in the Court of Appeals 23 August 2017.
by defendant from judgment entered 6 September 2016 by Judge
Julia Lynn Gullett in Cabarrus County Superior Court Nos. 15
CRS 50338-40; 15 CRS 50451.
Attorney General Joshua H. Stein, by Assistant Attorney
General Susannah P. Holloway, for the State.
P. Lattimore for defendant-appellant.
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'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.
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.
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.
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."
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.
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
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.
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.
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. 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
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.