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State v. Futrelle

Court of Appeals of North Carolina

July 2, 2019

STATE OF NORTH CAROLINA
v.
STEPHEN TREY FUTRELLE, Defendant.

          Heard in the Court of Appeals 9 May 2019.

          Appeal by Defendant from order entered 2 May 2018 by Judge R. Allen Baddour, Jr. in Orange County, No. 14 CRS 052399 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 Nicholas C. Woomer-Deters, for defendant-appellant.

          MURPHY, JUDGE

         Defendant, Stephen Trey Futrelle, filed a Motion for Appropriate Relief ("MAR") in Superior Court, alleging the trial court lacked subject matter jurisdiction to enter judgment based upon his plea of guilty to felony possession of a Schedule I controlled substance and misdemeanor possession of more than one-half ounce, but less than one and one-half ounces, of marijuana. Defendant argues the bill of information charging him with these two offenses was invalid because the waiver of indictment contained therein was not signed by his attorney as required by N.C. G.S. § 15A-642(c). We agree and vacate the trial court's order denying Defendant's MAR.

         BACKGROUND

         Defendant was arrested on 23 August 2014 in Orange County for felony possession of MDMA, a Schedule I controlled substance, and misdemeanor possession of more than one-half ounce, but less than one and one-half ounces, of marijuana. On 7 January 2015, Defendant was charged with these two offenses by bill of information. The bill of information contained a waiver of indictment, which was signed by the prosecutor for the State and Defendant. Defendant's attorney did not sign the waiver of indictment included in the bill of information.

         Defendant later pled guilty to the two offenses charged, and the trial court accepted Defendant's plea. The trial court entered a conditional discharge on 7 January 2015 and placed Defendant on supervised probation for 12 months. The conditions of Defendant's probation were twice modified, in May and October 2015. On 31 March 2017, judgment was entered on the two offenses, and the trial court imposed a suspended sentence, placing Defendant on supervised probation for 12 months. Defendant completed probation on 31 March 2018.

         On 13 April 2018, Defendant filed an MAR claiming the Superior Court lacked jurisdiction to enter judgment on the two offenses because the bill of information was invalid due to the absence of his counsel's signature. The trial court denied Defendant's MAR, making the following conclusions of law:

1. The purpose of NCGS 15A-642 is to ensure that defendants not indicted by the grand jury only appear by bill of information and waiver of the grand jury indictment with the advice and consent of counsel.
2. Defendant signed the bill of information and though counsel did not, it is clear that the case proceeded with the advice and consent of counsel, as the Transcript of Plea and Conditional Discharge were all executed on the same day (January 7, 2015).
3.These documents, when read together, clearly indicate that the information was executed ...

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