in the Supreme Court on 30 August 2017.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
786 S.E.2d 812 (2016), vacating and remanding a judgment
entered on 12 February 2015 by Judge Michael D. Duncan in
Superior Court, Catawba County.
H. Stein, Attorney General, by Kristin J. Uicker, Assistant
Attorney General, for the State-appellant.
Gerding, Appellate Defender, by Daniel L. Spiegel, Assistant
Appellate Defender, for defendant-appellee.
defendant Sandra Meshell Brice was convicted of committing
the felony of habitual misdemeanor larceny, a unanimous panel
of the Court of Appeals vacated defendant's conviction
and remanded this case to the trial court for the entry of a
new judgment and resentencing based upon a misdemeanor
larceny conviction on the grounds that the indictment
returned against defendant in this case was fatally
defective. We reverse the Court of Appeals' decision.
July 2013, the Catawba County grand jury returned a
single-count bill of indictment purporting to charge
defendant with habitual misdemeanor larceny. The charge
against defendant came on for trial before the trial court
and a jury during the 9 February 2015 criminal session of the
Superior Court, Catawba County. After the jury was empaneled
and prior to the making of the parties' opening
statements, defendant admitted, outside the presence of the
jury and after an appropriate colloquy with the trial court,
to having been convicted of the four prior larcenies
delineated in the indictment. On 12 February 2015, the jury
returned a verdict convicting defendant of habitual
misdemeanor larceny. Based upon the jury's verdict, the
trial court entered a judgment sentencing defendant to an
active term of ten to twenty-one months imprisonment,
suspended defendant's active sentence, and placed
defendant on supervised probation for a period of twenty-four
months on the condition that defendant comply with the usual
terms and conditions of probation, serve a seventy-five-day
term of imprisonment, and pay a $300.00 fine, attorney's
fees, and the costs. Defendant noted an appeal to the Court
of Appeals from the trial court's judgment.
sole challenge to the trial court's judgment before the
Court of Appeals, defendant argued that the indictment's
failure to comply with the requirements spelled out in N.C.
G.S. § 15A-928 deprived the trial court of
"jurisdiction to enter judgment and sentence against
[defendant] for felony habitual misdemeanor larceny, "
so that her "conviction for habitual misdemeanor larceny
must be vacated and remanded for entry of judgment on
State, on the other hand, noted defendant's failure to
challenge the validity of the indictment that had been
returned for the purpose of charging her with habitual
misdemeanor larceny before the trial court and pointed out
that defendant had not contended that "the indictment
fails to describe each element of the crime with sufficient
specificity" or that she had been "prejudiced in
preparing her defense as a result of the indictment."
Thus, in the State's view, any "variation"
between "the strict requirements of N.C. [G.S.] §
15A-928" and the indictment returned against defendant
in this case "is not reversible" error. As a
result, the State urged the Court of Appeals to leave the
trial court's judgment undisturbed.
vacating the trial court's judgment and remanding this
case to the Superior Court, Catawba County, for resentencing
based upon a conviction for misdemeanor, rather than habitual
misdemeanor, larceny, the Court of Appeals concluded that
"an indictment for habitual misdemeanor larceny is
subject to the provisions of N.C. [G.S.] § 15A-928"
and that, "[o]n its face, the indictment here failed to
comply with" that statutory provision. State v.
Brice, ___ N.C. App.___, ___, 786 S.E.2d 812, 815
(2016). The Court of Appeals rejected the State's
argument in reliance upon the decision in State v.
Jernigan, 118 N.C.App. 240, 455 S.E.2d 163 (1995), in
which the Court of Appeals had held that noncompliance with
the arraignment procedures set out in N.C. G.S. §
15A-928(c) constituted harmless error given that the
defendant, who had stipulated to his prior convictions prior
to trial, "was fully aware of the charges against him .
. ., understood his rights and the effect of the stipulation,
and . . . was in no way prejudiced by the failure of the
court to formally arraign him and advise him of his
rights." Brice, ___, N.C. App. at ___, 786
S.E.2d at 815 (quoting Jernigan, 118 N.C.App. at
245, 455 S.E.2d at 167). In reaching this result, the Court
of Appeals stated that, while "a formal arraignment
under [ N.C. G.S. §] 15A-928(c) is not a matter of
jurisdictional consequence, " the indictment
requirements set out in N.C. G.S. § 15A-928(b) had been
held to be jurisdictional in State v. Williams, 153
N.C.App. 192, 568 S.E.2d 890 (2002), disc. rev.
improvidently allowed, 357 N.C. 45, 577 S.E.2d 618
(2003) (per curiam). Id. at ___, 786 S.E.2d at 815.
As a result, since the failure of the indictment returned
against defendant in this case to comply with the
requirements of N.C. G.S. § 15A-928 deprived the trial
court of jurisdiction to enter judgment against defendant
based upon a conviction for habitual misdemeanor larceny, the
Court of Appeals vacated defendant's conviction for that
offense and remanded this case to the trial court for the
entry of judgment and resentencing based upon a conviction
for misdemeanor, rather than habitual misdemeanor, larceny.
Id. at ___, 786 S.E.2d at 815.
State sought discretionary review of the Court of
Appeals' decision by this Court on the grounds that
"bills of indictment [should not be quashed] for mere
informality or minor defects which do not affect the merits
of the case, " quoting State v. Brady, 237 N.C.
675, 679, 75 S.E.2d 791, 793 (1953), and that this Court
"do[es] not favor the practice of quashing an indictment
or arresting a judgment for informalities which could not
possibly have been prejudicial to the rights of defendant in
the trial court, " quoting State v. Russell,
282 N.C. 240, 248, 192 S.E.2d 294, 299 (1972). According to
the State, the Court of Appeals implicitly held in State
v. Stephens, 188 N.C.App. 286, 293, 655 S.E.2d 435,
439-40, disc. rev. denied, 362 N.C. 370, 662 S.E.2d
389 (2008), that "an indictment that alleges all the
felony offense's essential elements, including the prior
conviction, properly alleges the felony offense"
"despite not complying with [the] form
requirements" set out in N.C. G.S. § 15A-928(b). In
the State's view, the Court of Appeals erred by relying
upon Williams, which had been "wrongly
decided." Finally, the State asserted that, assuming
that noncompliance with N.C. G.S. § 15A-928 constituted
a jurisdictional defect, the Court of Appeals had erred by
failing to simply arrest judgment given that the trial court
lacked jurisdiction to convict defendant of, and sentence
defendant for, a misdemeanor in this case.
on the other hand, argued that compliance with N.C. G.S.
§ 15A-928 "is no mere formality, but rather is the
formal mechanism by which the purpose of [ N.C. G.S.] §
15A-928 is achieved." "If a defendant is not
apprised of the opportunity to admit the prior convictions
outside of the presence of the jury, " "the
defendant will be unable to avoid the certain prejudice that
would result from evidence of prior convictions being
presented to the jury." In defendant's view, the
State is requesting the Court to disturb settled North
Carolina law, in accordance with which "the statute must
be strictly followed in order to apprise [the] defendant of
the offense for which he is charged and to enable him to
prepare an effective defense, " quoting State v.
Jackson, 306 N.C. 642, 652 n.2, 295 S.E.2d 383, 389 n.2
(1982). Finally, defendant asserted that the remedy that the
Court of Appeals afforded to defendant in this case has been
"applied . . . time and time again" and
"should remain undisturbed." This Court granted the
State's discretionary review petition on 8 December 2016.
seeking to persuade us to overturn the Court of Appeals'
decision, the State points out that this Court has held that
"[a]n indictment is sufficient if it charges all
essential elements of the offense with sufficient
particularity to apprise the defendant of the specific
accusations against him and (1) will enable him to prepare
his defense and (2) will protect him against another
prosecution for that same offense, " quoting State
v. Bowden, 272 N.C. 481, 483, 158 S.E.2d 493, 495
(1968), and, citing State v. House, 295 N.C. 189,
200, 244 S.E.2d 654, 660 (1978), that noncompliance with
provisions couched in mandatory terms is not necessarily
fatal to the validity of an indictment. The State contends
that a decision to invariably quash an indictment under
circumstances such as those present here would attribute
"to the Legislature an intent to paramount [sic] mere
form over substance, " quoting House, 295 N.C.
at 203, 244 S.E.2d at 662. As a result, the State argues
that, given that "we are no longer bound by the
'ancient strict pleading requirements of the common
law' " and that "contemporary criminal
pleadings requirements have been 'designed to remove from
our law unnecessary technicalities which tend to obstruct
justice, ' " quoting State v. Williams, 368
N.C. 620, 623, 781 S.E.2d 268, 271 (2016) (quoting State
v. Freeman, 314 N.C. 432, 436, 333 S.E.2d 743,
746 (1985)), "[t]his Court should hold that a pleading
that does not conform to [ N.C. G.S. §] 15A-928's
form requirements is not jurisdictionally defective for that
on the other hand, contends that the failure of the
indictment returned against him in this case to separate the
allegations setting out the substantive offense from the
allegations delineating defendant's prior convictions
renders that indictment fatally defective and insufficient to
confer jurisdiction upon the trial court to enter judgment
against defendant based upon an habitual misdemeanor larceny
conviction. The fact that N.C. G.S. § 15A-928 utilizes
mandatory terms such as "must" and "may
not" in describing the manner in which allegations
concerning a defendant's prior convictions should be set
out indicates that these requirements should be treated as
jurisdictional in nature, particularly given that the
relevant statutory provisions do not explicitly state that
noncompliance with the provisions of N.C. G.S. § 15A-928
is not a jurisdictional defect and that the General Assembly
has failed to amend the ...