{ "id": 9192107, "name": "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON BLAKNEY", "name_abbreviation": "State v. Blakney", "decision_date": "2003-03-18", "docket_number": "No. COA02-592", "first_page": "671", "last_page": "675", "citations": [ { "type": "official", "cite": "156 N.C. App. 671" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "336 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520139 ], "year": 1985, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0180-01" ] }, { "cite": "453 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "863" }, { "page": "863-64", "parenthetical": "\" '[o]ne basic purpose behind [the] Habitual Felons Act is to provide notice to [the] defendant that he is being prosecuted for some substantive felony as a recidivist\"" } ], "opinion_index": 0 }, { "cite": "339 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558634 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "727" }, { "page": "728" }, { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0725-01" ] }, { "cite": "385 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11341302 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "556" }, { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/us/385/0554-01" ] }, { "cite": "233 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1977, "pin_cites": [ { "page": "586-87" }, { "page": "588" }, { "page": "587" }, { "page": "587" }, { "page": "589" }, { "page": "588" } ], "opinion_index": 0 }, { "cite": "292 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569971 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "432-33" }, { "page": "433" }, { "page": "436" }, { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0431-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "191 S.E. 27", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "28" } ], "opinion_index": 0 }, { "cite": "211 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628056 ], "year": 1937, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/nc/211/0563-01" ] }, { "cite": "144 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "265 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576849 ], "year": 1965, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0703-01" ] }, { "cite": "146 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "420" } ], "opinion_index": 0 }, { "cite": "266 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561409 ], "year": 1966, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0528-01" ] }, { "cite": "138 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1964, "pin_cites": [ { "page": "139" }, { "page": "139", "parenthetical": "need to state \"feloniously\" in indictment \"unless the Legislature otherwise expressly provides\"" }, { "page": "139" } ], "opinion_index": 0 }, { "cite": "262 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569355 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "537" }, { "page": "537" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0536-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(3)" }, { "page": "(a)(3)" }, { "page": "(d)(4)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 505, "char_count": 10477, "ocr_confidence": 0.745, "pagerank": { "raw": 2.9849349558970973e-07, "percentile": 0.8512897856207061 }, "sha256": "81a63d16340de5cd330c03de3c010c4f2b7be3688eb052455356af7333925c48", "simhash": "1:8ac5fe6a84b32490", "word_count": 1699 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON BLAKNEY" ], "opinions": [ { "text": "BRYANT, Judge.\nChristopher Leon Blakney (defendant) appeals a judgment dated 8 August 2001 (1) entered pursuant to a guilty plea to the charges of felony possession of marijuana, possession with intent to sell and deliver marijuana, second-degree trespass, and resisting a public officer and (2) sentencing defendant as a habitual felon.\nOn 22 January 2001, the grand jury returned an indictment against defendant for having attained the status of habitual felon. On 5 February 2001, the predicate felony indictment was issued, charging defendant with possession with intent to sell and deliver marijuana, second-degree trespass, and resisting a public officer. This indictment was superceded by an indictment dated 25 June 2001, which added possession of marijuana pursuant to N.C. Gen. Stat. \u00a7 90-95(a)(3) as a fourth charge. According to this charge, \u201cdefendant . . . unlawfully and willfully did possess more than one and one-half ounces of marijuana^] a controlled substance which is included in Schedule VI of the North Carolina Controlled Substances Act.\u201d\nThe issues raised are whether: (I) the superceding indictment charging defendant with possession of marijuana was fatally defective because it omitted the word \u201cfeloniously\u201d and (II) the habitual felon indictment, having been returned two weeks before the substantive felony indictment, is void.\nI\nWith respect to the superceding indictment, defendant takes issue with the sufficiency of the possession of marijuana charge. Specifically, defendant contends, because the charge does not contain the word \u201cfeloniously,\u201d it failed to provide him with notice that he was being tried for a felony as opposed to a misdemeanor. Defendant relies on our Supreme Court\u2019s holding \u201cthat bills of indictment charging felonies, in which there has been a failure to use the word \u2018feloniously,\u2019 are fatally defective, unless the Legislature otherwise expressly provides.\u201d State v. Whaley, 262 N.C. 536, 537, 138 S.E.2d 138, 139 (1964); see State v. Fowler, 266 N.C. 528, 530, 146 S.E.2d 418, 420 (1966); State v. Price, 265 N.C. 703, 704, 144 S.E.2d 865, 867 (1965). Whaley and the line of cases that followed based their holding on the reasoning stated in a 1930\u2019s case, State v. Callett, which explained that the need to use the word \u201cfeloniously\u201d in a felony indictment evolved \u201c[s]ince all criminal offenses punishable with death or imprisonment in a State prison were by . . . section [14-1] declared felonies.\u201d State v. Callett, 211 N.C. 563, 564, 191 S.E. 27, 28 (1937). At the time this case law developed, N.C. Gen. Stat. \u00a7 14-1 simply defined a felony as punishable by either death or imprisonment, leaving felonies difficult to distinguish from misdemeanors unless denominated as such in the indictment. See N.C.G.S. \u00a7 14-1 (1953) (amended 1969). In 1969, however, the statute was changed and now defines a felony as \u201ca crime which: (1) [w]as a felony at common law; (2) [i]s or may be punishable by death; (3) [i]s or may be punishable by imprisonment in the State\u2019s prison; or (4) [i]s denominated as a felony by statute.\u201d N.C.G.S. \u00a7 14-1 (1969) (same as current version of statute). While the felony-misdemeanor ambiguity that prompted the holdings in Callett and its progeny remains in effect today with respect to subsections (1) through (3), subsection (4) now expressly provides for statutory identification of felonies. See Whaley, 262 N.C. at 537, 138 S.E.2d at 139 (need to state \u201cfeloniously\u201d in indictment \u201cunless the Legislature otherwise expressly provides\u201d). As such, subsection (4) affords any defendant notice of being charged with a felony as opposed to a misdemeanor, even without the use of the word \u201cfeloniously,\u201d provided the indictment gives notice of the statute denominating the alleged crime as a felony. Thus, while its inclusion is still the better practice, the word \u201cfeloniously\u201d is not required for a valid felony indictment if the indictment references the specific statute making the crime a felony.\nIn this case, the indictment charging defendant with possession of marijuana only refers to N.C. Gen. Stat. \u00a7 90-95(a)(3), which makes it \u201cunlawful for any person . . . [t]o possess a controlled substance\u201d and does not state whether this crime is a felony or a misdemeanor. N.C.G.S. \u00a7 90-95(a)(3) (2001). The charge in the indictment does state \u201cdefendant. . . unlawfully and willfully did possess more than one and, one-half ounces of marijuana[,] a, controlled substance which is included in Schedule VI of the North Carolina Controlled Substances Act.\u201d The indictment thus contains references to N.C. Gen. Stat. \u00a7 90-95(d)(4), which provides \u201c[i]f the quantity of the controlled substance [possessed in violation of section 90-95(a)(3)[ exceeds one and one-half ounces ... of marijuana . . . the violation shall be punishable as a Class I felony.\u201d N.C.G.S. \u00a7 90-95(d)(4) (2001). Although the indictment contains identifying words that would lead defendant reading section 90-95(d)(4) to conclude he had found the applicable section to the crime charged in this case, the words by themselves, without reference to the statute number, do not provide defendant with specific notice of the statute charging him with a felony. Accordingly, the indictment in this case, having failed to either use the word \u201cfeloniously\u201d or to state the statutory section indicating the felonious nature of the charge, is invalid as it does not provide notice of the felony charge against defendant. Because this leaves the indictment fatally defective, the charge for possession of marijuana must be vacated. The State, however, may elect to re-indict defendant in accordance with this opinion. See Whaley, 262 N.C. at 537, 138 S.E.2d at 139.\nII\nDefendant next challenges the validity of the habitual felon indictment. The Habitual Felons Act, N.C.G.S. \u00a7\u00a7 14-7.1 to -7.6 (2001), allows for the indictment of a defendant as a habitual felon if he has been convicted of or pled guilty to three felony offenses. Stale v. Allen, 292 N.C. 431, 432-33, 233 S.E.2d 585, 586-87 (1977). \u201cThe effect of such a proceeding \u2018is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past.\u2019 \u201d Id. at 435, 233 S.E.2d at 588 (quoting Spencer v. Texas, 385 U.S. 554, 556, 17 L. Ed. 2d 606, 609 (1967)). The Habitual Felons Act requires two separate indictments, the substantive felony indictment and the habitual felon indictment, but does not state the order in which they must be issued. See id. at 434, 233 S.E.2d at 587. The Act \u201cdoes not authorize an independent proceeding to determine [the] defendant\u2019s status as a habitual felon separate from the prosecution of a predicate substantive felony.\u201d State v. Cheek, 339 N.C. 725, 727, 453 S.E.2d 862, 863 (1995). The \u201chabitual felon indictment is [necessarily] ancillary to the indictment for the substantive felony and cannot stand on its own.\u201d State v. Winstead, 78 N.C. App. 180, 182, 336 S.E.2d 721, 723 (1985); see Cheek, 339 N.C. at 728, 453 S.E.2d at 863 (citing Allen, 292 N.C. at 433, 233 S.E.2d at 587). In other words, the habitual felon indictment cannot be the sole charge on which the State proceeds at trial. See Allen, 292 N.C. at 436, 233 S.E.2d at 589 (where prior to the return of the habitual felon indictment \u201call the substantive felony proceedings upon which it [was] based had been prosecuted to completion and there was no pending felony prosecution to which the habitual felon proceeding could attach as an ancillary proceeding, the indictment. . . [failed] to charge a cognizable offense\u201d).\nIn this case, the substantive felony indictment was not returned by the grand jury until two weeks after the habitual felon indictment but well in advance of the judicial proceeding. There was thus a \u201cpending felony prosecution to which the habitual felon proceeding could attach.\u201d Id. Furthermore, at the time his guilty plea was entered, defendant had notice not only of the substantive charges against him but also that he was being prosecuted as a recidivist. See Cheek, 339 N.C. at 728, 453 S.E.2d at 863-64 (\u201c \u2018[o]ne basic purpose behind [the] Habitual Felons Act is to provide notice to [the] defendant that he is being prosecuted for some substantive felony as a recidivist\u201d) (quoting Allen, 292 N.C. at 436, 233 S.E.2d at 588). We therefore hold that the issuance of a habitual felon indictment prior to the substantive felony indictment does not by itself void the habitual felon indictment where the notice and procedural requirements of the Habitual Felons Act have been complied with.\nVacated in part and remanded for resentencing.\nJudges HUNTER and ELMORE concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.", "Lig\u00f3n and Hinton, by Lemuel W. Hinton, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON BLAKNEY\nNo. COA02-592\n(Filed 18 March 2003)\n1. Drugs\u2014 felonious possession of marijuana \u2014 indictment\u2014 \u201cfelonious\u201d not mentioned\nAn indictment did not support a guilty plea to felonious possession of marijuana where it did not contain the word \u201cfelonious\u201d and did not refer by number to N.C.G.S. \u00a7 90-95(d)(4), which provides for felonious possession. Although the wording of the indictment might lead to the statute, the words by themselves do not provide specific notice of the statute.\n2. Sentencing\u2014 habitual felon indictment \u2014 prior to substantive felony indictment\nThe issuance of an habitual felon indictment before a substantive felony indictment does not by itself void the habitual felon indictment if the notice and procedural requirements of the Habitual Felons Act have been complied with. In this case, the substantive felony indictment was returned well in advance of the judicial proceeding, so that there was a pending felony prosecution to which the habitual felon prosecution could attach, and defendant had notice of the substantive charges and that he was being prosecuted as a recidivist. N.C.G.S. \u00a7 90-95(d)(4).\nAppeal by defendant from judgment dated 8 August 2001 by Judge Lindsay R. Davis in Forsyth County Superior Court. Heard in the Court of Appeals 18 February 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.\nLig\u00f3n and Hinton, by Lemuel W. Hinton, for defendant appellant.\n. We note that the judgment includes three file numbers: 01 CRS 00005, 00 CRS 59336, and 00 CRS 59338. Because neither the habitual felon indictment (01 CRS 00005) nor the substantive felony indictment (00 CRS 59336) contain any reference to the third file number, this Court is unable to discern its origin." }, "file_name": "0671-01", "first_page_order": 701, "last_page_order": 705 }