in the Court of Appeals 14 January 2019.
by Defendant from an Order entered 4 December 2017 by Judge
Jay D. Hockenbury in New Hanover County, No. 04 CRS 54032
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.
Factual and Procedural Background
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:
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. 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.
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.
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.
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[.]"
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. §
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