State v. Leaks ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1141
Filed: 21 April 2015
Forsyth County, Nos. 13 CRS 121, 50995, 54822
STATE OF NORTH CAROLINA
v.
CLAY DEWAYNE LEAKS, JR.
Appeal by defendant from judgments entered 10 June 2014 by Judge John O.
Craig in Forsyth County Superior Court. Heard in the Court of Appeals 4 March
2015.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N.
Callahan, for the State.
Richard Croutharmel for defendant.
ELMORE, Judge.
On 11 February 2013, Clay Leaks, Jr. (defendant) was indicted by a Forsyth
County Grand Jury pursuant to N.C. Gen. Stat. § 14-208.11(a)(2) for failing to report
a change of address as a registered sex offender from 21 November 2012 through 30
January 2013 (case number 13 CRS 50995). Defendant was subsequently indicted
for an additional charge of failing to report a change of address as a registered sex
offender from 22 April through 20 May 2013 (case number 13 CRS 54822), and
attaining the status of habitual felon (case number 13 CRS 121). The matter in case
STATE V. LEAKS
Opinion of the Court
number 13 CRS 50995 was called for trial on 9 June 2014 in the Criminal Session of
Forsyth County Superior Court. The jury found defendant guilty of the charge.
The additional charge of failing to report a change of address as a registered
sex offender from 22 April through 20 May 2013 (case number 13 CRS 54822) was
not before the jury at defendant’s trial. However, defendant entered a plea bargain
on this charge prior to sentencing in case number 13 CRS 50995. In exchange for his
plea to the additional charge and stipulation to his status as a habitual felon, the
State agreed to consolidate defendant’s convictions. The trial court determined that
defendant was a prior record Level V offender for felony sentencing purposes. The
trial court entered a consolidated judgment, imposing a minimum term of 114 months
to a maximum 149 months imprisonment. Defendant entered notice of appeal in open
court.
I. Background
At defendant’s trial for failing to comply with the sex offender registration
program, the State presented evidence that tended to show the following: On 4 June
2001, defendant was convicted of a sex offense that required him to register as a sex
offender pursuant to the sex offender registration requirements. Defendant is
required to verify his address every six months and report any change of address
within three business days. On 17 March 2012, defendant executed a one-year lease
agreement for a residence located at 669 Old Hollow Road in Winston-Salem.
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Opinion of the Court
Defendant timely notified the Forsyth County Sheriff’s Office of his change of
address.
The rental residence was a single-family home with a detached shed and a
detached garage in the rear of the house. After occupying the residence for one to two
months, defendant ceased making the monthly rental payment to his landlord,
Homer Shockley (Shockley). In November 2012, Shockley and a Forsyth County
Sheriff’s Deputy went to the residence to serve defendant with eviction papers. The
residence was empty and the electricity and water had been turned off. Padlocks
were placed on the garage and storage building. Shockley testified that he drove by
the residence approximately three times per week throughout November and
December 2012, but he neither saw defendant on the property nor did he notice any
activity at the residence.
During the week of 27 November 2012, the Forsyth County Sheriff’s Office sent
defendant an address verification letter to 669 Old Hollow Road. The letter was
returned to the Sheriff’s Office as “undeliverable.” Ronald Lewis, a Forsyth County
Sheriff’s Deputy who worked in the sex offender unit, went to 669 Old Hollow Road
in search of defendant. Deputy Lewis noticed that the house was vacant. Deputy
Lewis did not look for defendant in the garage or shed.
On 31 January 2013, defendant went to the Forsyth County Sheriff’s Office to
report that his address had changed from 669 Old Hollow Road. Deputy Chris
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Opinion of the Court
Davenport arrested defendant and charged him with failing to report a change of
address as a registered sex offender.
Defendant testified on his own behalf at trial. Defendant explained that on 13
November 2012, he removed his personal belongings from the residence and stored
them in a warehouse because he knew that he would be evicted from the residence.
Defendant claimed that he subsequently moved into the storage shed on the property
and resided there until 31 January 2013. The shed had minimal furnishings and
electricity, but no water. Defendant testified that he would enter and exit the shed
by using a ladder to climb through an air conditioning vent. Defendant alleged that
he would rise early to work as a self-employed handyman. If he had no work, he
would shower and eat at his wife’s house while she was gone. Defendant testified
that he would wait until nightfall before returning to the shed, hoping to go
unnoticed. Given this, defendant argued that he had not, in fact, failed to report a
change in his address because he had continued to reside on the property until 31
January 2013.
Despite defendant’s testimony, the jury found defendant guilty of the charge.
Defendant appeals.
II. Analysis
A. Sufficiency of Indictment
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Opinion of the Court
Defendant contends that the indictment charging him with violating N.C. Gen.
Stat. § 14-208.11(a)(2) was insufficient to confer subject matter jurisdiction upon the
trial court, as it failed to allege all of the essential elements of the offense.
Specifically, defendant argues that the indictment failed to allege that he was
required to provide “written notice” of a change of address, a prerequisite for the
offense as described in N.C. Gen. Stat. § 14-208.9. As such, defendant insists that
this error rendered his indictment fatally defective and requires that we vacate his
conviction. We disagree.
On appeal, we review the sufficiency of an indictment de novo. State v. McKoy,
196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). In order to be valid and thus
confer jurisdiction upon the trial court, “[a]n indictment charging a statutory offense
must allege all of the essential elements of the offense.” State v. Snyder, 343 N.C. 61,
65, 468 S.E.2d 221, 224 (1996). The indictment “is sufficient if it charges the offense
in a plain, intelligible and explicit manner.” State v. Taylor, 280 N.C. 273, 276, 185
S.E.2d 677, 680 (1972). “[I]ndictments need only allege the ultimate facts
constituting each element of the criminal offense,” State v. Rambert, 341 N.C. 173,
176, 459 S.E.2d 510, 512 (1995), and “[a]n indictment couched in the language of the
statute is generally sufficient to charge the statutory offense[.]” State v. Singleton,
85 N.C. App. 123, 126, 354 S.E.2d 259, 262 (1987). “ [W]hile an indictment should
give a defendant sufficient notice of the charges against him, it should not be
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Opinion of the Court
subjected to hyper technical scrutiny with respect to form.” State v. Harris, 219 N.C.
App. 590, 592, 724 S.E.2d 633, 636 (2012) (quotation and citation omitted).
N.C. Gen. Stat. § 14-208.11(a)(2) provides that a person who willfully “[f]ails
to notify the last registering sheriff of a change of address” is guilty of a class F felony.
In addition, N.C. Gen. Stat. § 14-208.9(a) provides: “If a person required to register
changes address, the person shall report in person and provide written notice of the
new address not later than the third business day after the change to the sheriff of
the county with whom the person had last registered.”
While the language of defendant’s indictment largely tracks the operative
language of N.C. Gen. Stat. § 14-208.9(a), it does not provide that defendant failed to
notify the sheriff’s office in writing. Defendant’s indictment provides that defendant:
unlawfully, willfully and feloniously did as a person
required by Article 27A of Chapter 14 of the North Carolina
General Statutes to register as a sex offender, knowingly
and with the intent to violate the provision of that article
fail to register as a sex offender by failing to notify the
Forsyth County Sheriff’s Office of his change of address
with in [sic] three business days after moving from his last
registered address.
Defendant argues that the indictment is fatally flawed because it omits the
requirement that he provides “written notice” of a change of address. In advancing
his argument, defendant solely relies on a recent unpublished opinion from this
Court, State v. Osborne, ___ N.C. App. ___, ___, 763 S.E.2d 16, ___, 2014 N.C. App.
LEXIS 700, 2014 WL 2993855 (July 1, 2014) (unpublished). We note that
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Opinion of the Court
unpublished decisions are not controlling precedent. State v. Beltran-Ponce, 203 N.C.
App. 373, 692 S.E.2d 487 (2010). Nonetheless, in Osborne, this Court acknowledged
that the three essential elements of the offense described in N.C. Gen. Stat. § 14-
208.9(a) had previously been determined: (1) the defendant is a person required to
register; (2) the defendant changes his or her address; and (3) the defendant fails to
notify the last registering sheriff of the change of address within three business days
of the change. Osborne, ___ N.C. App. at ___, 763 S.E.2d at ___, 2014 N.C. App.
LEXIS 700, at *2, 2014 WL 2993855, at *6 (quoting State v. Barnett, ___ N.C. App.
___, ___, 733 S.E.2d 95, 98 (2012)). However, in reviewing the defendant’s indictment
sua sponte, the Osborne Court held that the indictment was fatally defective because
it failed to allege that (1) defendant did not provide “written notice” of his move, and
(2) did not specify the time requirements as within “three business days” of the
defendant’s move to a new address. In effect, the Osborne Court imposed two
additional essential elements of the offense set forth in N.C. Gen. Stat. § 14-208.9(a)—
the “written notice” requirement and the “three business days” requirement.
Osborne, ___ N.C. App. at ___, 763 S.E.2d at ___, 2014 N.C. App. LEXIS 700, at *7–
9, 2014 WL 2993855, at *3. Given the holding in Osborne, defendant contends that
his indictment was fatally defective because it too did not include the “written notice”
requirement. We are not persuaded.
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Opinion of the Court
In State v. Abshire, our Supreme Court analyzed the 2005 version of N.C. Gen.
Stat. § 14-208.11(a)(2) and N.C. Gen. Stat. § 14-208.9(a) and expressly limited N.C.
Gen. Stat. § 14-208.9(a) to the three essential elements set forth above. State v.
Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009). Although N.C. Gen. Stat. §
14-208.9(a) has been amended since Abshire was published, the requirement that a
sex offender report his or her change of address in writing has remained part of the
statute since its enactment in 1995. See Act of July 29, 1995, ch. 545, sec. 1, 1995
N.C. Sess. Laws 2046, 2048. Notably, our Supreme Court declined to include the
manner of the notice—“in writing”—in the essential elements of the offense. See
Abshire, 363 N.C. at 328, 677 S.E.2d at 449. Because “[t]his Court is bound to follow
the precedent of our Supreme Court,” State v. Scott, 180 N.C. App. 462, 465, 637
S.E.2d 292, 294 (2006), we are unable to agree with defendant that his indictment is
fatally defective merely because it fails to provide that notice must be made “in
writing.” Instead, we consider the manner of notice, in person or in writing, to be an
evidentiary matter necessary to be proven at trial, but not required to be alleged in
the indictment. See N.C. Gen. Stat. § 15A-924(a)(5) (evidentiary matters as to the
means and manner in which a crime was committed need not be alleged in an
indictment). Facts tending to show that defendant did not furnish the sheriff’s office
with “written notice” merely illustrate that defendant failed to comply with the
requirements of N.C. Gen. Stat. § 14-208.9(a).
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Opinion of the Court
In sum, defendant’s indictment in the instant case sufficiently alleged that
defendant (1) was a person required to register as a sex offender; (2) changed his
address; and (3) failed to notify the appropriate agency within three business days
after moving. As such, the indictment was valid as a matter of law and sufficient to
confer subject matter jurisdiction upon the trial court. We overrule defendant’s
argument.
B. Sentencing Error
In his second argument on appeal, defendant contends that the trial court
violated defendant’s right to be present during sentencing by entering a written
judgment imposing a longer prison term than that which the trial court announced
in his presence during the sentencing hearing. We agree.
It is well-settled that a defendant has a right to be present at the time that his
sentence is imposed. State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99
(1999).
The facts of the instant case show that the trial court, in the presence of
defendant, sentenced defendant as a Level V offender to a minimum term of 114
months and a maximum term of 146 months imprisonment. Subsequently, the trial
court entered written judgment reflecting a sentence of 114 to 149 months active
prison time. The sentence actually imposed on defendant was the sentence contained
in the written judgment. Given that there is no indication in the record that
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Opinion of the Court
defendant was present at the time the written judgment was entered, the sentence
must be vacated and this matter remanded for the entry of a new sentencing
judgment. See id.
In so holding, this Court looks to Crumbley, wherein we held that the trial
court erred in converting the defendant’s sentence in the written judgment to run
consecutively when the defendant was not present given that it orally rendered
judgment in the defendant’s presence to concurrent terms of imprisonment. See State
v. Hanner, 188 N.C. App. 137, 141, 654 S.E.2d 820, 823 (2008) (vacating the
defendant’s sentencing judgments when the trial court sentenced the defendant
outside of his presence to consecutive terms of imprisonment after it orally imposed
concurrent sentences before the defendant in open court.).
Under the North Carolina structured sentencing chart, if the trial court
intended to sentence defendant to 114 months minimum incarceration, it was
required to impose the 149 month maximum term. However, if the trial court
intended to impose a maximum term of 146 months, it was required to impose the
corresponding minimum term of 111 months imprisonment. Regardless, there is no
evidence that defendant was present when the trial court entered its written
judgments. Because the written judgments reflect a different sentence than that
which was imposed in defendant’s presence during sentencing, we must vacate
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Opinion of the Court
defendant’s sentence and remand for the entry of a new sentencing judgment. See
Crumbly and Hanner, supra.
III. Conclusion
Defendant’s indictment was sufficient to confer subject matter jurisdiction on
the trial court such that the trial court did not err in hearing defendant’s case.
However, the trial court erred in entering a written judgment that altered the
sentence it initially imposed on defendant because defendant was not before the trial
court and able to be heard when the new sentence was entered. Accordingly, we hold
that defendant received a trial free from error. However, we must vacate defendant’s
sentence and remand for the entry of a new sentencing judgment.
No error, in part; reversed and remanded, in part; new sentencing hearing.
Judges GEER and INMAN concur.
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