State v. CulbertsonÂ, 255 N.C. App. 635

On Jan. 21, 2015 Concord officers stopped Sergio Culbertson near his truck, smelled marijuana, obtained consent to search, and a struggle ensued when Culbertson reached into the vehicle; officers tased and restrained him.
A search uncovered a diaper bag with >300 grams of packaged marijuana and a bag under the driver’s seat containing several smaller bags of heroin.
Officers Hanson and Vandevoorde sustained injuries (Hanson: ACL/meniscus requiring surgery; Vandevoorde: scrapes/lacerations).
Culbertson pleaded guilty (Aug. 29, 2016) to multiple counts including assault on officers, trafficking, PWISD marijuana and heroin within 1000 feet of a park, and related charges; sentencing errors led to a corrected sentencing hearing (Sept. 6, 2016) without withdrawing pleas.
On appeal the State moved to dismiss; Culbertson petitioned for certiorari. The State conceded two indictments (PWISD marijuana and PWISD heroin near a park) failed to allege the essential element that defendant was over 21.

Issue	State's Argument	Culbertson's Argument	Held
Whether Culbertson has a statutory right to appeal his guilty-plea sentences	The State moved to dismiss because §15A-1444 does not grant an appeal as of right for these pleas	Culbertson sought review via appeal and by petition for certiorari	Appeal as of right dismissed; certiorari considered under Rule 2 only in part
Whether the PWISD (within 1000 ft. of a park) indictments were facially valid	State conceded the indictments omitted age (>21) and thus were facially defective	Culbertson argued the omissions deprived the trial court of jurisdiction and required vacatur	Court held the PWISD marijuana and PWISD heroin counts were fatally defective and vacated those convictions
Whether Rule 21 certiorari was available to review the defective indictments	State argued Rule 21 grounds did not apply; ordinarily certiorari under Rule 21 is limited	Culbertson sought certiorari to review jurisdictional defect in indictments	Court found Rule 21 alone inapplicable but exercised discretionary authority under Rule 2 to grant certiorari and address jurisdictional defect
Effect of vacating the two defective convictions on the plea agreement	State did not contest that vacatur affects the consolidated plea	Culbertson argued the defective counts require setting aside the plea arrangement	Court vacated the two counts and—because the pleas were entered pursuant to a consolidated plea arrangement—set aside the entire plea and remanded for further proceedings

State v. Wallace, 351 N.C. 481 (recognizing facially invalid indictments deprive trial court of jurisdiction and may be challenged at any time)
State v. Braxton, 352 N.C. 158 (facial defects in indictments can be considered even if not raised at trial)
State v. Biddix, 780 S.E.2d 863 (N.C. Ct. App.) (Rule 21 does not provide a path for certiorari review of guilty-plea issues absent exceptional circumstances)
State v. Campbell, 799 S.E.2d 600 (N.C.) (Rule 2 is discretionary and reserved for rare cases where substantial rights are affected)
State v. Pennell, 758 S.E.2d 383 (N.C.) (challenge to facial validity of indictment should be raised by MAR or habeas where appropriate)
State v. De La Sancha Cobos, 711 S.E.2d 464 (N.C. Ct. App.) (statutory offenses in indictments must allege all essential elements)