{ "id": 1511531, "name": "STATE OF NORTH CAROLINA v. BELVIN E. WAGNER", "name_abbreviation": "State v. Wagner", "decision_date": "2002-12-20", "docket_number": "No. 108A02", "first_page": "599", "last_page": "603", "citations": [ { "type": "official", "cite": "356 N.C. 599" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "560 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": -1 }, { "cite": "148 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367874 ], "year": 2002, "opinion_index": -1, "case_paths": [ "/nc-app/148/0658-01" ] }, { "cite": "502 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659869 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0671-01" ] }, { "cite": "426 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "333 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547702 ], "year": 1993, "pin_cites": [ { "page": "336-37" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0331-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "22" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "year": 1987, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "99 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "246 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627575 ], "year": 1957, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0596-01" ] }, { "cite": "210 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "543" } ], "opinion_index": 0 }, { "cite": "24 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551382 ], "year": 1975, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/24/0387-01" ] }, { "cite": "189 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "155" } ], "opinion_index": 0 }, { "cite": "281 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575541 ], "year": 1972, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0517-01" ] } ], "analysis": { "cardinality": 439, "char_count": 9327, "ocr_confidence": 0.759, "pagerank": { "raw": 9.901465498596486e-08, "percentile": 0.5354968571526757 }, "sha256": "f32297aa21246dc7b0150cc08cb21c03f29c35475c5013b71f353b20af9e0f58", "simhash": "1:6569f81a760db9da", "word_count": 1471 }, "last_updated": "2023-07-14T16:17:54.672071+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. BELVIN E. WAGNER" ], "opinions": [ { "text": "PER CURIAM.\nDefendant Belvin Eugene Wagner was originally arrested without a warrant when he attempted to purchase cocaine during an undercover drug operation on 17 July 1998 in which undercover law enforcement officers used blanched macadamia nuts as fake crack cocaine. On 17 August 1998, based on an information, defendant entered a negotiated guilty plea to the offense of attempted possession of cocaine as an habitual felon. This plea bargain provided that defendant would receive a minimum sentence of 101 months\u2019 imprisonment based on his criminal history, which was calculated to be at level VI. The trial court entered judgment sentencing defendant to serve 101 to 131 months\u2019 confinement.\nDefendant thereafter filed a motion for appropriate relief asserting that his record level had been improperly calculated as a level VI when in fact his criminal history resulted in a level V for sentencing purposes. Concluding that defendant\u2019s plea bargain and guilty plea were based on \u201cthe mutual mistake of all parties as to [defendant\u2019s] proper record level for sentencing purposes,\u201d the trial court on 10 May 2000, nunc pro tunc 2 May 2000, vacated and set aside defendant\u2019s guilty plea and the judgment entered thereon.\nOn 15 May 2000 defendant was indicted for (i) attempt to possess cocaine, (ii) felonious possession of drug paraphernalia, and (iii) being an habitual felon. The paraphernalia on which this charge was based, an antenna used as a crack pipe, was found on defendant\u2019s person on 17 July 1998, at the time defendant was originally arrested for attempted possession of cocaine. The prosecutor subsequently offered defendant a plea bargain of 101 to 131 months\u2019 imprisonment, the same sentence he had received before his plea was vacated. Defendant rejected this offer of plea. Defendant moved to dismiss the paraphernalia indictment, claiming unconstitutional vindictive prosecution and violation of N.C.G.S. \u00a7 15A-1335. Defendant\u2019s motion to dismiss was denied.\nOn 17 October 2000 a jury found defendant guilty of attempt to possess cocaine, felonious possession of drug paraphernalia, and being an habitual felon. The trial court sentenced defendant at level VI to serve two consecutive 135- to 171-month sentences.\nBefore this Court defendant asserts that the Court of Appeals erred in upholding these convictions and sentences. Defendant again contends that the felony drug paraphernalia indictment after his successful motion for appropriate relief was based on unconstitutional vindictive prosecution and was in violation of N.C.G.S. \u00a7 15A-1335 and that the subsequent sentence for attempted possession of cocaine also violated N.C.G.S. \u00a7 15A-1335. Defendant does not challenge the trial court\u2019s finding of a record level VI for his criminal history.\nInitially, we note that a jurisdictional issue not raised in the Court of Appeals has been raised in this Court, namely, that the 15 May 2000 indictment for felonious possession of drug paraphernalia is invalid on its face in that the charge of felonious possession of drug paraphernalia is not supported by any statute, a fact that the State concedes. N.C.G.S. \u00a7 90-95(e)(3), cited in the indictment, does not pertain to drug paraphernalia. For a court to have jurisdiction, \u201ca criminal offense [must] be charged in the warrant or indictment upon which the State brings the defendant to trial.\u201d State v. Vestal, 281 N.C. 517, 520, 189 S.E.2d 152, 155 (1972). Inasmuch as the indictment for felonious possession of drug paraphernalia was facially invalid, the trial court never had jurisdiction over this charge. Moreover, appellate jurisdiction is derivative of the trial court\u2019s jurisdiction. State v. Earley, 24 N.C. App. 387, 389, 210 S.E.2d 541, 543 (1975); see also State v. Morgan, 246 N.C. 596, 599, 99 S.E.2d 764, 766 (1957). Therefore, the Court of Appeals also lacked jurisdiction to hear defendant\u2019s appeal of the felonious possession of drug paraphernalia conviction.\nAccordingly, for lack of jurisdiction in the trial court, defendant\u2019s conviction for felonious possession of drug paraphernalia is void and is vacated. Similarly, the opinion of the Court of Appeals as it pertains to the conviction for felonious possession of drug paraphernalia is vacated. Having vacated defendant\u2019s conviction for felonious possession of drug paraphernalia, we do not need to address defendant\u2019s assignment of error challenging the trial court\u2019s denial of his motion to dismiss based on vindictive prosecution.\nDefendant was also improperly sentenced for his conviction for attempt to possess cocaine. N.C.G.S. \u00a7 15A-1335 provides:\nWhen a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.\nN.C.G.S. \u00a7 15A-1335 (2001). Pursuant to this statute a defendant whose sentence has been successfully challenged cannot receive a more severe sentence for the same offense or conduct on remand.\nIn this case, contrary to the State\u2019s contention, the fact that defendant\u2019s original conviction resulted from a negotiated plea bargain rather than a finding of guilty by a jury is of no consequence. This Court has held that \u201c[a] plea of guilty, accepted and entered by the trial court, is the equivalent of conviction.\u201d State v. Brown, 320 N.C. 179, 210, 358 S.E.2d 1, 22, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987). After defendant\u2019s plea and sentence were set aside pursuant to his motion for appropriate relief, a sentence of 135 to 175 months\u2019 imprisonment for defendant\u2019s conviction at trial for attempt to possess cocaine was contrary to the mandate of section 15A-1335 when defendant\u2019s original sentence was only 101 to 131 months\u2019 imprisonment for the same offense. See State v. Hemby, 333 N.C. 331, 336-37, 426 S.E.2d 77, 80 (1993).\nThis case is distinguishable from State v. Wall, 348 N.C. 671, 502 S.E.2d 585 (1998), in that the sentence defendant initially received pursuant to the plea agreement was a lawful mitigated sentence for a record level VI offender. Unlike the defendant in Wall, this defendant by his motion for appropriate relief did not seek specific performance of a plea bargain containing an unauthorized sentence. Under section 15A-1340.13(b),\nthe court shall determine the prior record sentence for the offender pursuant to G.S. 15A-1340.14. The sentence shall contain a sentence disposition specified for the class of offense and prior record level, and its minimum term of imprisonment shall be within the range specified for the class of offense and prior record level, unless applicable statutes require or authorize another minimum sentence of imprisonment.\nN.C.G.S. \u00a7 15A-1340.13(b) (2001). In this case N.C.G.S. \u00a7 15A-1335 is an applicable statute requiring \u201canother minimum sentence of imprisonment.\u201d Id.\nIn summary, for the reasons stated herein, defendant\u2019s conviction for felonious possession of drug paraphernalia and the Court of Appeals\u2019 decision as to that conviction are vacated. As to the judgment for attempted possession of cocaine, the decision of the Court of Appeals is reversed and remanded to that court for further remand to the trial court for resentencing in a manner not inconsistent with this opinion.\nVACATED IN PART AND REVERSED AND REMANDED IN PART.", "type": "majority", "author": "PER CURIAM." } ], "attorneys": [ "Roy Cooper, Attorney General, by Joan M. Cunningham, Assistant Attorney General, for the State.", "J. Clark Fischer for defendant-appellant.", "Rudolph, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., on behalf of the North Carolina Academy of Trial Lawyers, amicus curiae.", "North Carolina Prisoner Legal Services, Inc., by Kristin D. Parks, amicus curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BELVIN E. WAGNER\nNo. 108A02\n(Filed 20 December 2002)\n1. Drugs\u2014 felonious possession of drug paraphernalia\u2014 nonexistent crime\nA charge of felonious possession of drug paraphernalia is not supported by any statute. Therefore, an indictment for felonious possession of drug paraphernalia was facially invalid, the trial court never had jurisdiction over this charge, and defendant\u2019s conviction for felonious possession of drug paraphernalia is void and is vacated.\n2. Sentencing\u2014 guilty plea and sentence set aside \u2014 greater sentence after trial \u2014 statutory violation\nAfter defendant\u2019s plea of guilty of attempted possession of cocaine and his sentence of 101 to 131 months were set aside pursuant to his motion for appropriate relief, a sentence of 135 to 175 months imposed upon defendant\u2019s conviction at trial for attempted possession of cocaine was contrary to the mandate of N.C.G.S. \u00a7 15A-1335 that a defendant whose sentence has been successfully challenged cannot receive a more severe sentence for the same offense or conduct on remand. The fact that defendant\u2019s original conviction resulted from a negotiated plea rather than a finding of guilt by a jury is of no consequence.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 148 N.C. App. 658, 560 S.E.2d 174 (2002), finding no error in judgments entered 17 October 2000 by Albright, J., in Superior Court, Forsyth County. Heard in the Supreme Court 12 September 2002.\nRoy Cooper, Attorney General, by Joan M. Cunningham, Assistant Attorney General, for the State.\nJ. Clark Fischer for defendant-appellant.\nRudolph, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., on behalf of the North Carolina Academy of Trial Lawyers, amicus curiae.\nNorth Carolina Prisoner Legal Services, Inc., by Kristin D. Parks, amicus curiae." }, "file_name": "0599-01", "first_page_order": 649, "last_page_order": 653 }