in the Court of Appeals 9 May 2019.
by Defendant from order entered 2 May 2018 by Judge R. Allen
Baddour, Jr. in Orange County, No. 14 CRS 052399 Superior
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.
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.
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.
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
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
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 ...