State v. Pennell, 228 N.C. App. 708

Background

Defendant William H. Pennell IV pleaded guilty to five charges (two counts in 09 CRS 53255, two counts in 10 CRS 57417, and one in 09 CRS 53992) and received suspended sentences with 36 months supervised probation.
Probation violation reports (2011–2012) alleged cutting off an electronic monitor, curfew violations, failing to complete community service, a resisting charge, and convictions for new felony breaking/entering offenses.
The trial court revoked probation and activated several sentences; Defendant appealed only certain revocations.
Defendant argued the superior court lacked jurisdiction to revoke probation for (a) larceny after breaking and entering in 09 CRS 53255 because the indictment was fatally defective and thus void, and (b) the revocation in 10 CRS 57417 was entered for the wrong offense (clerical error: larceny vs. breaking and entering).
The Court of Appeals held a defendant may raise jurisdictional challenges (directly or collaterally) on appeal from probation revocation, vacated the actions based on the defective larceny indictment in 09 CRS 53255, and remanded 10 CRS 57417 to correct the clerical error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court lacked jurisdiction to revoke probation for 09 CRS 53255 (larceny after breaking/entering) because the indictment was fatally defective	State: revocation and activation were proper under §15A-1347	Pennell: indictment used the vague term “merchandise,” so it was fatally defective and the conviction (and suspended sentence) was void, depriving the court of jurisdiction to revoke	Held: indictment fatally defective; conviction and sentence nullity; judgment arrested for 09 CRS 53255; actions based on that count vacated
Whether Caudle and related precedents bar raising challenges to the underlying conviction on appeal from probation revocation	State: appeals from revocation are limited to (1) sufficiency of evidence of violation and (2) validity of condition breached (Caudle)	Pennell: where a judgment is void for lack of jurisdiction, collateral attack is permitted; jurisdictional claims may be raised on appeal	Held: jurisdictional challenges (direct or collateral) are allowed on appeal from revocation; Miller/Caudle do not preclude void-judgment attacks
Whether the trial court erred by revoking probation in 10 CRS 57417 for “larceny after breaking and entering” instead of for “breaking or entering”	State: revocation valid	Pennell: trial court intended to revoke the breaking/entering count; entry shows clerical error to larceny count; also, sentence for that charge already served	Held: clerical error — remand to correct judgment to reflect revocation of the breaking/entering count in 10 CRS 57417; vacate erroneous entry for larceny where appropriate
Whether other activated sentences should be disturbed	State: revocations proper as to the other convictions	Pennell: did not challenge other revocations	Held: revocations and activations not challenged remain affirmed

Key Cases Cited

State v. Caudle, 276 N.C. 550 (N.C. 1970) (limits on appeals after probation suspension but recognizes exceptions for lack of evidence of breach or invalid conditions)
State v. Miller, 225 N.C. 213 (N.C. 1945) (explains waiver by failing to appeal when sentence suspended and scope of later challenges)
In re T.R.P., 360 N.C. 588 (N.C. 2006) (legislature may circumscribe court jurisdiction; statutory limits on court authority)
State v. Bryant, 361 N.C. 100 (N.C. 2007) (trial court lacks jurisdiction to revoke after probationary period without required statutory findings)
State v. Tripp, 168 N.C. 150 (N.C. 1914) (addressing jurisdiction to impose and review suspended sentences; historic treatment of appeals)
State v. Ingram, 271 N.C. 538 (N.C. 1967) (indictment must describe stolen property with sufficient particularity; general terms like “merchandise” may be fatally defective)
Stroupe v. Stroupe, 301 N.C. 656 (N.C. 1980) (void judgments—those issued without jurisdiction—are nullities and may be attacked collaterally)