State v. Wright ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-418
No. COA20-250
Filed 21 June 2022
Wake County, Nos. 15 CRS 217444, 18 CRS 001526
STATE OF NORTH CAROLINA
v.
NICODEMUS WRIGHT, Defendant.
Appeal by Defendant from judgment entered 18 September 2019 by Judge
Michael A. Stone in Wake County Superior Court. Heard in the Court of Appeals 13
April 2021.
Attorney General Joshua H. Stein, by Assistant Attorney General Robert C.
Ennis, for the State.
Daniel J. Dolan for defendant-appellant.
MURPHY, Judge.
¶1 An indictment must sufficiently allege all essential elements, or the facts
underlying all essential elements, of an offense to put a defendant on notice as to the
offense being charged in order to grant the trial court jurisdiction to hear a felony
case. However, an indictment need not follow hyper-technical rules to be valid. Here,
the trial court properly recognized the validity of the indictment, which sufficiently
alleged the underlying facts essential for each element to apprise Defendant that he
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
was charged with a failure to notify the last registering sheriff of a change of address.
¶2 Jury instructions are subject to plain error review when a defendant fails to
preserve an alleged instructional error for appellate review, requiring a showing that
the alleged error had a probable impact of the jury’s verdict as opposed to a possible
impact. Here, the trial court did not plainly err in instructing the jury regarding the
State’s burden of proof as it properly instructed that the State was required to prove
all elements beyond a reasonable doubt. Additionally, the trial court did not plainly
err in instructing the jury on the elements of failure to notify the last registering
sheriff of a change of address, even assuming it erred by not indicating that there
must be a willful failure to notify the sheriff’s office of a change of address, because
such an error would not have had a probable impact on the jury’s verdict due to the
clear, accurate statement of the mens rea requirement immediately prior to the
assumed error.
¶3 A motion to dismiss for insufficiency of the evidence should be denied if, when
viewing the evidence in the light most favorable to the State, there is substantial
evidence of each essential element of the offense. Here, there was substantial
evidence of each essential element of Defendant’s failure to notify the last registering
sheriff of a change of address and his attaining habitual felon status.
¶4 In non-capital cases, defendants have a statutory right to allocution when they
assert that right prior to sentencing. Here, because the trial court denied Defendant
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
his right to allocution after he clearly and repeatedly articulated his desire to exercise
this right, we vacate the trial court’s sentence and remand for a new sentencing
hearing.
¶5 Finally, a petition for writ of certiorari is a discretionary writ that should only
be allowed when the petition shows merit in the underlying issue. There can be no
merit in an appeal regarding an underlying issue when the record does not show the
order from which a defendant requests review was actually entered. An order is not
considered entered where it has not been filed with the county clerk of court. Here,
the civil judgment order for attorney fees for which Defendant seeks our review does
not reflect that it was filed with the county clerk of court, and therefore there is no
merit to the petition for writ of certiorari. We deny Defendant’s petition for writ of
certiorari and dismiss the portion of his appeal related to the civil judgment order for
attorney fees.
BACKGROUND
¶6 Defendant Nicodemus Wright was convicted of second-degree rape in 2006. In
November 2011, following his release from prison, he was required to enroll in the
sex offender and public protection registry and required to inform his local sheriff’s
office of his address in accordance with N.C.G.S. § 14-208.7. In early July 2015,
Defendant’s registered address was a men’s shelter in Raleigh; however, on 9 July
2015, Defendant was taken to a month-long drug treatment program in Goldsboro by
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
his post-release supervisor. Defendant left this program after two days and did not
return to the men’s shelter. From 11 July 2015, when Defendant left the drug
treatment program, until his eventual arrest on 4 August 2015, Defendant did not
update his registered address. As a result, Defendant’s registered address remained
listed as the men’s shelter in Raleigh, but he did not stay there at any point after he
left the program.
¶7 Defendant’s former girlfriend, Linda Burt, testified that Defendant began
staying at her home two days after his departure from the program, kept his clothes
and books at her home during this time period, and was staying with her at the time
of his arrest.
¶8 Following the State’s evidence, Defendant made motions to dismiss on the
basis of the indictment being fatally defective and for insufficiency of the evidence.
Specifically, Defendant alleged that the indictment failed to state explicitly that he
was required to register as a sex offender and to notify the sheriff’s office of a move
within three days. The indictment read:
THE JURORS FOR THE STATE UPON THEIR OATH
PRESENT that on or about the [4 August] 2015, in Wake
County, the defendant named above unlawfully, willfully
and feloniously did violate the North Carolina Sex
Offender and Public Protection Registration Program, by
having been convicted in Wake County Superior Court on
18th day of September 2006 of Second[-]Degree Rape, a
reportable offense and failing to notify the Sheriff of Wake
County of a change of address as required by [N.C.G.S.] §
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
14-208.9. This act was done in violation of [N.C.G.S.] § 14-
208.11(A)(2)[.]
The trial court denied the motions.
¶9 Defendant then presented evidence. Defendant testified that he understood
his obligation to notify his local sheriff’s office of any address change and he had
consistently updated his address. Defendant testified on cross-examination that, in
2011, he had acknowledged his understanding of his obligations regarding the
registry in writing. Additionally, Defendant testified that the Goldsboro program had
registered him in Goldsboro and that he never lived with his girlfriend, instead
claiming he stayed in Goldsboro until around 2 August 2015.
¶ 10 Defendant also called his post-release officer to testify. Defendant’s post-
release officer confirmed that a program officer had indicated that the program was
going to notify the Wayne County Sheriff’s Office of Defendant’s change of address,
but he was unaware if this actually occurred. Defendant renewed his motions to
dismiss at the conclusion of all evidence, and the trial court again denied the motions.
The trial court instructed the jury, and the jury found Defendant guilty of violating
the sex offender and public protection registry.
¶ 11 Defendant was then tried for having attained habitual felon status. Two prior
convictions for attempted robbery and attempted criminal sale of a controlled
substance in the fifth degree from New York were used as the first two underlying
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
felonies, with the third being his second-degree rape conviction in North Carolina. At
the conclusion of the State’s evidence, Defendant made a motion to dismiss, which
the trial court denied. Defendant was found guilty of attaining habitual felon status,
and the trial court proceeded to sentencing. At sentencing, the following exchange
occurred:
THE COURT: All right. Stand up, [Defendant]. Anything
you want to say?
THE DEFENDANT: Yes. I need – to say what I want to
say, I need to get my paperwork.
THE COURT: Well, we’re not going to do that. Anything
you want to say to me right now before you’re sentenced?
THE DEFENDANT: Yes. I asked to get it before I even
came out here, and they rushed me and said, “Come on
now.” Please. I mean, this is my chance to speak to you.
THE COURT: Anything you want to say to me before you’re
sentenced?
THE DEFENDANT: Yes, I do. I have it right there in –
THE COURT: All right. Your papers aren’t relevant right
now. All right. Moving to sentencing, Madam Clerk, it is
a class C on the habitual felon status, record level two. The
sentence will be in the presumptive range. He’s sentenced
to a minimum term of 83 months, maximum terms of 112
months active time. He’s to receive credit for all pretrial
confinement. All right. Good luck to you, [Defendant] . . .
.
MS. STROMBOTNE: Sorry, Judge. I didn’t mean to
interrupt. I would like to enter notice of appeal in open
court.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
THE COURT: All right. Enter notice of appeal.
THE DEFENDANT: I don’t just – I don’t get to say
anything now to you, Judge?
THE COURT: No.
¶ 12 On 18 September 2019, the trial court imposed an active sentence of 83 to 112
months. The criminal judgment provided for $0.00 in attorney fees. On 25 October
2019, a Non-Capital Criminal Case Trial Level Fee Application Order for Payment
Judgment Against Indigent was signed by the trial court, purporting to approve a
civil judgment for attorney fees in the amount of $3,562.50.
ANALYSIS
¶ 13 On appeal, Defendant argues (A) “[t]he judgment must be vacated because the
indictment charging a violation of the sex offender and public protection registry fails
to allege three essential elements, depriving the trial court of jurisdiction and
violating [Defendant’s] right to due process”; (B) “[Defendant] must receive a new
trial because the trial court plainly erred by [(1)] failing to instruct the jury as to an
element of an offense and [(2)] by misstating an element of an offense”; (C) “[t]he trial
court erroneously denied [Defendant’s] motion to dismiss the charge of a violation of
the sex offender and public protection registry and the charge of attaining habitual
felon status because there was not substantial evidence of either charge”; (D) “[t]his
case must be remanded for a new sentencing hearing because the trial court deprived
[Defendant] of his right to allocution”; and (E) “[t]he trial court erred by ordering
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
[Defendant] to pay attorney[] fees and the attorney appointment fee without affording
him notice and an opportunity to be heard.”1
A. Sufficiency of the Indictment for Failure to Notify the Last Registering
Sheriff of a Change of Address
¶ 14 Defendant contends the indictment fails to sufficiently allege any of the three
essential elements of failure to notify the last registering sheriff of a change of
address and the trial court therefore lacked jurisdiction to enter the judgment. The
State responds that the Defendant is employing a hyper-technical reading of the
indictment and that a plain reading reveals the essential elements are laid out, even
if not in the most explicit terms.
It is well settled that a valid bill of indictment is essential
to the jurisdiction of the trial court to try an accused for a
felony. Lack of jurisdiction in the trial court due to a fatally
defective indictment requires the appellate court to arrest
judgment or vacate any order entered without authority.
The issue of subject matter jurisdiction may be raised at
any time, even for the first time on appeal. The subject
matter jurisdiction of the trial court is a question of law,
which this Court reviews de novo on appeal.
State v. Barnett, 223 N.C. App. 65, 68, 733 S.E.2d 95, 97-98 (2012) (marks and
citations omitted).
¶ 15 “The North Carolina Constitution guarantees that, ‘in all criminal
Defendant has also filed a petition for writ of certiorari regarding this issue, which
1
we address in our discussion of this issue.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
prosecutions, every person charged with [a] crime has the right to be informed of the
accusation.’” State v. Williams, 368 N.C. 620, 623, 781 S.E.2d 268, 270 (2016)
(quoting N.C. Const. art. I, § 23). For felonies, this often occurs by indictments, which
must contain
[a] plain and concise factual statement in each count
which, without allegations of an evidentiary nature,
asserts facts supporting every element of a criminal offense
and the defendant’s commission thereof with sufficient
precision clearly to apprise the defendant or defendants of
the conduct which is the subject of the accusation.
N.C.G.S. § 15A-924(a)(5) (2021). Our Supreme Court has interpreted this statute,
holding “that it is not the function of an indictment to bind the hands of the State
with technical rules of pleading, and that we are no longer bound by the ancient strict
pleading requirements of the common law.” Williams, 368 N.C. at 623, 781 S.E.2d at
270-71. “Instead, contemporary criminal pleading requirements have been designed
to remove from our law unnecessary technicalities which tend to obstruct justice.” Id.
at 623, 781 S.E.2d at 271 (marks omitted). Our statutes reflect this, providing:
Every criminal proceeding by warrant, indictment,
information, or impeachment is sufficient in form for all
intents and purposes if it express[es] the charge against
the defendant in a plain, intelligible, and explicit manner;
and the same shall not be quashed, nor the judgment
thereon stayed, by reason of any informality or refinement,
if in the bill or proceeding, sufficient matter appears to
enable the court to proceed to judgment.
N.C.G.S. § 15-153 (2021).
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
¶ 16 Our caselaw has elaborated on what indictments must contain based on
contemporary standards:
In order to be valid and thus confer jurisdiction upon the
trial court, an indictment charging a statutory offense
must allege all of the essential elements of the offense. The
indictment is sufficient if it charges the offense in a plain,
intelligible and explicit manner. Indictments need only
allege the ultimate facts constituting each element of the
criminal offense and an indictment couched in the
language of the statute is generally sufficient to charge the
statutory offense. While an indictment should give a
defendant sufficient notice of the charges against him, it
should not be subjected to hyper technical scrutiny with
respect to form. The general rule in this State and
elsewhere is that an indictment for a statutory offense is
sufficient, if the offense is charged in the words of the
statute, either literally or substantially, or in equivalent
words.
Barnett, 223 N.C. App. at 68-69, 733 S.E.2d at 98 (marks and citations omitted).
¶ 17 Here, Defendant challenges his indictment for failure to notify the last
registering sheriff of his change of address. This offense is described in N.C.G.S. §
14-208.11(a)(2), which states, in relevant part, “[a] person required by this Article to
register who willfully does . . . the following is guilty of a Class F felony: . . . Fails to
notify the last registering sheriff of a change of address as required by this Article.”
N.C.G.S. § 14-208.11(a)(2) (2021). The obligation to notify the last registering sheriff
of a change of address appears in N.C.G.S. § 14-208.9(a), which states, in relevant
part, “[i]f a person required to register changes address, the person shall report in
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
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.” N.C.G.S. § 14-208.9(a) (2021).
¶ 18 Based on these statutes, we have previously held that the three essential
elements of the failure to notify the last registering sheriff of a change of address
under N.C.G.S. § 14-208.11(a)(2) are “(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.” Barnett, 223 N.C. App. at 69, 733 S.E.2d at 98.
¶ 19 Here, the indictment reads:
THE JURORS FOR THE STATE UPON THEIR OATH
PRESENT that on or about the [4 August] 2015, in Wake
County, the defendant named above unlawfully, willfully
and feloniously did violate the North Carolina Sex
Offender and Public Protection Registration Program, by
having been convicted in Wake County Superior Court on
18th day of September 2006 of Second[-]Degree Rape, a
reportable offense and failing to notify the Sheriff of Wake
County of a change of address as required by [N.C.G.S.] §
14-208.9. This act was done in violation of [N.C.G.S.] § 14-
208.11(A)(2)[.]
We analyze each of the essential elements separately below.
1. Required to Register
¶ 20 Defendant first contends that, like in Barnett, the indictment does not
explicitly state Defendant was required to register. The State responds that, unlike
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
the indictment in Barnett, the indictment here instead provides the “facts indicating
why it would be a crime for Defendant to ‘fail to provide written notice or notify the .
. . Sheriff's Department [sic] within three business days after a change of address.’”
Id. at 69, 733 S.E.2d at 98-99. We hold the first element is sufficiently alleged here.
¶ 21 In Barnett, we assessed the validity of an indictment that read:
The jurors for the State upon their oath present that on or
about 8 June 2010 and in Gaston County the defendant
named above unlawfully, willfully and feloniously did fail
to provide written notice or notify the Gaston County
Sheriff's Department [sic] within three business days after
a change of address as required by the North Carolina
General Statute 14–208.9.
Id. at 69, 733 S.E.2d at 98. We stated:
While the indictment substantially tracks the statutory
language set forth in [N.C.G.S.] § 14–208.9(a) with respect
to the second and third elements of the offense, it makes no
reference to the first essential element of the offense, i.e.,
that Defendant be “a person required to register.” The
indictment does not allege that Defendant is a registered sex
offender, nor any facts indicating why it would be a crime
for Defendant to “fail to provide written notice or notify the
Gaston County Sheriff's Department [sic] within three
business days after a change of address.” Moreover, the
State’s contention that the indictment language “as
required by the North Carolina General Statute 14–208.9”
was adequate to “put Defendant on notice of the charge[]
and [] inform[] him with reasonable certainty the nature of
the crime charged” is unavailing, as “it is well established
that ‘“[m]erely charging in general terms a breach of [a]
statute and referring to it in the indictment is not
sufficient”’ to cure the failure to charge ‘the essentials of
the offense’ in a plain, intelligible, and explicit manner.”
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
Id. at 69-70, 733 S.E.2d at 98-99 (emphasis added). We ultimately concluded that the
indictment was insufficient to confer subject matter jurisdiction on the trial court and
vacated the defendant’s conviction without prejudice to re-prosecution. Id. at 72, 733
S.E.2d at 100.
¶ 22 Although, like in Barnett, the indictment here does not explicitly state that
Defendant was required to register, the indictment instead provides the factual basis
for the requirement that he register—his conviction of the reportable offense of
second-degree rape—and therefore is distinguishable from Barnett and complies with
N.C.G.S. § 15A-924(a)(5) and N.C.G.S. § 15-153. See State v. Rambert, 341 N.C. 173,
176, 459 S.E.2d 510, 512 (1995) (“[I]ndictments need only allege the ultimate facts
constituting each element of the criminal offense.”).
¶ 23 The indictment alleges that Defendant was previously convicted of second-
degree rape in 2006 and pleads facts that constitute the first essential element of
failure to notify the last registering sheriff of a change of address—that Defendant
was required to register. This satisfies the requirements of our statutes, caselaw,
and Constitution.
2. Change of Address
¶ 24 Defendant next contends the indictment must have specifically alleged that
Defendant changed his address. The State responds that the indictment necessarily
indicates that a change in address occurred. We hold that the indictment here
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
sufficiently alleges the second essential element of failing to register.
¶ 25 In State v. Reynolds, we upheld an indictment that did not state the defendant
changed his address and instead simply stated:
[A]s a person required by Article 27A of Chapter 14 of the
General Statutes to register as a sex offender, fail to notify
the last registering Sheriff, Graham Atkinson, of an address
change by failing to appear in person and provide written
notice of his address after his release from incarceration[.]
State v. Reynolds, 253 N.C. App. 359, 367-68, 800 S.E.2d 702, 708 (2017) (emphasis
added), disc. rev. denied, 370 N.C. 693, 811 S.E.2d 159 (2018). In Reynolds, we upheld
the indictment as it “substantially track[ed] the language of . . . the statute under
which [the defendant] was charged, thereby providing defendant adequate notice.”
Id. (quoting Williams, 368 N.C. at 626, 781 S.E.2d at 273).
¶ 26 Here, like in Reynolds, the indictment substantially tracks the language of
N.C.G.S. § 14-208.11(a)(2) by stating “the defendant named above unlawfully,
willfully and feloniously did violate the North Carolina Sex Offender and Public
Protection Registration Program, by . . . failing to notify the Sheriff of Wake County
of a change of address as required by [N.C.G.S.] § 14-208.9.” (Emphasis added).
N.C.G.S. § 14-208.11(a)(2) states “[a] person required by this Article to register who
willfully does any of the following is guilty of a Class F felony: . . . Fails to notify the
last registering sheriff of a change of address as required by this Article.” N.C.G.S. §
14-208.11(a)(2) (2021). The indictment sufficiently alleges the second essential
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
element of failure to notify the last registering sheriff of a change of address—that
Defendant changed his address—by mirroring the statutory language.
3. Update Address within Three Days
¶ 27 Finally, Defendant contends the indictment fails to indicate that the change in
address occurred within three business days. He argues this, in part, because the
change in address is not sufficiently indicted; however, given our holding that the
second element is sufficiently alleged, we need not address this portion of Defendant’s
argument here.
¶ 28 To the extent that Defendant challenges the lack of the inclusion of “three
business days” in the indictment, we have previously addressed this issue in State v.
McLamb, 243 N.C. App. 486, 777 S.E.2d 150 (2015). In McLamb, we held:
[T]he indictment in this case, which alleged “[the]
defendant . . . did, as a person required by Article 27A of
Chapter 14 of the General Statutes to register, fail[] to
notify the last registering sheriff of a change of address in
that he moved from 1134 Renfrow Road in Clinton, North
Carolina, on or about [18 December] 2012 to 206 Smith Key
Lane in Clinton, North Carolina without notifying the
Sampson County Sheriff[,]” was couched in the language of
the statute and sufficiently alleged the third element of the
offense. To hold otherwise would be to subject the
indictment to hyper technical scrutiny where in this case,
over a period of months, [the] defendant failed to give any
notice to the sheriff of his change of address.
Id. at 490, 777 S.E.2d at 152-53. Although Defendant’s failure to notify the Wake
County Sheriff’s Office here did not occur over a period of months, McLamb’s holding
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
is equally applicable here as Defendant did not update his address for 24 days at the
least, which far outlasts the statutory timeframe of three business days. Like the
argument in McLamb, Defendant’s hyper-technical argument fails. Defendant’s
indictment sufficiently alleged the third essential element of failure to notify the last
registering sheriff of a change of address—that Defendant failed to notify the Wake
County Sheriff’s Office of his change of address within three business days of the
change.
¶ 29 As a result, the indictment sufficiently alleged all three essential elements,
and the trial court had jurisdiction over the case. While the indictment could have
been more explicit as a best practice, the indictment here was sufficient to provide
Defendant notice of the charge against him, and we will not subject it to hyper-
technical scrutiny. See Barnett, 223 N.C. App. at 68, 733 S.E.2d at 98 (marks and
citations omitted) (“While an indictment should give a defendant sufficient notice of
the charges against him, it should not be subjected to hyper technical scrutiny with
respect to form.”).
B. Plain Error in Jury Instruction
¶ 30 Defendant contends the trial court committed plain error in improperly
instructing the jury on the elements of failing to update an address when,
[e]arly in the instruction for the offense of violating the sex
offender and public protection registry, the trial court did
not instruct the jury that the prosecution had to prove
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
beyond a reasonable doubt that [Defendant] changed his
address.
Defendant also contends the trial court erroneously instructed that Defendant must
have willfully changed his address rather than willfully failed to report his change of
address, when
[i]n the final mandate, the trial court instructed the jury
that if it found beyond a reasonable doubt that “the
defendant willfully changed the defendant’s address and
failed to provide written notice of the defendant’s new
address in person at the Sheriff’s Office no later than three
business days after the change of address to the Sheriff’s
Office in the county with whom the defendant had last
registered, it would be [their] duty to return a verdict of
guilty.”
¶ 31 “Whether a jury instruction correctly explains the law is a question of law,
reviewable by this Court de novo.” State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d
22, 29, disc. rev. denied, 364 N.C. 327, 700 S.E.2d 926 (2010). “This Court reviews
jury instructions contextually and in its entirety.” See State v. Glynn, 178 N.C. App.
689, 693, 632 S.E.2d 551, 554 (marks omitted), appeal dismissed, 360 N.C. 651, 637
S.E.2d 180 (2006). “When reviewed as a whole, isolated portions of a charge will not
be held prejudicial when the charge as a whole is correct. The fact that isolated
expressions, standing alone, might be considered erroneous will afford no ground for
a reversal.” Id. (marks omitted). Generally, “an error in jury instructions is
prejudicial and requires a new trial only if ‘there is a reasonable possibility that, had
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
the error in question not been committed, a different result would have been reached
at the trial out of which the appeal arises.’” State v. Castaneda, 196 N.C. App. 109,
116, 674 S.E.2d 707, 712 (2009) (quoting N.C.G.S. § 15A-1443(a) (2007)). However,
we employ a more demanding standard of prejudice when we review an unpreserved
issue for plain error:
[T]he North Carolina plain error standard of review applies
only when the alleged error is unpreserved, and it requires
the defendant to bear the heavier burden of showing that
the error rises to the level of plain error. To have an alleged
error reviewed under the plain error standard, the
defendant must specifically and distinctly contend that the
alleged error constitutes plain error. Furthermore, plain
error review in North Carolina is normally limited to
instructional and evidentiary error.
State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (marks and citations
omitted); see also N.C. R. App. P. 10(a)(4) (2022). Plain error arises when the error is
“‘so basic, so prejudicial, so lacking in its elements that justice cannot have been
done[.]’” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L.
Ed. 2d. 513 (1982)). “Under the plain error rule, [a] defendant must convince this
Court not only that there was error, but that absent the error, the jury probably would
have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692,
697 (1993).
1. Burden of Proof
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
¶ 32 Here, the first error alleged by Defendant—that the trial court erred in failing
to instruct the jury that the prosecution had to prove that Defendant changed his
address beyond a reasonable doubt—is undermined by the transcript. The
instructional language that Defendant refers to is:
[D]efendant has been charged with willfully failing to
comply with the Sex Offender Registration law. For you to
find [] [D]efendant guilty of this offense, the State must
prove three things beyond a reasonable doubt. First, that []
[D]efendant was a resident of North Carolina. Second, that
[] [D]efendant had previously been convicted of a
reportable offense for which [] [D]efendant must register.
If you find beyond a reasonable doubt that on [18
September 2006], in Wake County Superior Court, []
[D]efendant was convicted of second-degree rape, then this
would constitute a reportable offense for which []
[D]efendant must register. And, third, [] [D]efendant
willfully failed to provide written notice of a change of
address in person at the Sheriff's Office no later than three
business days after the change of address to the Sheriff's
Office in the county with whom the defendant had last
registered.
(Emphasis added).
¶ 33 As an initial matter, the instruction provided indicates that all of the elements
listed must be proven beyond a reasonable doubt. Additionally, the paragraphs
before and after the instruction make abundantly clear that the elements must be
proven beyond a reasonable doubt:
[D]efendant has entered a plea of not guilty. The fact that
[] [D]efendant has been indicted and charged is no evidence
of guilt. Under our system of justice, when a defendant
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
pleads not guilty, the defendant is not required to prove the
defendant's innocence. [] [D]efendant is presumed to be
innocent. The State must prove to you that [] [D]efendant
is guilty beyond a reasonable doubt. A reasonable doubt is
a doubt based on reason and common sense, arising out of
some or all of the evidence that has been presented, or lack
or insufficiency of the evidence, as the case may be. Proof
beyond a reasonable doubt is proof that fully satisfies or
entirely convinces you of [D]efendant’s guilt.
....
If you find from the evidence beyond a reasonable doubt
that on or about the alleged date, [] [D]efendant was a
resident of North Carolina, that [] [D]efendant had
previously been convicted of a reportable offense for which
[] [D]efendant must register, and that [] [D]efendant
willfully changed [] [D]efendant’s address and failed to
provide written notice of [] [D]efendant’s new address in
person at the Sheriff's Office no later than three business
days after the change of address to the Sheriff's Office in
the county with whom [] [D]efendant had last registered, it
would be your duty to return a verdict of guilty. If you do
not so find or have a reasonable doubt as to one or more of
these things, it would be your duty to return a verdict of
not guilty.
(Emphases added). In light of the explicit and repeated instructions that the jury
must be convinced beyond a reasonable doubt, we find no error, much less plain error,
under Defendant’s first argument regarding jury instructions. See, e.g., Glynn, 178
N.C. App. at 694, 632 S.E.2d at 555 (“Taken as a whole, the trial court’s clarifying
instructions properly set out the elements of the crime and did not lessen the State’s
burden of proof. [The] [d]efendant’s assignment of error is overruled.”).
2. Mens Rea
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
¶ 34 Defendant’s second plain error argument—that the trial court erroneously
instructed that Defendant must have willfully changed his address rather than
willfully failed to report his change of address—is based on the following instruction2:
If you find from the evidence beyond a reasonable doubt
that on or about the alleged date, [] [D]efendant was a
resident of North Carolina, that [] [D]efendant had
previously been convicted of a reportable offense for which
[] [D]efendant must register, and [] [D]efendant willfully
changed [] [D]efendant’s address and failed to provide
written notice of [] [D]efendant’s new address in person at
the Sheriff’s Office no later than three business days after
the change of address to the Sheriff’s Office in the county
with whom [] [D]efendant had last registered, it would be
[your] duty to return a verdict of guilty.
(Emphasis added). Defendant contends:
The final mandate erroneously instructed the jury that [it]
must find that [Defendant] willfully changed his address,
not that he willfully failed to report his change of address.
There is a significant difference between willfully changing
an address and failing to report the change, as opposed to
changing an address and willfully failing to report the
change. The trial court’s instruction misstated the mens
rea requirement that the [General Assembly] has imposed
on the offense. The erroneous instructions were confusing
and they lowered the State’s burden of proof.
2 We note that this portion of the jury instruction verbatim tracks the pattern jury
instruction for failure to notify the last registering sheriff of a change of address. See
N.C.P.I.—Crim. 207.75 (2021). Although pattern jury instructions “have neither the force
nor the effect of law, [our Supreme Court has] often approved of jury instructions that are
consistent with the pattern instructions.” State v. Walston, 367 N.C. 721, 731, 766 S.E.2d
312, 318-19 (2014) (marks and citations omitted).
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
¶ 35 If the jury interpreted the instruction in the manner suggested by Defendant,3
assuming this was an error, such an erroneous instruction did not constitute plain
error because it was not sufficiently prejudicial. The immediately preceding portion
of the jury instructions provided:
[D]efendant has been charged with willfully failing to
comply with the Sex Offender Registration law. For you to
find [] [D]efendant guilty of this offense, the State must
prove three things beyond a reasonable doubt. First, that
[] [D]efendant was a resident of North Carolina. Second,
that [] [D]efendant had previously been convicted of a
reportable offense for which [] [D]efendant must register.
If you find beyond a reasonable doubt that on [18
September 2006], in Wake County Superior Court, []
[D]efendant was convicted of second-degree rape, then this
would constitute a reportable offense for which the
defendant must register. And, third, [] [D]efendant
willfully failed to provide written notice of a change of
address in person at the Sheriff’s Office no later than three
business days after the change of address to the Sheriff’s
Office in the county with whom [] [D]efendant had last
registered.
(Emphasis added). Considering this prior instruction, the jury was informed that the
Defendant must have willfully failed to provide written notice of the change of
3 We believe that another logical interpretation of this instruction would be for
“willfully” to modify both the change of address and failure to provide written notice of the
new address. If this were how the jury interpreted this language, there would be no
prejudicial error as such an interpretation would increase the showing required by the State
to attain a conviction. See State v. Farrar, 361 N.C. 675, 679, 651 S.E.2d 865, 867 (2007)
(“[T]he trial court’s charge to the jury in this case [benefited] [the] defendant, because the
instructions required the State to prove more elements than those alleged in the indictment.
Therefore, there was no prejudicial error in the instructions.”).
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
address. See, e.g., State v. Harris, 222 N.C. App. 585, 590, 730 S.E.2d 834, 838 (“Both
instructions reiterated multiple times that the State must prove that [the] defendant
was the perpetrator of each of the crimes. Given in connection with the entire jury
instruction, the trial court’s jury instruction substantively included an instruction
regarding identity. [The] [d]efendants cannot show that the trial court’s failure to
give a separate instruction on identity beyond that included in the armed robbery
instruction caused the jury to reach a verdict convicting [the] defendants that it
probably would not have reached had a separate instruction been given.”), disc. rev.
denied sub nom, State v. Whitaker, 366 N.C. 413, 736 S.E.2d 175 (2012), cert. denied,
569 U.S. 952, 185 L. Ed. 2d 876 (2013). Additionally, we “presume[] that jurors follow
the trial court’s instructions.” State v. Steen, 352 N.C. 227, 249, 536 S.E.2d 1, 14
(2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001). Thus, we presume the
jury interpreted the allegedly unclear instruction in conjunction with the instruction
clearly indicating that Defendant must have willfully failed to provide written notice.
When these two portions are read together, the jury instructions required the jury to
find a willful failure to provide written notice of a change in address. Even assuming
this instruction was erroneous, it was not prejudicial as it was not probable that any
lack of clarity as to what “willfully” modified impacted this jury’s verdict. Instead, it
was resolved by the prior jury instructions.
¶ 36 The trial court did not commit plain error when instructing the jury.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
C. Motion to Dismiss for Insufficient Evidence
¶ 37 Defendant contends the trial court also improperly denied his motion to
dismiss the charge of failure to notify the last registering sheriff of a change of
address because there was insufficient evidence that Defendant willfully failed to
notify the Wake County Sheriff’s Office of the change in address. Defendant also
argues the trial court erred as there was insufficient evidence that Defendant
committed two of the underlying felonies used to establish that he attained habitual
felon status.
¶ 38 “This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “‘Upon [a] defendant’s
motion for dismissal, the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of [the] defendant’s being the perpetrator of such offense. If
so, the motion is properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d
451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert.
denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its
determination, the trial court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to the State, giving the State
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
the benefit of every reasonable inference and resolving any contradictions in its
favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515
U.S. 1135, 132 L. Ed. 2d 818 (1995).
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of [the]
defendant’s guilt may be drawn from the circumstances.
Once the court decides that a reasonable inference of [the]
defendant’s guilt may be drawn from the circumstances,
then it is for the jury to decide whether the facts, taken
singly or in combination, satisfy [it] beyond a reasonable
doubt that the defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (marks and citation omitted).
1. Sufficient Evidence of Defendant’s Failure to Notify the Last Registering
Sheriff of a Change of Address
¶ 39 Defendant argues the evidence of his willful failure to notify the Wake County
Sheriff's Office of his change of address was insufficient because he was involuntarily
moved to another county for his drug treatment and had previously willingly
complied with the registration requirements. However, the evidence shows, at a
minimum, that Defendant willfully failed to update his address following his
departure from the drug treatment program within the time provided by the statute.
¶ 40 We have held:
‘‘Willful” as used in criminal statutes means the wrongful
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
doing of an act without justification or excuse, or the
commission of an act purposely and deliberately in
violation of law.
The word wil[l]ful, used in a statute creating a criminal
offense, means something more than an intention to do a
thing. It implies the doing [of] the act purposely and
deliberately, indicating a purpose to do it without
authority—careless whether he has the right or not—in
violation of law, and it is this which makes the criminal
intent without which one cannot be brought within the
meaning of a criminal statute.
State v. Moore, 240 N.C. App. 465, 478, 770 S.E.2d 131, 141 (citation omitted), disc.
rev. denied, 368 N.C. 353, 776 S.E.2d 854 (2015).
¶ 41 The evidence, in the light most favorable to the State, shows that Defendant
was aware of his obligation to update his address,4 and was capable of updating his
address, but did not. In the light most favorable to the State, the evidence indicates
that Defendant left the treatment program in Wayne County on 11 July 2019.
Defendant was not found at his former address at the men’s shelter, and the shelter
records reflect that he did not stay there from 11 July 2019 until his arrest on 4
August 2019. Instead, based on the testimony of Defendant’s then-girlfriend, it
appears Defendant stayed at her home in Wake County starting on 13 July 2019 until
the time of his arrest. As a whole, the evidence, when viewed in the light most
4 This is supported by Defendant’s testimony acknowledging his knowledge of this
obligation, his signature on forms indicating his obligations to register, and his past conduct
in updating his address when he has moved.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
favorable to the State, makes clear that Defendant did not update the Wake County
Sheriff’s Office of his change of address from the men’s shelter within three business
days of his change of address.5 Furthermore, when viewed in the light most favorable
to the State, the evidence shows Defendant understood his obligation to notify his
last registered sheriff’s office when he moved. Based on these showings, we conclude
that Defendant’s failure to notify the Wake County Sheriff’s Office of his change of
address was done “purposely and deliberately, indicating a purpose to do it without
authority—careless whether he has the right or not—in violation of law,” and was
thus willful. Id. Accordingly, the trial court did not err.
2. Sufficient Evidence of the Felonies Underlying Defendant Having
Attained Habitual Felon Status
¶ 42 In terms of the sufficiency of the underlying convictions for Defendant having
attained habitual felon status, Defendant argues there was no evidence indicating
the date that the first and second prior felonies were committed. Defendant contends
this is problematic because it thwarts efforts to determine if there was an overlap
between when the felonies occurred or if Defendant was of age. See N.C.G.S. § 14-
7.1(c) (2021) (“For the purposes of this Article, felonies committed before a person
attains the age of 18 years shall not constitute more than one felony. The commission
5 We note there the relevant time period here is from 13 July 2019 until 4 August
2019.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
of a second felony shall not fall within the purview of this Article unless it is
committed after the conviction of or plea of guilty to the first felony.”). The parties
dispute whether our caselaw requires this evidence to survive a motion to dismiss.
However, assuming—without deciding—the evidence is required, there was evidence,
when viewed in the light most favorable to the State, that reflects the date the first
and second prior felonies were committed.
¶ 43 The trial court admitted State’s Exhibit 7-H, which is a criminal record for
Defendant developed from the Division of Criminal Information. This exhibit
contains an incident date for each offense included, information regarding the
disposition of the case, and information regarding sentencing in the case. 6 For the
first two offenses constituting the underlying felonies here—first-degree attempted
robbery and fifth-degree attempted criminal sale of a controlled substance—the
incident date is represented to be the same as the arrest date. For Defendant’s
conviction for first-degree attempted robbery, the exhibit shows, in the light most
favorable to the State, that Defendant committed the offense on the incident date of
18 December 1995 and pleaded guilty to the offense on 16 October 1997. For
Defendant’s conviction for fifth-degree attempted criminal sale of a controlled
6 Defendant contends that we do not know what the “incident date” means; however,
in the light most favorable to the State, we can reasonably infer that the “incident date” refers
to the date the offense was committed.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
substance, the exhibit shows, in the light most favorable to the State, that Defendant
committed the offense on the incident date of 7 April 2000 and pleaded guilty to the
offense on 5 July 2001. Finally, for Defendant’s conviction for second-degree rape,
the exhibit shows, in the light most favorable to the State, that Defendant committed
the offense on 3 September 20057 and pleaded guilty to the offense on 18 September
2006. State’s Exhibit 7-H also contains Defendant’s date of birth, 24 May 1975.
¶ 44 Using this information from State’s Exhibit 7-H, in the light most favorable to
the State, we hold that each underlying felony conviction used to conclude that
Defendant attained habitual felon status was committed after Defendant pleaded
guilty to the previous offense used. Additionally, we hold that all of the underlying
offenses occurred after Defendant had attained the age of eighteen, with the earliest
occurring when Defendant was 20 years old.
¶ 45 As a result, when viewed in the light most favorable to the State, there was
sufficient evidence of the dates of offenses of these felonies to determine that there
was no overlap between the date of the commission of the felonies and the date of the
preceding felony’s conviction. Also, it appears Defendant had attained the age of 18
years old for all of the underlying offenses. As a result, the evidence underlying the
first and second prior felonies was sufficient to survive Defendant’s motion to dismiss.
7 Defendant acknowledges that the State presented sufficient evidence regarding the
dates concerning the second-degree rape charge.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
D. Right to Allocution
¶ 46 Defendant contends that the trial court improperly deprived him of the right
to allocution when the following exchange occurred at sentencing:
THE COURT: All right. Stand up, [Defendant]. Anything
you want to say?
DEFENDANT: Yes. I need -- to say what I want to say, I
need to get my paperwork.
THE COURT: Well, we’re not going to do that. Anything
you want to say to me right now before you’re sentenced?
DEFENDANT: Yes. I asked to get it before I even came
out here, and they rushed me and said, “Come on now.”
Please. I mean, this is my chance to speak to you.
THE COURT: Anything you want to say to me before you’re
sentenced?
DEFENDANT: Yes, I do. I have it right there in --
THE COURT: All right. Your papers aren’t relevant right
now. All right. Moving to sentencing, Madam Clerk, it is
a class C on the habitual felon status, record level two. The
sentence will be in the presumptive range. He’s sentenced
to a minimum term of 83 months, maximum terms of 112
months active time. He’s to receive credit for all pretrial
confinement. All right. Good luck to you, [Defendant] . . .
.
[DEFENSE COUNSEL]: Sorry, Judge. I didn’t mean to
interrupt. I would like to enter notice of appeal in open
court.
THE COURT: All right. Enter notice of appeal.
DEFENDANT: I don’t just -- I don’t get to say anything now
to you, Judge?
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
THE COURT: No.
¶ 47 N.C.G.S. § 15A-1334(b) reads “[t]he defendant at the hearing may make a
statement in his own behalf.” N.C.G.S. § 15A-1334(b) (2021). In a past case involving
the right to allocution, we have stated:
[A]llocution, or a defendant’s right to make a statement in
his own behalf before the pronouncement of a sentence,
was a right granted a defendant at common law. The
United States Supreme Court has also emphasized the
significance of this right, observing that “the most
persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence,
speak for himself.”
Our appellate cases have held that where defense counsel
speaks on the defendant’s behalf and the record does not
indicate that the defendant asked to be heard, the statute
does not require the court to address the defendant and
personally invite him or her to make a statement. [N.C.
G.S.] § 15A-1334, while permitting a defendant to speak at
the sentencing hearing, does not require the trial court to
personally address the defendant and ask him if he wishes
to make a statement in his own behalf.
However, a trial court’s denial of a defendant's request to
make a statement prior to being sentenced is reversible
error that requires the reviewing court to vacate the
defendant’s sentence and remand for a new sentencing
hearing.
State v. Jones, 253 N.C. App. 789, 797, 802 S.E.2d 518, 523-24 (2017) (quoting Green
v. United States, 365 U.S. 301, 304, 5 L. Ed. 2d 670, 673 (1961)) (marks and citations
omitted); see also State v. Miller, 137 N.C. App. 450, 461, 528 S.E.2d 626, 632 (2000)
(marks and citations omitted) (“[N.C.G.S.] § 15A-1334(b) expressly gives a non-capital
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
defendant the right to make a statement in his own behalf at his sentencing hearing
if the defendant requests to do so prior to the pronouncement of sentence. Because
the trial court failed to do so, we must remand these cases for a new sentencing
hearing.”).
¶ 48 Here, we conclude Defendant’s right to allocution was violated. Once the trial
court asked Defendant if he had anything to say, Defendant made an unambiguous
request to make a statement. Defendant proceeded to request that he receive his
papers, which the trial court refused to allow.8 In the exchange with the trial court,
Defendant had three opportunities to make a statement without the papers; however,
each opportunity he spent discussing his desire for his papers.
¶ 49 On this Record, we hold the trial court committed reversible error by denying
Defendant his statutory right to allocution. N.C.G.S. § 15A-1334(b) states “[t]he
defendant at the hearing may make a statement in his own behalf.” N.C.G.S. § 15A-
1334(b) (2021). Further, our caselaw unambiguously holds “a trial court’s denial of a
defendant’s request to make a statement prior to being sentenced is reversible error
that requires the reviewing court to vacate the defendant’s sentence and remand for
a new sentencing hearing.” Jones, 253 N.C. App. at 797, 802 S.E.2d at 524. We have
8 We are unaware of any statute or caselaw that obligates the trial court to permit a
defendant to receive papers to aid in a statement to the trial court, and we make no ruling
regarding this request.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
applied the rule to broader circumstances and “have held that a trial court effectively
denied a defendant the right to be heard prior to sentencing even when the court did
not explicitly forbid the defendant to speak.” Id. at 798, 802 S.E.2d at 524. In Jones,
we held:
Our review of the transcript shows that the trial court was
informed that [the] defendant wished to address the court
and that the trial court acknowledged this request.
However, during [the] defense counsel’s presentation, the
court indicated that it had already decided how to sentence
[the] defendant. After hearing from a detective who had
investigated the case, the trial court became impatient,
asking if those present expected the court to give [the]
defendant ‘a merit badge’ and accusing them of portraying
[the] defendant as ‘a choir boy.’ Immediately thereafter,
the trial court pronounced judgment. We conclude that, on
the facts of this case, [the] defendant was denied the
opportunity to be heard prior to entry of judgment.
Id. at 802, 802 S.E.2d at 526. Similarly, in State v. Griffin, we held:
[the] defense counsel could have reasonably interpreted the
trial judge’s statement [that it ‘would be a big mistake’ to
permit the defendant to speak at sentencing] to mean that
the defendant would receive a longer sentence if he
testified. Accordingly, we find that the defendant’s right to
testify under [N.C.G.S.] § 15A-1334(b) was effectively
chilled by the trial judge’s comment.
State v. Griffin, 109 N.C. App. 131, 133, 425 S.E.2d 722, 723 (1993).
¶ 50 Like in Jones and Griffin, we believe this case presents a circumstance
justifying remand for a new sentencing hearing, despite the facts here being less
egregious. Due to the clear invocation of Defendant’s right to allocution, the trial
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
court should have indicated that Defendant was not going to be permitted to receive
his papers and clarify whether Defendant was still interested in making a statement
without his papers before it proceeded to sentencing. Instead, the trial court
summarily indicated “we’re not going to do that. Anything you want to say to me
right now before you’re sentenced?”9
¶ 51 We acknowledge that there is caselaw indicating that “[N.C.G.S.] § 15A-1334,
while permitting a defendant to speak at the sentencing hearing, does not require the
trial court to personally address the defendant and ask him if he wishes to make a
statement in his own behalf.” State v. McRae, 70 N.C. App. 779, 781, 320 S.E.2d 914,
915 (1984), disc. rev. denied, 313 N.C. 175, 526 S.E.2d 35 (1985). To some extent, this
suggests that if a defendant fails to take advantage of his opportunity to exercise his
right to allocution, he waives it. See also State v. Rankins, 133 N.C. App. 607, 613,
515 S.E.2d 748, 752 (1999) (“The purpose of allocution is to afford [a] defendant an
opportunity to state any further information which the trial court might consider
when determining the sentence to be imposed.”). However, there is no binding
caselaw that holds a defendant waives his right to allocution where there is a clear
9 The Record does not indicate how much time passed between the trial court’s
question and pronouncement of Defendant’s sentence.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
invocation of the right to allocution and an attempt to make a statement.10
¶ 52 We find Griffin and Jones to present similar factual scenarios. Ultimately, like
in Griffin and Jones, we conclude the trial court effectively denied Defendant the
opportunity to allocute by foreclosing his opportunity without clearly indicating
Defendant would only be allowed to make a statement without his papers and
inquiring into Defendant’s interest in doing so. We vacate Defendant’s sentence and
10 The closest our caselaw comes is in State v. Moseley and in State v. Pearson, an
unpublished case. In Moseley, the trial court granted the defendant’s motion for allocution;
but, “when given the opportunity at the appropriate stage of the proceedings, [the] defendant
failed to remind the trial court of his wish to allocute.” State v. Moseley, 338 N.C. 1, 53-54,
449 S.E.2d 412, 444 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d 738 (1995). Our
Supreme Court reasoned that “[s]ince [the] defendant does not have a constitutional,
statutory, or common law right to allocution [at the conclusion of a capital sentencing
proceeding] and since [the] defendant failed to remind the court of his desire to speak to the
jury at the appropriate stage of the case, we conclude that there was no error.” Id. at 54, 449
S.E.2d at 444. This case is distinct from Moseley in that Defendant does have a statutory
right to allocution upon invoking it in a non-capital case and Defendant did not fail to assert
his right at the appropriate time.
In Pearson, we held:
[The] defendant was given the opportunity to make a statement.
However, rather than address issues related to sentencing, [the]
defendant complained about the performance of his attorney.
Thus, we conclude that the trial court did not abuse its discretion
by refusing to allow [the] defendant to continue his statement.
State v. Pearson, No. COA04-585, 168 N.C. App. 409, 2005 WL 221503, at *3 (2005)
(unpublished). In addition to being unpublished, and therefore non-binding, Pearson is also
distinct from the facts sub judice. Defendant did not use his opportunity to complain about
something unrelated to his right to allocution; instead, Defendant attempted to gain access
to papers that he intended to use to exercise his right to allocution. Indeed, each time
Defendant spoke, he indicated his intent to exercise his right to allocution.
In light of the factual differences in Moseley and Pearson, in addition to Pearson being
unpublished, we do not find them controlling or persuasive on this issue.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
remand for a new sentencing hearing. See Jones, 253 N.C. App. at 797, 802 S.E.2d
at 524.
E. Attorney Fees
¶ 53 Defendant argues the trial court improperly entered a civil judgment for
attorney fees without notice or opportunity to be heard regarding the fees. However,
Defendant did not properly appeal this issue11 and instead filed a petition for writ of
certiorari to seek our review.
¶ 54 We may issue a writ of certiorari “in appropriate circumstances.” N.C. R. App.
P. 21(a)(1) (2022). A writ of certiorari is discretionary, “to be issued only for good and
sufficient cause shown.” State v. Rouson, 226 N.C. App. 562, 564, 741 S.E.2d 470, 471
(citation omitted), disc. rev. denied, 367 N.C. 220, 747 S.E.2d 538 (2013). “A petition
for the writ must show merit or that error was probably committed below.” Id. at
563-64, 741 S.E.2d at 471.
¶ 55 Here, because there are no civil judgments entered against him for attorney
fees in the Record, we deny Defendant’s petition for writ of certiorari and do not reach
the underlying issue. “[A] judgment is entered when it is reduced to writing, signed
by the judge, and filed with the clerk of court[.]” N.C.G.S. § 1A-1, Rule 58 (2017)
11 On 18 September 2019, Defendant was sentenced and entered oral notice of appeal,
with written notice of appeal being entered on 20 September 2019. However, subsequently,
the order for attorney fees was entered on 25 October 2019. As a result, Defendant’s original
notice of appeal did not include the order as it was entered prior to the attorney fees order.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
(emphasis added); see also In re Thompson, 232 N.C. App. 224, 228, 754 S.E.2d 168,
171 (2014) (“Because the order was not filed, it was not entered.”). Although there is
a civil judgment order for attorney fees in the Record, there is no indication it has
been filed with the Wake County Clerk of Court. As a result, “[w]e lack subject matter
jurisdiction to review an appeal from an order for attorney[] fees not entered as a civil
judgment. [A] [d]efendant will not be prejudiced unless and until a civil judgment is
entered.” State v. Hutchens, 272 N.C. App. 156, 160, 846 S.E.2d 306, 310 (2020).
¶ 56 We deny Defendant’s petition for writ of certiorari as it is without merit due to
the lack of evidence that a judgment was entered against Defendant that he may
appeal from. We dismiss the portion of Defendant’s appeal regarding the civil
judgment for attorney fees.
CONCLUSION
¶ 57 Defendant’s indictment sufficiently alleged the essential elements of failure to
notify the last registering sheriff of a change of address under N.C.G.S. § 14-
208.11(a)(2), bestowing the trial court jurisdiction over the case. Additionally, the
trial court did not plainly err in its jury instructions and properly denied Defendant’s
motions to dismiss. However, the trial court denied Defendant his statutory right to
allocution, requiring us to vacate Defendant’s sentence and remand for a new
sentencing hearing. Finally, we deny Defendant’s petition for writ of certiorari and
dismiss his argument regarding attorney fees.
STATE V. WRIGHT
2022-NCCOA-418
Opinion of the Court
NO ERROR IN PART; NO PLAIN ERROR IN PART; VACATED AND
REMANDED FOR NEW SENTENCING HEARING IN PART; DISMISSED IN
PART.
Judges INMAN and WOOD concur.