State v. Culbertson , 255 N.C. App. 635 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-136
Filed: 19 September 2017
Cabarrus County, No. 15 CRS 50338-40; 15 CRS 50451
STATE OF NORTH CAROLINA
v.
SERGIO MONTEZ CULBERTSON
Appeal by defendant from judgment entered 6 September 2016 by Judge Julia
Lynn Gullett in Cabarrus County Superior Court. Heard in the Court of Appeals 23
August 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Susannah P.
Holloway, for the State.
Joseph P. Lattimore for defendant-appellant.
TYSON, Judge.
Sergio Montez Culbertson (“Defendant”) appeals from judgment entered
following his guilty plea to assault inflicting serious physical injury on a law
enforcement officer, assault inflicting injury on a law enforcement officer, five drug
related charges, resisting arrest, driving while license revoked and a parking
violation. The State has filed a motion to dismiss Defendant’s appeal. Defendant
also filed a petition for writ of certiorari seeking our review contemporaneously with
his brief.
STATE V. CULBERTSON
Opinion of the Court
The State’s motion to dismiss the appeal is allowed. In our discretion, we
invoke N.C. R. App. P. 2 to suspend Rule 21 of the appellate rules, allow Defendant’s
petition and issue our writ of certiorari. Defendant’s petition seeks review of
judgments entered upon indictments, which the State concedes are facially invalid
and do not provide the trial court with jurisdiction on two charges.
I. Factual Background
At the entry of Defendant’s guilty plea, the State forecast the following
evidence. On 21 January 2015, Concord Police Officer M. Hanson was on patrol when
he saw a truck parked in the street and facing the wrong direction of travel. The
truck was parked approximately 900 feet from the boundary of Caldwell Park. Officer
Hanson observed Defendant walking away from the truck. Officer Hanson called
other officers to inform them he had stopped Defendant and exited his vehicle to
speak with Defendant. Concord Police Officer A. J. Vandevoorde arrived at the scene,
and the officers conversed with Defendant near Defendant’s truck.
Officer Vandevoorde smelled marijuana inside Defendant’s truck and asked
Defendant for consent to search the vehicle. Defendant consented, but claimed he
was having trouble opening the truck door with the key in his possession. Officer
Vandevoorde opened the passenger door of the truck. Officer Vandevoorde asked
Defendant not to reach inside the truck after they opened the door.
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STATE V. CULBERTSON
Opinion of the Court
Against Officer Vandevoorde’s instruction, Defendant reached into the car as
the officer was opening the door. Both officers moved to restrain Defendant from
putting his arm inside the truck. Defendant became combative and began to struggle
with both officers. The officers discharged their tasers on Defendant several times,
but Defendant continued to resist them. Officer Vandevoorde eventually wrestled
Defendant onto the ground, where Officer Hanson attempted to place him in
handcuffs. During the fight, Defendant yelled “Momma, get my weed out from under
the car seat, under the driver’s seat.”
The officers called in for backup. Several other officers responded to the
request for backup and assisted to restrain Defendant and secure him on the backseat
of a police car. Officer Vandevoorde searched Defendant’s truck and found a diaper
bag containing more than 300 grams of marijuana, which was packaged in several
smaller bags. Officer Vandevoorde also found a plastic bag, under the driver’s seat,
which contained several smaller bags of heroin.
Officers Hanson and Vandevoorde both sustained injuries in the fight with
Defendant. Officer Vandevoorde sustained scrapes and lacerations on his knees and
hands. Officer Hanson injured his anterior cruciate ligament (ACL) and the meniscus
of his knee, which led to several surgeries and rehabilitation time to recover.
II. Procedural history
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STATE V. CULBERTSON
Opinion of the Court
On 29 August 2016, Defendant entered guilty pleas to: assault inflicting
serious physical injury on a law enforcement officer (Hanson); assault inflicting injury
on a law enforcement officer (Vandevoorde); possession of drug paraphernalia;
maintaining a vehicle/dwelling place for the purpose of keeping and selling controlled
substances; trafficking in opium or heroin; possession with intent to sell or deliver
(“PWISD”) marijuana within 1000 feet of a park; PWISD heroin within 1000 feet of a
park; and, possession of marijuana.
Defendant was sentenced as a prior record level II offender. Defendant
received an active sentence of 90 to 120 months and a fine for the trafficking charge.
The court consolidated the offense of PWISD marijuana near a park with one count
of assault inflicting serious injury on a law enforcement officer and sentenced
Defendant to 29 to 47 months active imprisonment to run consecutively to the
trafficking sentence. Defendant’s sentences on the remaining counts were
suspended, with two consecutive 60 month terms of probation to follow the active
sentences.
Subsequently, the parties realized the court and parties had stated incorrect
offense class levels and sentences for some of the offenses. In order to correct the
sentence, the court did not adjourn the session of court where Defendant’s plea was
accepted. The court informed Defendant that the resentencing would reduce the
amount of active time he would serve, if his probationary sentences were revoked.
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STATE V. CULBERTSON
Opinion of the Court
Defendant nor his counsel asked for and Defendant was not afforded an opportunity
to withdraw his guilty plea. Defendant was re-sentenced on 6 September 2016 as
follows:
[T]he Court recognizes that we needed to correct the
judgment from last week because we did have an incorrect
class on one of the cases in which the Court sentenced. The
trafficking sentence will remain the same. The Court will
then sentence under the possession with intent to sell or
deliver marijuana within a thousand feet of a school in [15
CRS] 50339, to the 29 – minimum 29 maximum 47 months.
The Court would then consolidate the felony assault on a
law enforcement officer inflicting physical injury with that
charge. And then with respect to the assault inflicting
serious personal injury – physical injury on a law
enforcement officer, the Class F, the Court sentences him
to the minimum 25 maximum 47 months, suspended for
five years, I believe it was, supervised probation.
Upon the rendering of his new sentence, Defendant orally entered notice of
appeal. Defendant filed his brief and a petition for writ of certiorari at the same time
to seek review of the judgments and sentences imposed against him.
III. Issues raised by Defendant
In his brief and in his petition for writ of certiorari, Defendant contends the
trial court lacked jurisdiction to accept his guilty pleas on the charges of trafficking,
PWISD marijuana within 1000 feet of a park and PWISD heroin within 1000 feet of
a park. Defendant also asserts that his pleas to these charges were not voluntary,
because of erroneous statements made at the time of the entry of his pleas.
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STATE V. CULBERTSON
Opinion of the Court
Further, Defendant argues the State failed to present a sufficient factual basis
to support his guilty plea to the assault charges.
IV. Right of Appeal
A. N.C. Gen. Stat. § 15A-1444
Defendant acknowledges he has no right to appeal the judgments entered. “A
defendant’s right to appeal in a criminal proceeding is entirely a creation of state
statute.” State v. Biddix, __ N.C. App. __, __, 780 S.E.2d 863, 865 (2015) (citing State
v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C.
442, 573 S.E.2d 163 (2002)). Without express statutory authority, a criminal
defendant does not have a right to appeal a judgment entered under N.C. Gen. Stat.
§ 15A-1444. Id.; see also State v. Ahern, 307 N.C. 584, 605, 300 S.E.2d 689, 702 (1989).
N.C. Gen. Stat. § 15A-1444 provides:
(a1) A defendant who has . . . 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.
(a2) A defendant who has entered a plea of guilty or no
contest to a felony or misdemeanor in superior court is
entitled to appeal as a matter of right the issue of whether
the sentence imposed:
(1) Results from an incorrect finding of the
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STATE V. CULBERTSON
Opinion of the Court
defendant’s prior record level under G.S. 15A-1340.14 or
the defendant’s prior conviction level under G.S. 15A-
1340.21;
(2) Contains a type of sentence disposition that is not
authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the
defendant’s class of offense and prior record or conviction
level; or
(3) Contains a term of imprisonment that is for a
duration not authorized by G.S. 15A-1340.17 or G.S. 15A-
1340.23 for the defendant’s class of offense and prior record
or conviction level.
....
(e) Except as provided in subsections (a1) and (a2) of this
section and G.S. 15A-979, and except when a motion to
withdraw a plea of guilty or no contest has been denied, the
defendant is not entitled to appellate review as a matter of
right when he has entered a plea of guilty or no contest to
a criminal charge in the superior court, but he may petition
the appellate division for review by writ of certiorari . . . .
N.C. Gen. Stat. § 15A-1444 (2015).
Defendant correctly recognizes he raises no issues which provide him an appeal
as of right pursuant to N.C. Gen. Stat. § 15A-1444(a2). The State’s motion to dismiss
Defendant’s appeal is allowed. Defendant’s purported appeal is dismissed.
B. Appellate Rule 21
To support his petition that a writ of certiorari should be allowed, Defendant
cites our Supreme Court in State v. Wallace that “where an indictment is alleged to
be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge
to that indictment may be made at any time, even if it was not contested in the trial
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STATE V. CULBERTSON
Opinion of the Court
court.” State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000), cert. denied,
531 U.S. 1018, 148 L. Ed. 2d 498 (2001).
Defendant asserts the trial court lacked subject matter jurisdiction to accept
his guilty plea to the two charges of PWISD marijuana and heroin within 1000 feet
of a park. He argues the indictments for these offenses failed to allege the essential
element of his age being over 21 at the time of the offenses. Defendant argues
indictments charging statutory offenses must allege all of the essential elements of
the offenses. Defendant also asserts the trafficking indictment failed to specifically
name heroin instead of the general category of opium derivative.
With respect to the two indictments for PWISD, Defendant would present a
meritorious claim, were both raised on a motion for appropriate relief. Defendant
claims and the State concedes that the indictments for PWISD within 1000 feet of a
park failed to allege and did not state that the Defendant’s age was over 21 years.
While N.C. Gen. Stat. § 15A-1444(e) provides jurisdiction and affords a
defendant the opportunity to seek discretionary appellate review by petition for
certiorari, Defendant’s petition does not assert any claim or grounds to qualify it for
appellate review by certiorari under Appellate Rule 21. N.C. R. App. P. 21.
As such, Defendant’s petition for writ of certiorari is subject to dismissal. See
e.g., State v. Nance, 155 N.C. App. 773, 774-75, 574 S.E.2d 692, 693-94 (2003)
(“Defendant [sought] to bring forth a claim that he did not knowingly and voluntarily
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STATE V. CULBERTSON
Opinion of the Court
plead guilty to having attained the status of habitual felon. However, defendant has
sought neither to withdraw his guilty plea, nor to obtain any other relief by motion
in the superior court. Defendant’s claim [was] not one that he may raise on direct
appeal pursuant to G.S. § 15A-1444(a)(1) or (a)(2). Further, defendant [had] not lost
his right of appeal through untimely action, nor is he attempting to appeal an
interlocutory order or seeking review of an order denying a motion for appropriate
relief under G.S. § 15A-1422(c)(3).”).
Under these facts, we conclude Defendant does not have a right to appeal the
issue presented here under N.C. Gen. Stat. § 15A-1444(a)(1) or (a)(2), and Defendant
has not asserted any stated grounds under N.C. R. App. P. 21(a)(1) for this Court to
issue a writ of certiorari.
Rule 21 “does not provide a procedural avenue for a party to seek appellate
review by certiorari of an issue pertaining to the entry of a guilty plea.” Biddix, __
N.C. at __, 780 S.E.2d at 870; see also, State v. Pennell, 367 N.C. 466, 472, 758 S.E.2d
383, 387 (2014) (“The proper procedure through which defendant may challenge the
facial validity of the original indictment is by filing a motion for appropriate relief
under [N.C. Gen. Stat.] § 15A-1415(b) or petitioning for a writ of habeas corpus.”).
C. Appellate Rule 2
Under N.C. R. App. P. 2, this Court possesses the discretionary authority to
suspend requirements of the North Carolina Rules of Appellate Procedure and issue
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STATE V. CULBERTSON
Opinion of the Court
a writ of certiorari. “Rule 2 relates to the residual power of our appellate courts to
consider, in exceptional circumstances, significant issues of importance in the public
interest, or to prevent injustice which appears manifest to the Court and only in such
instances.” Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999).
This assessment- whether a particular case is one of the
rare ‘instances’ appropriate for Rule 2 review- must
necessarily be made in light of the specific circumstances of
individual cases and parties, such as whether substantial
rights of an appellant are affected. In simple terms,
precedent cannot create an automatic right to review via
Rule 2. Instead, whether an appellant has demonstrated
that his matter is the rare case meriting suspension of our
appellate rules is always a discretionary determination to
be made on a case-by-case basis.
State v. Campbell, __ N.C. __, __, 799 S.E.2d 600, 602-03 (2017) (emphasis original)
(footnote, internal citations and quotation marks omitted).
This Court must “independently and expressly determine whether, on the facts
and under the circumstances of this specific case, to exercise its discretion to employ
Rule 2 of the North Carolina Rules of Appellate Procedure, suspend [the] Rule . . .
and consider the merits of defendant’s fatal variance argument.” Campbell, __. N.C.
at __, 799 S.E.2d at 603.
Under Appellate Rule 2, our appellate courts have the
discretion to suspend the Rules of Appellate Procedure to
prevent manifest injustice to a party. N.C. R. App. P. 2;
Biddix, __ N.C. App. at __, 780 S.E.2d at 868.
Furthermore, this court may invoke Rule 2 “either ‘upon
application of a party’ or upon its own initiative.’” Biddix,
__ N.C. App. at __, 780 S.E.2d at 868 (quoting Bailey v.
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STATE V. CULBERTSON
Opinion of the Court
North Carolina, 353 N.C. 142, 157, 540 S.E.2d 313, 323
(2000)). “This Court has previously recognized the Court
may implement Appellate Rule 2 to suspend Rule 21 and
grant certiorari, where the three grounds listed in
Appellate Rule 21 to issue the writ do not apply.” Id.
State v. Anderson, __ N.C. App. __, __, __ S.E.2d __, __, 2017 WL 3254414, at *7.
In State v. Biddix, the defendant asserted the trial court erred in accepting
his guilty plea as a product of his informed choice where the terms of his plea
arrangement were contradictory. Biddix, __ N.C. App. at __, 780 S.E.2d at 865. We
held the defendant did not demonstrate and we did not find “‘exceptional
circumstances’ necessary to exercise our discretion to invoke Appellate Rule 2 . . . .”
Id. at __, 780 S.E.2d at 868.
In Anderson, the defendant pled guilty to a statute which had been
determined to be overbroad in another case. On appeal, the State had not offered
argument contrary to that previous decision. This Court utilized Rule 2 and
suspended our rules where “an independent determination of the specific
circumstances of defendant’s case reveals that [the] case [was] one of the rare
instances appropriate for Rule 2 review in that defendant’s substantial rights are
affected.” Anderson, __ N.C. App. at __, __ S.E.2d at __, 2017 WL 3254414, at *7
(citation and internal quotation marks omitted).
The State concedes both indictments for PWISD marijuana and PWISD heroin
near a park failed to contain the essential allegation that Defendant was over the age
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STATE V. CULBERTSON
Opinion of the Court
of 21. The State also concedes and it is well settled that “[a]n indictment charging a
statutory offense must allege all of the essential elements of the offense.” State v. De
La Sancha Cobos, 211 N.C. App. 536, 540, 711 S.E.2d 464, 468 (2011) (citing State v.
Crabtree, 286 N.C. 541, 544, 212 S.E.2d 103, 105 (1975)); see also State v. Perry, 291
N.C. 586, 597, 231 S.E.2d 262, 269 (1977) (holding the age of the defendant was an
essential element for first degree rape and a conviction could not stand where the
State failed to allege the defendant was over the age of 16); State v. Byrd, __ N.C.
__,796 S.E.2d 405, No. COA16-619, 2017 WL 676960, at *2 (unpublished) (holding
the offenses listed in N.C. Gen. Stat. § 90-95(e)(8), PWISD near a child care center,
required the State to allege and prove that Byrd was “21 years of age or older” at the
time of commission).
Invalid indictments deprive the trial court of its jurisdiction. Wallace, 351 N.C.
at 503, 528 S.E.2d at 341. Appellate courts may consider challenges to facially invalid
indictments at any time, even when not contested at trial. State v. Braxton, 352 N.C.
158, 173, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S.1130, 148 L. Ed. 2d 797
(2001) (citation omitted); see also State v. Bartley, 156 N.C. App. 490, 499, 577 S.E.2d
319, 324 (2003) (“Our Supreme Court has stated that an indictment is fatally
defective when the indictment fails on the face of the record to charge an essential
element of the offense.”).
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STATE V. CULBERTSON
Opinion of the Court
After reviewing Defendant’s claims and the State’s concession of error, in our
discretion and in the interest of judicial economy, manifest injustice would occur if
Defendant’s convictions were allowed to stand on charges, which the trial court did
not possess jurisdiction to impose sentence. For these reasons and in the exercise of
our discretion under Rule 2, we suspend Rule 21, and issue the writ of certiorari solely
to address the trial court’s lack of subject matter jurisdiction.
V. Analysis of Merits of Claims
N.C. Gen. Stat. § 90-95(e)(10) provides, “any person 21 years of age or older
who commits an offense under [N.C. Gen. Stat. §] 90-95(a)(1) on property that is a
public park . . . shall be punished as a Class E felon.”
Defendant was charged in count III of the indictment in 15 CRS 50339 as
follows,
the defendant named above unlawfully, willfully, and
feloniously did commit a violation of North Carolina
General Statute 90-95, possess with the intent to sell and
deliver marijuana, which is included in Schedule VI of the
North Carolina Controlled Substances Act, within 1000
feet of the boundary of real property used as a playground,
Caldwell Park, located at 362 Georgia Street Southwest,
Concord, North Carolina.
Similarly in count I of the indictment in 15 CRS 50451, Defendant was charged
with PWISD heroin in the same park location. Neither indictment sets forth an
allegation of Defendant’s age or alleges that he is over the age of 21. Nothing in the
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STATE V. CULBERTSON
Opinion of the Court
record shows any stipulation or admission concerning Defendant’s age at the time of
his arrest.
Based upon the State’s concession and this Court’s prior holdings, count III in
the multicount indictment in 15 CRS 50339 and count I in the multicount indictment
in 15 CRS 50451 are fatally deficient. The superior court did not possess jurisdiction
to accept Defendant’s plea and sentence him on these two counts.
Because these convictions must be vacated, Defendant’s entire plea agreement
and the judgments entered thereon must be set aside and this matter remanded to
the trial court. We express no opinion on the merits of these two charges. Nothing
in this opinion binds the State or Defendant to the set aside vacated pleas or
sentences previously entered and vacated or restricts re-indictment.
VI. Conclusion
Defendant’s purported appeal of right is dismissed. In the exercise of our
discretion under Rule 2, and in the interest of judicial economy, Defendant’s petition
for writ of certiorari is allowed as set out above.
The trial court did not possess jurisdiction to accept Defendant’s plea or to
impose judgments to PWISD marijuana near a park in count III of 15 CRS 50339 or
PWISD heroin near a park in count I of 15 CRS 50451. These convictions and
judgments thereon are vacated.
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STATE V. CULBERTSON
Opinion of the Court
Since the Defendant pled guilty to these offenses pursuant to a plea
arrangement, and the superior court entered consolidated judgments, the entire plea
arrangement must be set aside and this matter is remanded to the superior court for
further proceedings. In light of our decision, it is unnecessary to and we do not
address Defendant’s remaining arguments, which are rendered moot with the set
aside of the plea arrangement. It is so ordered.
APPEAL DISMISSED. PETITION FOR WRIT OF CERTIORARI ALLOWED.
VACATED IN PART AND REMANDED.
Judges ELMORE and STROUD concur.
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