State v. Wilkins, No. COA12–869.

Docket NºNo. COA12–869.
Citation737 S.E.2d 791
Case DateFebruary 05, 2013
CourtCourt of Appeal of North Carolina (US)

737 S.E.2d 791

STATE of North Carolina
v.
Michael Christopher WILKINS.

No. COA12–869.

Court of Appeals of North Carolina.

Feb. 5, 2013.



[737 S.E.2d 792]

Appeal by defendant from judgment entered 23 March 2012 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 13 December 2012.

Attorney General Roy Cooper, by Special Deputy Attorney General David P. Brenskelle, for the State.

W. Michael Spivey, Rocky Mount, for defendant-appellant.


HUNTER, JR., ROBERT N., Judge.

Michael Christopher Wilkins (“Defendant”) appeals from judgments entered following his conviction for Possession of a Firearm by a Felon, among other offenses. Defendant argues: (1) that the indictment charging him with Possession of a Firearm by a Felon is facially defective and (2) that the trial court erred in sentencing him as an habitual felon. For the following reasons, we vacate Defendant's Possession of a Firearm by a Felon conviction, as well as his conviction for having attained habitual felon status.

[737 S.E.2d 793]

I. Procedural History

Defendant was indicted on 19 January 2010 for one count each of (1) Robbery with a Dangerous Weapon, (2) Second Degree Kidnapping, (3) Possession of Stolen Goods, (4) Assault with a Deadly Weapon, and (5) Possession of a Firearm by a Felon. The Robbery, Kidnapping, and Possession of Stolen Goods charges were listed on one bill of indictment, while the Possession of a Firearm by a Felon and Assault with a Deadly Weapon charges were listed together on a separate indictment. Defendant was also charged with having attained habitual felon status.

Following a trial, Defendant was convicted of the Robbery, Kidnapping, and Possession of a Firearm charges. During the sentencing phase, the trial court conducted the following exchange with Defendant:

THE COURT: Mr. Wilkins, it has been brought to my attention by your attorney that when we previously discussed your status as being a habitual felon, you elected to stand mute; is that correct?

THE DEFENDANT: That is correct.

THE COURT: And it has been brought to my attention that at this point you wish to admit those previous convictions that have been—that the State alleges make you to be a habitual felon; is that correct?

THE DEFENDANT: Guilty of these charges?

THE COURT: The convictions, the previous convictions.

THE DEFENDANT: The old charges?

THE COURT: The old charges.

THE DEFENDANT: Yes.

THE COURT: So just to be clear, you are admitting that you were convicted of attempted common law robbery on February 26 of 1996, and that offense was committed on November 1, 1995; is that correct?

THE DEFENDANT: Do plea arrangements also count as being convicted of?

THE COURT: Yes.

THE DEFENDANT: That is correct.

THE COURT: And that you were convicted on November 12 of 2002, in Superior Court of Halifax County of assault on a handicapped person, the felony of assault on a handicapped person, that assault taking place on December 23, 2001; is that correct?

THE DEFENDANT: Correct.

THE COURT: And the attempted common law robbery conviction also occurred in Superior Court in Halifax County; is that correct?

THE DEFENDANT: That is correct.

THE COURT: And that you were convicted of common law robbery on November 2, 2005 in Nash County Superior Court, that offense taking place on May 21 of 2005?

THE DEFENDANT: Correct.

THE COURT: Any further inquiry requested by the State?

[THE STATE]: No, ma'am.

THE COURT: Thank you. You may have a seat.

The trial court then sentenced Defendant as an habitual felon to consecutive sentences of 110–141 months imprisonment. Defendant gave oral notice of appeal in open court.


II. Jurisdiction & Standard of Review

As Defendant appeals from the final judgment of a superior court, an appeal lies of right to this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).

We review the sufficiency of an indictment de novo. State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712 (2008). Alleged statutory errors are questions of law, State v. Hanton, 175 N.C.App. 250, 255, 623 S.E.2d 600, 604 (2006), and as such, are reviewed de novo. Staton v. Brame, 136 N.C.App. 170, 174, 523 S.E.2d 424, 427 (1999). Under de novo review, this Court “considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted).

III. Analysis
A. Indictment for Possession of a Firearm by a Felon

Defendant contends that the trial court lacked jurisdiction to try, convict, and

[737 S.E.2d 794]

sentence him for Possession of a Firearm by a Felon because the State failed to obtain a separate indictment for that offense. Defendant argues that the indictment for Possession of a Firearm by a Felon was fatally defective under N.C. Gen.Stat. § 14–415.1(c) because the charge was included as a separate count in a single indictment also charging Defendant with Assault with a Deadly Weapon. Defendant specifically argues that the trial court lacked...

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4 practice notes
  • State v. Newborn, COA20-411
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 17, 2021
    ...fatally defective and invalid, thereby depriving a trial court of jurisdiction over it. See State v. Wilkins, 225 N.C. App. 492, 497, 737 S.E.2d 791, 794 (2013). When a trial court makes a conclusion of law while denying a motion to suppress, it must do so with the support of adequate findi......
  • State v. Newborn, COA20-411
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 17, 2021
    ...fatally defective and invalid, thereby depriving a trial court of jurisdiction over it. See State v. Wilkins, 225 N.C.App. 492, 497, 737 S.E.2d 791, 794 (2013). When a trial court makes a conclusion of law while denying a motion to suppress, it must do so with the support of adequate findin......
  • State v. Williamson, No. COA19-692
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 16, 2020
    ...Court has held that "a defendant's mere stipulation to predicate felonies is insufficient." State v. Wilkins , 225 N.C. App. 492, 497, 737 S.E.2d 791, 795 (2013). Also, in accordance with N.C. Gen. Stat. § 15A-1022, "a superior court judge may not accept a plea of guilty or no contest from ......
  • Carpenter v. Carpenter, No. COA12–820.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • February 5, 2013
    ...legal and physical custody of George to the parties, but the order never mentions legal custody, although it does mention “control” [737 S.E.2d 791]as part of its decree, which may imply “legal custody.” 6See Peters, 210 N.C.App. at 17, 707 S.E.2d at 736 (“Legal custody refers generally to ......
4 cases
  • State v. Newborn, COA20-411
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 17, 2021
    ...fatally defective and invalid, thereby depriving a trial court of jurisdiction over it. See State v. Wilkins, 225 N.C. App. 492, 497, 737 S.E.2d 791, 794 (2013). When a trial court makes a conclusion of law while denying a motion to suppress, it must do so with the support of adequate findi......
  • State v. Newborn, COA20-411
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 17, 2021
    ...fatally defective and invalid, thereby depriving a trial court of jurisdiction over it. See State v. Wilkins, 225 N.C.App. 492, 497, 737 S.E.2d 791, 794 (2013). When a trial court makes a conclusion of law while denying a motion to suppress, it must do so with the support of adequate findin......
  • State v. Williamson, No. COA19-692
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 16, 2020
    ...Court has held that "a defendant's mere stipulation to predicate felonies is insufficient." State v. Wilkins , 225 N.C. App. 492, 497, 737 S.E.2d 791, 795 (2013). Also, in accordance with N.C. Gen. Stat. § 15A-1022, "a superior court judge may not accept a plea of guilty or no contest from ......
  • Carpenter v. Carpenter, No. COA12–820.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • February 5, 2013
    ...legal and physical custody of George to the parties, but the order never mentions legal custody, although it does mention “control” [737 S.E.2d 791]as part of its decree, which may imply “legal custody.” 6See Peters, 210 N.C.App. at 17, 707 S.E.2d at 736 (“Legal custody refers generally to ......

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