State v. Chavez ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-341
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Guilford County
No. 03 CRS 70577
JORGE HUERTA-NESTOR CHAVEZ,
Defendant.
Appeal by defendant from judgment entered 23 September 2013
by Judge William Z. Wood, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 28 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Daniel P. O'Brien, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
GEER, Judge.
Defendant Jorge Huerta-Nestor Chavez appeals from a
judgment sentencing him on one count of second degree murder.
In 2003, defendant was indicted for two counts of first degree
murder. Later that year, pursuant to a plea agreement,
defendant pled guilty to two counts of second degree murder. He
was sentenced on one count, but prayer for judgment was
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continued on the second count to allow defendant to provide
assistance in locating and prosecuting a codefendant.
Defendant was not sentenced for the second count of murder
until September 2013, 10 years later. On appeal, defendant
argues solely that the sentencing court lacked jurisdiction to
sentence him in 2013 because the State failed to move for
imposition of a sentence within a reasonable time after
defendant pled guilty in 2003. Because defendant's challenge to
the trial court's jurisdiction falls outside the scope of his
statutory right to appeal from a guilty plea, we must dismiss
this appeal.
Facts
On the evening of 12 December 2002, Carmelo Rojas-Hernandez
drove with members of his family to Lera's Dance Club in Ruffin,
North Carolina. Defendant and Arturo Martinez were also at
Lera's that evening. While Mr. Rojas-Hernandez' stepdaughter
and her female friend -- both of whom were 13 or 14 years old --
were dancing, Mr. Martinez approached and began making
inappropriate advances toward them. Mr. Rojas-Hernandez
informed Mr. Martinez of the girls' ages and told Mr. Martinez
to stop harassing them.
Later, Lera's security personnel escorted Mr. Martinez out
of the building, and defendant left with him. The two men then
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waited outside Lera's in the parking lot. Mr. Rojas-Hernandez
and his family left Lera's shortly after the incident in their
Trailblazer. Defendant and Mr. Martinez followed the
Trailblazer in defendant's car with defendant driving. Once the
cars were on U.S. Highway 29, defendant pulled his car alongside
the Trailblazer. Two shots were fired from defendant's car
striking Mr. Rojas-Hernandez and his wife, Elaine Parrish-Rojas,
in the head and ultimately killing both of them.
Defendant admitted to driving the car during the shooting,
but claimed that Mr. Martinez was the shooter. According to
defendant, Mr. Martinez ordered him to drive the car alongside
the Trailblazer and threatened to kill defendant if he did not
do so. Defendant and Mr. Martinez fled to Mexico after the
shooting. However, defendant soon returned to the United States
without Mr. Martinez in order to find work. Shortly thereafter,
defendant was arrested and extradited to North Carolina.
On or about 21 April 2003, defendant was indicted for two
counts of first degree murder for the killings of Mr. Rojas-
Hernandez and Ms. Parrish-Rojas. Pursuant to a plea agreement,
defendant pled guilty on 3 October 2003 to two counts of second
degree murder. At the plea hearing in Guilford County Superior
court on 3 November 2003, Judge Michael E. Helms entered
judgment against defendant for the murder of Ms. Parrish-Rojas
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and sentenced him to a presumptive-range term of 157 to 198
months imprisonment. The plea agreement provided that "prayer
for judgment will be continued [for the murder of Mr. Rojas-
Hernandez] until 8 December 2003 and from term to term
thereafter as necessary in order for defendant to comply with
the terms of this agreement." The plea agreement resulting in
the prayer for judgment continued ("PJC") included several
conditions:
4. That [defendant] will voluntarily
appear and testify at the trial(s) of
Arturo Hernandez Martinez arising from
the offenses committed on 15 December
2002.
5. That [defendant] will voluntarily
appear and testify at any other trials
resulting from investigations in which
he participates pursuant to his
agreement herein.
6. That said testimony shall be truthful,
complete, and not inconsistent with the
statement(s) given to the Guilford
County District Attorney's Office and
the Greensboro Police Department
pursuant to the terms of this
agreement.
At the end of the plea hearing, Judge Helms remarked: "No
one can guarantee what the judgment of the Defendant will be in
the second case, but I would suggest that . . . the more
assistance [he] can offer, the better will be his position as to
the second case when it comes to sentencing. It may not help
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him a bit, but it certainly wouldn't hurt him to have lent the
assistance he possibly can in apprehending the codefendant."
Defendant was then placed in the custody of the North Carolina
Department of Corrections.
After the plea hearing, defendant appears to have been
under the impression that the charge for the murder of Mr.
Rojas-Hernandez was still pending. On 23 May 2004 and again on
12 July 2007, defendant sent a pro se "Speedy Trial Letter" to
the Clerk of Court for Guilford County Superior Court
"requesting a speedy trial under . . . General Statute 15A-711
concerning docket number[] 03 CRS 070577: [for the murder of Mr.
Rojas-Hernandez]." On 16 November 2011, defendant filed a pro
se "Motion To Proceed Under Article 36" with regard to the
murder of Mr. Rojas-Hernandez in which he "categorically
state[d] his factual and legal innocense [sic]," stated that he
"will exercise his right to a trial by jury," and "exert[ed] his
right pursuant to Section (c) of 15A-711 to proceed."
At some point, defendant's trial counsel, Wayne Baucino,
and the Assistant District Attorney for Guilford County
responsible for prosecuting defendant's case, Maury Hubbard,
appeared before Judge Henry E. Frye, Jr. apparently for a
hearing relating to defendant's PJC, although defendant was not
present. At that hearing, Mr. Martinez had yet to be located,
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and "it was agreed that . . . we'd just wait longer, to see if
we were able to procure [Mr. Martinez]." In either 2010 or
2011, Mr. Baucino and Mr. Hubbard sat down with defendant to
"tr[y] to find out if there was any additional information that
he had received while in prison [about Mr. Martinez], through
contacts with family and so forth. He was basically able to
provide the Mexican state where he believed [Mr. Martinez] to be
. . . [along with] the name of a village, and some other things
of that nature." However, Mr. Martinez was never located.
On 20 September 2012, defendant filed a pro se motion with
the Guilford County Superior Court requesting the preparation of
a transcript from his 2003 plea hearing. On 6 March 2013, Judge
Patrice H. Hinnant granted the motion for a transcript.
On 23 September 2013, Judge William Z. Wood, Jr. held a
sentencing hearing with respect to defendant's guilty plea to
the second degree murder of Mr. Rojas-Hernandez. The prosecutor
explained that "[defendant] did, insofar as he was able, do what
he was supposed to do, in terms of providing information [about
Mr. Martinez]." However, because Mr. Martinez was never
located, defendant was unable to fully comply with the terms of
his plea agreement.
Mr. Baucino argued that because defendant "[did] everything
he could possibly do to comply with the terms of the agreement,"
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he should be given a sentence that ran concurrently with his
sentence for the murder of Ms. Parrish-Rojas that he was already
serving. Mr. Baucino suggested that this outcome would "honor
the spirit of the [plea] agreement." Mr. Baucino also argued
the existence of several mitigating factors.
Following defense counsel's arguments, Judge Wood found the
existence of several mitigating factors, including that
defendant cooperated at an early stage of the investigation; he
accepted responsibility; he was prepared to testify against Mr.
Martinez; and he played a minor role in the commission of the
offense. Judge Wood then sentenced defendant for the second
degree murder of Mr. Rojas-Hernandez to a mitigated-range term
of 94 to 122 months. Judge Wood ordered that the sentence run
consecutively to the sentence defendant was already serving for
the murder of Ms. Parrish-Rojas. Defendant timely appealed to
this Court.
Discussion
Defendant argues that the trial court had no jurisdiction
to impose a sentence for the murder of Mr. Rojas-Hernandez 10
years after accepting defendant's guilty plea. While defendant
consented to the PJC in his plea agreement, defendant argues he
withdrew his consent to the PJC with his 2004 Speedy Trial
Letter and that the nine-year delay between the withdrawal of
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his consent and his sentencing in 2013 was unreasonable. Citing
State v. Degree, 110 N.C. App. 638, 430 S.E.2d 491 (1993),
defendant asserts that because of the unreasonable delay, the
trial court no longer had jurisdiction to sentence defendant for
the murder of Mr. Rojas-Hernandez.
In determining whether a delay in sentencing "deprive[s]
[the] trial court of jurisdiction," Degree held that "[t]he
continuance may be for a definite or indefinite period of time,
but in any event the sentence must be entered 'within a
reasonable time' after the conviction or plea of guilty." Id.
at 641, 430 S.E.2d at 493 (quoting 21 Am. Jur. 2d Criminal Law §
526, at 870 (1981)). "Deciding whether sentence has been
entered within a 'reasonable time' requires consideration of the
reason for the delay, the length of the delay, whether defendant
has consented to the delay, and any actual prejudice to
defendant which results from the delay." Id. (quoting 21 Am.
Jur. 2d Criminal Law § 561, at 924 (1981)).
The State has, however, moved to dismiss defendant's appeal
on the grounds that it does not fall within the limited bases
for appeal of a guilty plea authorized by N.C. Gen. Stat. § 15A-
1444 (2013). "In North Carolina, a defendant's right to appeal
in a criminal proceeding is purely a creation of state statute.
Furthermore, there is no federal constitutional right obligating
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courts to hear appeals in criminal proceedings." State v.
Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002)
(internal citations omitted).
Under N.C. Gen. Stat. § 15A-1444, a defendant who has pled
guilty has a right to appeal only the following issues: (1)
whether the sentence is supported by the evidence (if the
minimum term of imprisonment does not fall within the
presumptive range); (2) whether the sentence results from an
incorrect finding of the defendant's prior record level under
N.C. Gen. Stat. § 15A-1340.14 (2013) or the defendant's prior
conviction level under N.C. Gen. Stat. § 15A-1340.21 (2013); (3)
whether the sentence contains a type of sentence disposition or
term of imprisonment not authorized by N.C. Gen. Stat. § 15A-
1340.17 (2013) or § 15A-1340.23 (2013) for the defendant's class
of offense and prior record or conviction level; (4) whether the
trial court improperly denied the defendant's motion to
suppress; and (5) whether the trial court improperly denied the
defendant's motion to withdraw his guilty plea. State v.
Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47
(2003).
Defendant's jurisdictional challenge does not fall within
any of the provisions of N.C. Gen. Stat. § 15A-1444. Our
Supreme Court has held: "While it is true that a defendant may
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challenge the jurisdiction of a trial court, such challenge may
be made in the appellate division only if and when the case is
properly pending before the appellate division." State v.
Absher, 329 N.C. 264, 265 n.1, 404 S.E.2d 848, 849 n.1 (1991)
("Absher I"). See also Jamerson, 161 N.C. App. at 529, 588
S.E.2d at 547 (accord). Because defendant does not have a
statutory right to challenge the trial court's jurisdiction on
appeal, we are without authority to hear defendant's appeal.
Nonetheless, defendant contends that his appeal falls under
N.C. Gen. Stat. § 15A-1444(a1), which provides:
A defendant who has been found guilty, or
entered a plea of guilty or no contest to a
felony, is entitled to appeal as a matter of
right the issue of whether his or her
sentence is supported by evidence introduced
at the trial and sentencing hearing only if
the minimum sentence of imprisonment does
not fall within the presumptive range for
the defendant's prior record or conviction
level and class of offense. Otherwise, the
defendant is not entitled to appeal this
issue as a matter of right but may petition
the appellate division for review of this
issue by writ of certiorari.
Defendant argues that he "is indeed challenging . . . whether
his mitigated sentence was supported by the evidence" in that
"the sentence was not supported by evidence the sentencing court
had jurisdiction to enter any sentence[.]"
Defendant's argument is foreclosed by Absher I. In Absher
I, the defendant pled guilty to operating a motor vehicle while
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impaired. 329 N.C. at 265, 404 S.E.2d at 849. As explained in
a subsequent appeal in the same case, State v. Absher, 335 N.C.
155, 156, 436 S.E.2d 365, 366 (1993) ("Absher II"), "[t]he
prayer for judgment was in effect continued from term to term
when a sentence was not imposed[,]" and a sentence was not
imposed until five months after defendant's plea was entered.
In Absher I, defendant argued that the trial court lacked
jurisdiction to impose a sentence five months after the PJC.
See Absher II, 335 N.C. at 156, 436 S.E.2d at 366. The State
moved to dismiss the defendant's appeal on the same grounds
asserted in this case: that the defendant's appeal did not fall
within the statutory grounds for appeal from a guilty plea.
Absher I, 329 N.C. at 265, 404 S.E.2d at 849. Although this
Court denied the State's motion to dismiss and vacated the
defendant's sentence, the Supreme Court reversed, explaining
that "[t]he Court of Appeals erred in failing to dismiss
defendant's appeal" because "defendant [was] not entitled to
appeal as a matter of right from the judgment entered on his
plea of guilty." Id.
This appeal is indistinguishable from Absher I. Based on
Absher I, we must hold that defendant's argument does not fall
within any of the statutory grounds for appeal from a guilty
plea. Absher I establishes further that it is immaterial that
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defendant is challenging the jurisdiction of the trial court.
We are bound by our Supreme Court's decision in Absher I and,
therefore, dismiss defendant's appeal.
Defendant, however, argues that Degree supports the
conclusion that this Court has jurisdiction over his argument.
Degree could not, however, have overruled Absher I's holding
that this Court lacked jurisdiction over an appeal contending
that the trial court lacked jurisdiction to sentence a defendant
following a PJC after an unlawful delay. See Andrews v.
Haygood, 188 N.C. App. 244, 248, 655 S.E.2d 440, 443 (2008)
("'[T]his Court has no authority to overrule decisions of our
Supreme Court and we have the responsibility to follow those
decisions[.]'" (quoting Dunn v. Pate, 106 N.C. App. 56, 60, 415
S.E.2d 102, 104 (1992), rev'd on other grounds, 334 N.C. 115,
431 S.E.2d 178 (1993))). We note that the full basis for the
decision in Absher I was not apparent until Absher II, an
opinion that came down after this Court's decision in Degree.
Regardless, Degree did not expressly address whether this
Court had jurisdiction and was not required to do so since
defendant made two arguments on appeal: (1) that defendant's
sentence was unreasonably delayed following the PJC, and (2)
that the trial court improperly based the defendant's sentence
on a nonstatutory aggravating factor. 110 N.C. App. at 640,
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642, 430 S.E.2d at 492-93, 494. The defendant in Degree was
entitled under N.C. Gen. Stat. § 15A-1444(a1) (1991) to appeal
whether the trial court properly sentenced him in the aggravated
range. This Court therefore had jurisdiction over the appeal.
See State v. Jones, 161 N.C. App. 60, 64, 588 S.E.2d 5, 9 (2003)
("Although our power to consider jurisdiction is limited to
those cases properly pending before the Court, we may consider
the issue here because defendant has a right to appeal his
motion to suppress [under N.C. Gen. Stat. § 15A-1444]."), rev'd
in part on other grounds, 358 N.C. 473, 598 S.E.2d 125 (2004).
In defendant's response to the State's motion to dismiss,
defendant further argues that his sentence for the murder of Mr.
Rojas-Hernandez was the result of ineffective assistance of
counsel ("IAC"). Because we do not have jurisdiction over
defendant's appeal, defendant's IAC claim should be raised in
the trial court in a motion for appropriate relief under N.C.
Gen. Stat. § 15A-1415 (2013).
Dismissed.
Judge STEELMAN concurs.
Judge ROBERT N. HUNTER, JR. concurred in this opinion prior
to 6 September 2014.
Report per Rule 30(e).