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State v. Nixon

Court of Appeals of North Carolina

February 5, 2019

STATE OF NORTH CAROLINA
v.
CORNELIUS EDWARD NIXON, III

          Heard in the Court of Appeals 14 January 2019.

          Appeal by Defendant from an Order entered 4 December 2017 by Judge Jay D. Hockenbury in New Hanover County, No. 04 CRS 54032 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C. Katz, for defendant-appellant.

          HAMPSON, JUDGE.

         I. Factual and Procedural Background

         On 7 November 2017, Cornelius Nixon (Defendant) filed a Motion for Appropriate Relief (MAR), seeking relief from criminal convictions. The Record based upon the proceedings on the MAR below tends to show the following relevant facts:

         On 26 July 2004, a New Hanover County grand jury indicted Defendant for committing a Crime Against Nature. Subsequently, and at some point on or before 2 March 2006, a Bill of Information issued which charged Defendant with the offenses of Crime Against Nature, Indecent Liberties with a Child, and Contributing to the Delinquency of a Juvenile.[1] The Bill of Information included in the Record before us, although signed by Defendant and his trial counsel, contains no express language waiving indictment and no waiver of indictment is attached to the Bill of Information.

         On 2 March 2006, in accordance with a plea arrangement, Defendant pleaded guilty to the charges of Indecent Liberties with a Child and Contributing to the Delinquency of a Minor, and the State agreed to dismiss the charge of Crime Against Nature. The presiding Superior Court Judge entered a consolidated Judgment on two charges, sentencing Defendant to a minimum of 19 months and a maximum of 23 months in the custody of the North Carolina Department of Adult Correction. The Judgment, however, erroneously included the charge of Crime Against Nature rather than the charge of Contributing to the Delinquency of a Minor.

         On 7 November 2017, Defendant filed his MAR seeking to have the Judgment against him arrested or vacated and alleging two claims for relief: (1) the trial court lacked subject matter jurisdiction over all the charges because no waiver of indictment was attached to or executed upon the Bill of Information such that Defendant had not validly waived indictment; and (2) the Judgment erroneously included the charge of Crime Against Nature, and should be corrected.

         On 4 December 2017, the trial court entered its Order on Defendant's MAR granting Defendant relief in part. The trial court vacated the erroneous Crime Against Nature conviction, but denied Defendant relief on his jurisdictional claim. Specifically, the trial court found Defendant had signed the Bill of Information, although the trial court recognized the document lacked specific language reciting Defendant's waiver of an indictment. The trial court concluded that, "[b]y signing the bill of information, Defendant accepted it in lieu of an indictment and acknowledged that he had received notice of the charges against him[, ]" which "operate[d] as a waiver of Defendant's right to an indictment[.]"

         On 27 April 2018, this Court granted Defendant's Petition for Writ of Certiorari for the purpose of reviewing the 4 December 2017 Order. See N.C. Gen. Stat. § 15A-1422(c)(3) (2017).

         II. Issue

         The sole issue is whether the trial court erred in denying Defendant's MAR alleging the trial court lacked subject matter jurisdiction to enter the original Judgment where Defendant was charged by way of a Bill of Information which did not include or attach an express waiver of indictment for the ...


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