Lead Opinion
William Herbert Pennell, IV (Defendant) was indicted on 2 November 2009 for one count of breaking or entering and one count of larceny after breaking or entering in 09 CRS 53255, for offenses that occurred on 12 February 2009; and one count of felony possession of cocaine in 09 CRS 53992, for an offense that occurred on 23 May 2009. On that same day, Defendant waived indictment on an information alleging one count of breaking or entering and one count of larceny after breaking or entering in 10 CRS 57417, for offenses that occurred on 22 August 2010. Defendant pleaded guilty on 2 December 2010 to those five charges in return for a negotiated plea agreement suspending the sentences and placing Defendant on supervised probation for thirty-six months.
Defendant’s probation officer filed violation reports dated 16 June 2011, 18 August 2011, and 3 February 2012, alleging that Defendant had violated the terms of his probation. The 18 August 2011 violation reports alleged that Defendant had cut off his electronic monitoring device and had “left his place of residence during curfew hours on 08/17/2011 and did not return.” For those violations, Defendant’s probation for the larceny after breaking or entering in 10 CRS 57417 was revoked, and his sentence of eight to ten months in prison was activated on 13 October 2011. Defendant served this sentence. The 3 February 2012 violation reports alleged that Defendant had not completed any of his community service requirements, had been charged with resisting a public officer, and had been convicted of three counts of felony breaking or entering for incidents that occurred in July and August of 2011 (just before Defendant’s sentence in 10 CRS 57417 was activated). Defendant admitted to those violations, and the trial court activated four of Defendant’s sentences. Defendant appeals.
I.
The issues on appeal are: (1) whether the trial court lacked jurisdiction to revoke Defendant’s probation for his conviction of larceny after breaking or entering in 09 CRS 53255 and (2) whether the trial court erred in revoking Defendant’s probation for “larceny after breaking or entering” a second time in 10 CRS 57417, instead of revoking for “breaking or entering” in 10 CRS 57417.
II.
We must first decide whether this appeal is properly before this Court. There seems to be considerable confusion in the opinions of our appellate courts concerning what matters may be appealed following a probation revocation hearing when, as in this case, Defendant did not object to the conditions of his suspended sentence at the time judgment was initially entered.
Though the law concerning appeal from revocation of probation is often contradictory, we believe N.C. Gen Stat. § 15A-1347, and the greater weight of the precedent of our Supreme Court, allows appeal from revocation of probation to be based solely upon a challenge, either direct or collateral, to the trial court’s jurisdiction.
“Appellate jurisdiction in criminal appeals by a defendant and grounds for appeal in criminal cases are set forth in N.C. Gen. Stat. § 15A-1442 and N.C. Gen. Stat. § 15A-1444. ‘[A] defendant’s right to appeal in a criminal proceeding is purely a creation of state statute.’ ” State v. Singleton,
Our General Assembly “within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State.” “Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or оtherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction.”
In re T.R.P.,
The General Assembly first codified the authority to suspend a defendant’s sentence in 1937. In re Greene,
In 1977, N.C.G.S. § 15-200.1 was repealed and replaced by N.C. Gen. Stat. § 15A-1347. N.C. Gen. Stat. § 15-200.1 (1978) (repealed); N.C. Gen. Stat. § 15A-1347 (1978); Greene,
N.C. Gen. Stat. § 7A-27 was enacted by our General Assembly in 1967, the same year the Court of Appeals was created. See State v. Henry,
Our Supreme Court heard appeals from the activation of suspended sentences well before a statute specifically allowing for appeal had been enacted. See, e.g., State v. Pelley,
1. That defendant was entitled to a hearing de novo, as to the original issue of guilt or innocence.
2. That the judge should hear evidence on the questions presented to the recorder’s court at time sentence was imposed as to the behavior of defendant, and pass upon same.
3 That the Legislature could not confer upon the recorder’s court jurisdiction of the offense.
Id. at 152,
As discussed above, N.C.G.S. § 15A-1347 places no specific limitations on a defendant’s right to appeal from a final judgment activating a previously suspended sentence. State v. Cloer,
[An] order suspending the imposition or execution of sentence on condition is favorable to the defendant in that it postpones punishment and gives him an opportunity to escape it altogether. When he sits by as the order is entered and does not then appeal, he impliedly consents and thereby waives or abandons his right to appeal on the principal issue of his guilt or innocence and commits himself to abide by the stipulated conditions. He may not be heard thereafter to complain that his conviction was not in accord with due process of law.
He is relegated to his right to contest the imposition of judgment or the execution of sentence, as the case may be, for that there is no evidence to support a finding that the conditions imposed have been breached, S. v. Johnson,169 N.C., 311 ,84 S.E., 767 , or the conditions are unreasonable and unenforceable, or are for an unreasonable length of time. S. v. Shepherd,187 N.C., 609 ,122 S.E., 467 .
Id. at 215-16,
A defendant, having consented, expressly or by implication, to the suspension, upon specified conditions, of an otherwise valid sentence to imprisonment, may not thereafter attack the validity of an order putting such sentence into effect, entered after due notice and hearing, except: (1) On the ground that there is no evidence to support a finding of a breach of the conditions of suspension; or (2) on the ground that the condition which he has broken is invalid because it is unreasonable or is imposed for an unreasonable length of time. State v. Cole,241 N.C. 576 ,86 S.E.2d 203 [(1955)]; State v. Smith,233 N.C. 68 ,62 S.E.2d 495 [(1950)]; State v. Miller, 225 N.C 213,34 S.E.2d 143 [(1945)].
State v. Caudle,
Our Supreme Court has, however, addressed issues not specifically permitted by Miller and Caudle (hereinafter Caudle issues) on appeals from revocation of probation both before and after Miller and Caudle were filed. For example, before Miller, our Supreme Court addressed: whether a defendant’s probationary sentence was tolled while the defendant was a fugitive, and whether the original judgment in the case was in the alternative, or included both a fine and other сonditions of probation, Pelley,
Following Caudle, our Supreme Court addressed appeals from revocation of probation concerning: whether the trial court lacked jurisdiction to hold revocation hearing in a certain county and, if not, whether statute
This Court has also addressed on many occasions issues not specifically covered by Miller or Caudle, see, e.g.: whether the trial court lacked jurisdiction to amend its order after notice of appeal had been filed with this Court and whether the trial court erred by denying the defendant’s request to continue, State v. Dixon,
The above list of citations to opinions of our appellate courts that have decided non-Caudle issues in appeals from probation revocation hearings challenges the notion that Caudle was intended as an absolute limitation on what issues could be appealed following revocation of probation. As further example, in State v. Neeley,
Defendant first argues that there was nothing in the record of his guilty plea to show whether defendant was indigent, whether he was represented by counsel or whether he made a knowing and intelligent waiver of counsel..... This case is controlled by State v. Notes,12 N.C. App. 676 ,184 S.E.2d 409 (1971). Here as in Notes, the defendant tries to attack collaterally the validity of the original judgment where his sentence was suspended, in an appeal from the revocation of that suspension. “When appealing from an order activating а suspended sentence, inquiries are permissible only to determine whether there is evidence to support a finding of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid because it is unreasonable or is imposed for an unreasonable length of time.” State v. Notes,12 N.C. App. at 678 ,184 S.E.2d at 410 (1971); State v. Caudle,276 N.C. 550 ,173 S.E.2d 778 (1970).
Id. at 212,
Defendant’s petition for discretionary review presents two questions for review by this Court. The first question to be considered concerns the resolution of a conflict between the Court of Appeals’ opinion in this case and its opinion in State v. Black, 51 N.C. App. 687 ,277 S.E.2d 584 (1981). That conflict concerns a determination of the proper procedure for raising a constitutional claim of right to counsel at a trial where the defendant received a suspended prison sentence in a case where the defendant does not challenge the sentence until the suspension is revoked and an active sentence imposed. We believe the sounder position is to follow the Black decision which allows the defendant to raise his right to counsel claim after the prison sentence has become active.
State v. Neeley,
This Court, in State v. Mauck,
The Court also addressed this issue in State v. Hall,
Under State v. Camp,299 N.C. 524 , 528,263 S.E.2d 592 , 594-95 (1980), to revoke a defendant’s probation after the period of probation has expired, the trial court must find “that the State had ‘made reasonable effort... to conduct the hearing earlier.’ ” (citing N.C. Gen. Stat. § 15A-1344(f)). In this case, although defendant’s probation period ended on 17 May 2002, the trial court conducted a hearing on 19 August 2002-after the expiration of defendant’s period of probation and suspension. Because the record shows that the trial court did not make any findings (nor is there evidence in the record to support such findings) that the State made reasonable effort to conduct the hearing earlier, we are compelled by State v. Camp to hold that “jurisdiction was lost by the lapse of time and the court had no рower to enter a revocation judgment against defendant.” Id. Accordingly, as in Camp, the judgment appealed from is arrested and defendant is discharged.
Id. at 593-94,
In State v. Camp, this Court considered similar issues and applied N.C.G.S. § 15A-1344(f) to the facts of that case.299 N.C. 524 ,263 S.E.2d 592 (1980). After noting the defendant appeared before the superior court approximately twenty-three times for a revocation hearing, although the hearing was always continued and a revocation hearing was never conducted, our Court held, inter alia: “Moreover, [the trial court] did not find, as indeed [it] could not, thаt the State had ‘made reasonable effort... to conduct the hearing earner,’ ” id. at 528,263 S.E.2d at 595 . Because the probationary period had expired and there was no requisite finding of fact by the trial court, “jurisdiction was lost by the lapse of time and the court had no power to enter a revocation judgment.” Like Camp, thetrial court in the instant case was without jurisdiction to revoke defendant’s probation and to activate defendant’s sentence because it failed to make findings sufficient to satisfy the requirements of the statute.
Bryant,
“ ‘When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.’ ” Applying the hоldings of prior case law and the binding precedent of Bryant, the subsequent revocation of defendant’s probation and activation of his suspended sentence was in error because the trial court was without jurisdiction.
Reinhardt,
This Court, in Reinhardt, explained why we should address the defendant’s sole argument that the trial court lacked jurisdiction to revoke his probation, stating:
A trial court must have subject matter jurisdiction over a case in order to act in that case. In this case, defendant did not raise the issue of subject matter jurisdiction before the trial court. However, a defendant may properly raise this issue at any time, even for the first time on appeal.
Reinhardt,
This Court, in unpublished opinions, has applied the above jurisdictional analysis to situations where, like in the case before us, the defendant challenged jurisdiction based upon an allegedly fatаl defective indictment or information:
Defendant . . . contends that the trial court lacked subject matter jurisdiction because the indictment was fatally defective[.] ...
The State contends that Defendant’s argument is an impermissible collateral attack on his underlying conviction, and that this Court’s review is limited to “whether there is evidence to support a finding of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid[.]” State v. Noles,12 N.C. App. 676 , 678,184 S.E.2d 409 , 410 (1971)....
However, it is well-established that the trial court does not acquire subject-matter jurisdiction when an indictment is fatally defective, and a challenge to the sufficiency of an indictment may be asserted at any time, including for the first time on appeal.....Accordingly, we find that this issue is properly before this Court.
State v. Shepard,
The sole issue on appeal is whether the trial court lacked jurisdiction to entеr judgment upon an invalid information.
The State argues this issue is not properly before this Court because on appeal the review of an order activating a suspended sentence is limited to two areas: (1) the factual and evidentiary basis for finding that a violation occurred; and (2) the validity of the condition that was violated. However, as with any challenge to subject matter jurisdiction, a challenge to the sufficiency of an indictment cannot be waived and may be asserted at any time, including for the first time on appeal. Thus, this matter is properly before us.
Most importantly, our Supreme Court has addressed a defendant’s argument, in an appeal from the revocation of a suspended sentence, that the indictment for the underlying sentence was defective. Ray,
Notwithstanding this extensive history of our appellate courts addressing issues not covered in Caudle, Caudle and related opinions have been cited as precedent requiring dismissal of appeals from orders revoking probation and activating sentences. Two recent opinions from this Court have dismissed appeals that have attempted to challenge the jurisdiction of the trial court to revoke probation.
In State v. Long, the defendant argued on appeal from revocation of his probation that the underlying indictments upon which he was convicted were fatally defective. State v. Long,_N.C. App._,_,
When appealing from an order activating a suspended sentence, “inquiries are permissible only to determine [(1)] whether there is evidence to support a finding of a breach of the conditions of the suspension, or [(2)] whether the condition which has been broken is invalid because it is unreasonable or is imposed for an unreasonable length of time.” State v. Noles,12 N.C. App. 676 , 678,184 S.E.2d 409 , 410 (1971) (citing State v. Caudle,276 N.C. 550 , 553,173 S.E.2d 778 , 781 (1970)). “ ‘[W]hile it is true that a defendant may challenge the jurisdiction of a trial court, such challenge may be made in the appellate division only if and when the case is properly pending before the appellate division.’ ” State v. Jamerson,161 N.C. App. 527 , 529,588 S.E.2d 545 , 547 (2003) (emphasis added) (quoting State v. Absher,329 N.C. 264 , 265 n. 1,404 S.E.2d 848 , 849 n. 1 (1991) (per cwriamf). Thus, “[a] defendant on appeal from an order revoking probation may nоt challenge his adjudication of guilt,” as “ [questioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is ... an impermissible collateral attack.” Noles,12 N.C. App. at 678 ,184 S.E.2d at 410 .
Long,_N.C. App. at_,
Recently, in State v. Hunnicutt,__ N.C. App._,_S.E.2d_,
Notes is applied in both Long and Hunnicutt in a manner inconsistent with our Supreme Court precedent. In Notes, the defendant challenged the revocation of his probation based upon his contention that his guilty plea for the underlying judgment was not entered understandingly and vоluntarily. Notes,
[t]he sole question before [the Supreme Court was] whether defendant can attack the aggravated sentences imposed and suspended in the 11 March 2004 trial court judgments based on [Blakely v. Washington,542 U.S. 296 , 159 L. Ed. 2d. 403 (2004)] by appealing from the 9 March 2005 trial court order revoking his probation and activating his sentences.
Id. at 412,
Although this Court has not addressed this specific issue, the Court of Appeals has done so on at least two occasions. Over thirty-five years ago, in State v. Notes, the defendant, while appealing the revocation of his probation, challenged aspects of his originаl conviction. The Court of Appeals held: “Questioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is, we believe, an impermissible collateral attack.” More recently, in State v. Rush,158 N.C. App. 738 ,582 S.E.2d 37 (2003), the Court of Appeals found that by failing to appeal from the original judgment suspending her sentences, the defendant waived any challenge to that judgment and thus could not attack it in the appeal of a subsequent order activating her sentence.
Id. at 412-13,
By “specific issue [,]” our Supreme Court meant a collateral attack on the underlying judgment on appeal from revocation of probation, as neither Noles nor Rush dealt with Blakely issues. Although our Supreme Court stated that it had never addressed “this specific issue,” it did specifically reject the Noles collateral attack argument as a reason to dismiss a dеfendant’s Sixth Amendment right to counsel argument in Neeley, as noted above. Neeley,
Nonetheless, unlike in Noles and Holmes, the challenge in the present case, as in Long and Hunnicutt, is jurisdictional. A judgment imposed by a court without jurisdiction is void. Stroupe v. Stroupe,
A void judgment is not a judgment at all, and it may always be treated as a nullity because it lacks an essential element of its formulation.
In Carter v. Rountree,109 N.C. 29 , 32,13 S.E. 716 , 717 (1891), Chief Justice Merrimon aptly observed that
A void judgment is one that has merely semblance, without some essential element or elements, as when the court purporting to render it has not jurisdiction. ■
A void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.
It follows, therefore, that in such instances, collateral attack is a permissible manner of seeking relief.
Stroupe,
We are constrained to apply long-standing Supreme Court precedent allowing collateral attack when lack of jurisdiction is alleged, and must disregard the portions of this Court’s opinions that indicate a void judgment may not be attacked collaterally. Andrews v. Haygood,
Both our Supreme Court and this Court, in opinions pre-dating Long and Hunnicutt, have addressed issues concerning the jurisdiction of the trial court in appeals from probation revocation. See, e.g.,Ray,
A closer look at Caudle, and cases upon which it relies, supports this holding. First, the relevant language in Caudle, when read in full, only applies when the underlying sentence is “otherwise valid.”
A defendant, having consented, expressly or by implication, to the suspension, upon spеcified conditions, of an otherwise valid sentence to imprisonment, may not thereafter attack the validity of an order putting such sentence into effect, entered after due notice and hearing, except: (1) On the ground that there is no evidence to support a finding of a breach of the conditions of suspension; or (2) on the ground that the condition which he has broken is invalid because it is unreasonable or is imposed for an unreasonable length of time.
Caudle,
Caudle cites to State v. Cole,
When [a defendant] sits by as the order [suspending sentence and imposing conditions of probation] is entered and does not then appeal, he impliedly consents and thereby waives or abandons his right to appeal on the principal issue of his guilt or innocence and commits himself to abide bythe stipulated conditions. He may not be heard thereafter to complain that his conviction was not in accord with due process of law. He is relegated to his right to contest the imposition of judgment or the execution of sentence, as the case may be, for that there is no evidence to support a finding that the conditions imposed have been breached, State v. Johnson, 169 N.C. 311 ,84 S.E. 767 , or the conditions are unreasonable and unenforceable, or are for an unreasonable length of time. State v. Shepherd,187 N.C. 609 ,122 S.E. 467 .
Miller,
In Shepherd, it was “the position of the defendant that the first condition of the suspended judgment, requiring him ‘to abstain personally, entirely, from the use of intoxicating liquors,’ [was] unreasonable and hence he should not [have been] held to answer for its violation.” Shepherd,
Though, as discussed above, we do not believe we need to apply a Caudle analysis when addressing a jurisdictional claim on appeal from revocation of probation, a Caudle analysis, when applied, counsels addressing the merits of a jurisdictional argument. Appeal from revocation of probation is appropriate under Caudle and similar opinions when “(1) there is no evidence to support a finding that the conditions imposed have been breached, or (2) the conditions are unreasonable and unenforceable or for an unreasonable length of time.” State v. Smith,
Though the language of N.C.Q-S. § 15A-1347 would seem to have expanded the right of appeal from revocation of probation, and thus superseded the framework and limitations articulated in Miller and Caudle, review of North Carolina appellate opinions suggests the enactment of N.C.G.S. § 15A-1347 did not alter the manner in which the appellate courts of this State address appeals from revоcations of probation.
We hold that N.C.G.S. § 15A-1347, and the greater weight of the precedent of our Supreme Court, allow appeal from revocation of probation to be based solely upon a challenge, either direct or collateral, to the trial court’s jurisdiction. The contradictions exhibited in the current law regarding appeal from revocation of probation are best addressed by either our Supreme Court or the General Assembly. Even if we assume, arguendo, that Defendant had no right to directly challenge jurisdiction in this appeal, we hold that, because there can exist no evidence to support violation of conditions of a probation that does not legally exist, and
III.
Defendant also argues that the underlying indictment for his conviction of larceny after breaking or entering in 09 CRS 53255 was fatally defective. The “ ‘essential elements of larceny are that [the] defendant (1) took the property of another; (2) carried it away; (3) without the owner’s consent; and (4) with the intent to permanently deprive the owner of the properly.’ ” State v. Justice,_N.C. App._,_,
“ ‘The description in an indictment must be in the common and ordinary acceptation of property and with certainty sufficient to enable the jury to say that the article proved to be stolen is the same, and to enable the court to see that it is the subject of larceny and also to protect the defendant by pleading autre fois convict or autre fois acquit in the event of future prosecutiоn for the offense, so that there may be no doubt of its identity; and the evidence must substantially correspond with the description in the indictment. ... The description must still be in a plain and intelligible manner and must correspond to the different forms of existence in which the same article is found. In its raw or unmanufactured state it may be described by its ordinary name, but if it be worked up into some other forms, etc., when stolen, it must be described by the name by which it is generally known.’ ”
Id. at 542,
The proof offered by the State showed that the personal property alleged to have been stolen and carried away consisted of eleven rings with a total value of approximately $878.00. The description of this property by the general and broadly comprehensive words, ‘merchandise, chattels, money, valuable securities and other personal property’ is not sufficient. The property was not described in the name generally applied to it in the trade, and in common language. Nor was the description sufficient to enable the jury to say that the article proved to be stolen is the same, or such that the defendant could avail himself of his conviction or acquittal as a bar to subsequent prosecutions for the same offense.
Id. at 543,
In the case before us, Defendant was convicted of larceny based upon the following indictment in count II of 09 CRS 53255:
And the jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully, and feloniously did steal, take, and carry away various items of merchandise, the personal property of Computer Shop of Statesville, Inc., DBA Haven Skate Shop, having a value of more than $1,000.00 dollars, pursuant to the commission of the felonious breaking and entering described in count I above.
The term “merchandise” in the indictment in the present case does not describe the property alleged to have been taken any better than did the term “merchandise” in Ingram or Justice. The allegations that the “merchandise” had a value of over $1,000.00, and that the “merchandise” was taken during a breaking or entering do not serve to clarify what was taken from Computer Shop of Statesville, Inc., DBA Haven Skate Shop, which may have sold computers, skates, skateboards, or other unknown items. This is in contrast to thе indictment in 10 CRS 57417 in which Defendant was alleged to have taken “12 violins, 3 cellos, a viola, a USB flashdrive, an IBM laptop computer, a surround sound system, a classroom skeleton and weather ball, the personal property of
The indictment in count II of 09 CRS 53255 was fatally defective and, therefore, the trial court never obtained subject matter jurisdiction over that charge. Justice,_N.C. App. at_,
IV.
It is also clear that the trial court could not activate a sentence that Defendant had already served. Defendant had already served the active sentence imposed for larceny after breaking or entering in 10 CRS 57417 at the time the trial court erroneously entered judgment and commitment upon revocation of probation on that same charge on 5 June 2012.
Defendant states in his brief, and we agree, that:
It is clear from the rеcord the [the trial court] intended to revoke [Defendant’s] probation for 10 CRS 57417 (breaking and entering), not 10 CRS 57417 (larceny after breaking and entering). The judgment and commitment upon revocation of probation for 10 CRS 57417 (larceny after breaking and entering) was the result of clerical error and must be vacated.
Defendant asks this Court to vacate that judgment and remand “to the trial court to correct clerical mistakes in the judgments.”
We remand the judgment and commitment in 10 CRS 57417 for the trial court to correct its clerical error and make the judgment reflect that Defendant’s probation in 10 CRS 57417 was revoked on the first count, breaking or entering. See State v. Jarman,
Defendant does not challenge the revocation of probation and activation of the sentences for his other convictions, and those are affirmed.
Affirmed in part; vacated and remanded in part; judgment arrested in 09 CRS 53255, larceny after breaking or entering.
Notes
. Defendant was placed on probation before the General Assembly’s major overhaul of probation law, enacted through The Justice Reinvestment Act of 2011, went into effect.
. We are aware of the following footnote in State v. Absher. “While it is true that a defendant may challenge the jurisdiction of a trial court, such challenge may be made in the appellate division only if and when the case is properly pending before the appellate division.” State v. Absher,
Concurrence Opinion
concurs in part and concurs in the result only in part by separate opinion
I concurred in State v. Hunnicutt,_N.C. App. _,
I am persuaded by the majority opinion that Hunnicutt and State v. Long,_N.C. App._,