Heard in the Supreme Court February 19, 2014.
Iredell County. Nos. 09CRS53255, 09CRS53992, 10CRS57417. Christopher W. Bragg, Judge.
Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, and Joseph L. Hyde, Assistant Attorney General, for the State-appellant.
Staples S. Hughes, Appellate Defender, by Jason Christopher Yoder, Assistant Appellate Defender, for defendant-appellee.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App.
__, 746 S.E.2d 431 (2013), affirming in part, vacating and remanding in part,
and arresting in part judgments entered on 5 June 2012 by Judge Christopher W.
Bragg in Superior Court, Iredell County.
We consider whether, on direct appeal from the activation of a suspended sentence, a defendant may challenge the jurisdictional validity of the indictment underlying his original conviction. Because a challenge to the validity of the original judgment constitutes an impermissible collateral attack, we hold that defendant's appeal was not proper. Accordingly, we reverse the decision of the Court of Appeals with respect to this issue.
Defendant William Herbert Pennell pleaded guilty on 2 December 2010 to two counts of felony breaking or entering, two counts of felony larceny after breaking or entering, and one count of possession of cocaine. Defendant received four consecutive sentences of eight to ten months for each of the property offenses and one sentence of six to eight months for the drug possession conviction. Under a plea arrangement, defendant's sentences were suspended and he was placed on thirty-six months of supervised probation.
On 16 June 2011, defendant's probation officer filed five probation violation reports. After a hearing, the trial court modified defendant's sentences by extending the length of his probation by twenty-four months. Defendant's probation officer filed five additional violation reports on 18 August 2011. On 13 October 2011, the trial court revoked defendant's probation and activated his sentence on one count of larceny after breaking or entering in case number 10 CRS 57417. The trial court modified defendant's other sentences to add six months of intensive supervised probation following his release from his activated sentence.
On 3 February 2012, defendant's probation officer filed four additional probation violation reports. After a hearing, the trial court entered judgment on 5 June 2012 revoking defendant's probation and activating his sentences for the remaining offenses for which he was on probation.
Defendant appealed the 5 June 2012 judgments to the Court of Appeals. In his appeal defendant first argued that the trial court erred in activating his sentence for larceny after breaking or entering in case number 10 CRS 57417 because his sentence for this count of larceny had already been activated and served pursuant to the trial court's revocation of defendant's probation on 13 October 2011. The Court of Appeals agreed. State v. Pennell, __ N.C.App. __, __, 746 S.E.2d 431, 444 (2013). The Court of Appeals concluded that the trial court intended to revoke defendant's probation for the count of breaking or entering in case number 10 CRS 57417 rather than the count of larceny after breaking or entering in the case having the same number, and remanded the judgment and commitment to the trial court to correct the clerical mistake in its judgment. Id. at __, 746 S.E.2d at 444.
Defendant's second argument before the Court of Appeals was that the trial court lacked subject matter jurisdiction to revoke his probation on the count of felony larceny in case number 09 CRS 53255 because the original indictment for the offense was fatally defective. Relying predominantly on this Court's holding in State v. Ray, 212 N.C. 748, 194 S.E. 472 (1938), the Court of Appeals held that defendant's appeal was proper, determined that the original indictment was defective, and arrested revocation of defendant's probation on that count. Pennell, __ N.C.App. at __, 746 ...