeal lies of right to the Court of Appeals.” N.C.G.S. § 7A–27(b).

Our Supreme Court heard appeals from the activation of suspended sentences well before a statute specifically allowing for appeal had been enacted. See, e.g., State v. Pelley, 221 N.C. 487, 20 S.E.2d 850 (1942); State v. Smith, 196 N.C. 438, 146 S.E. 73 (1929); State v. Tripp, 168 N.C. 150, 83 S.E. 630 (1914). In Tripp, the defendant argued three issues on appeal after his suspended sentence had been activated:

1. That defendant was entitled to a hearing de novo, as to the original issue of guilt or innocence.

2. That the judge should hear evidence on the questions presented to the recorder's court at time sentence was imposed as to the behavior of defendant, and pass upon same.

3. That the Legislature could not confer upon the recorder's court jurisdiction of the offense.

Id. at 152, 83 S.E. at 631. Our Supreme Court, in addressing the issue of whether the recorder's court (acting something like the district court today) had jurisdiction to impose, and then suspend, the original sentence, held that it did. Id. at 150, 83 S.E. at 633. It also held that the superior court correctly dismissed the defendant's attempted appeal on the bases that the superior court did not have jurisdiction to hear the matter de novo on the defendant's original guilt or innocence, or to hear the matter as to whether the recorder's court was correct in activating the suspended sentence. Id. at 156, 83 S.E. at 632–33. This was because no right of appeal had “been provided by the statute, and there [was] nothing in the record to challenge the validity or propriety of the sentence[.] Id. at 154, 83 S.E. at 632. For these reasons, the superior court order dismissing the defendant's appeal from the recorder's court was affirmed. Id. at 156, 83 S.E. at 633. It is important to note that our Supreme Court in Tripp heard and decided the defendant's collateral attack on the jurisdiction of the trial court to impose sentence in the first instance. This is one of the same jurisdictional issues involved in the present case.

As discussed above, N.C.G.S. § 15A–1347 places no specific limitations on a defendant's right to appeal from a final judgment activating a previously suspended sentence. State v. Cloer, 197 N.C.App. 716, 719, 678 S.E.2d 399, 401–02 (2009). However, other case law pre-dating the 1977 adoption of N.C.G.S. § 15A–1347 purports to place certain limitations on what may be appealed following a probation revocation hearing. Our Supreme Court appears to have first imposed limitations on appeal from the activation of...

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6 cases
  • State v. McCulloch
    • United States
    • North Carolina Court of Appeals
    • 18 Marzo 2014
    ...from revocation of probation, attack the jurisdiction of the trial court, either directly or collaterally.” State v. Pennell, ––– N.C.App. ––––, ––––, 746 S.E.2d 431, 441, stay granted, ––– N.C. ––––, 747 S.E.2d 247, disc. review granted, ––– N.C. ––––, 748 S.E.2d 534 (2013). Although the S......
  • State v. Flanagan
    • United States
    • North Carolina Court of Appeals
    • 7 Septiembre 2021
    ...before this Court. ¶ 14 The right to appeal in a criminal case is "purely a creation of state statute." State v. Pennell , 228 N.C. App. 708, 710, 746 S.E.2d 431, 433 (2013) (quoting State v. Singleton , 201 N.C. App. 620, 623, 689 S.E.2d 562, 564 (2010) ), rev'd in part , 367 N.C. 466, 758......
  • State v. Pennell, 371PA13.
    • United States
    • North Carolina Supreme Court
    • 12 Junio 2014
    ...TEXT STARTS HERE On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 746 S.E.2d 431 (2013), affirming in part, vacating and remanding in part, and arresting in part judgments entered on 5 June 2012 by Judge Christopher W. ......
  • State v. Smith
    • United States
    • North Carolina Court of Appeals
    • 5 Agosto 2014
    ...on the validity of the underlying judgment against her was properly before us, citing this Court's decision in State v. Pennell,––– N.C.App. ––––, 746 S.E.2d 431 (2013), and further concluded that the challenged indictment was fatally flawed. State v. Smith,––– N.C.App. ––––, 757 S.E.2d 523......
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