{ "id": 4329553, "name": "STATE OF NORTH CAROLINA v. WILLIAM HERBERT PENNELL, IV", "name_abbreviation": "State v. Pennell", "decision_date": "2014-06-12", "docket_number": "No. 371PA13", "first_page": "466", "last_page": "472", "citations": [ { "type": "official", "cite": "367 N.C. 466" } ], "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": "746 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": -1 }, { "cite": "646 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638743 ], "weight": 11, "year": 2007, "pin_cites": [ { "page": "411" }, { "page": "354" }, { "page": "354" }, { "page": "412" }, { "page": "354" }, { "page": "354" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0353-01" ] }, { "cite": "297 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "391" }, { "page": "391", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "307 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561402 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "249" }, { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0247-01" ] }, { "cite": "173 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562498 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0550-01" ] }, { "cite": "582 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2003, "pin_cites": [ { "page": "38" }, { "page": "38" }, { "page": "39" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189381 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "739" }, { "page": "740" }, { "page": "741" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0738-01" ] }, { "cite": "184 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1971, "pin_cites": [ { "page": "410" }, { "page": "410" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552299 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "678" }, { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0676-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 4, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "361 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3742371 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "411-12" }, { "page": "411" }, { "page": "412-13" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0410-01" ] }, { "cite": "404 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "329 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553543 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0264-01" ] }, { "cite": "748 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "194 S.E. 472", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 5, "year": 1938, "pin_cites": [ { "page": "472" }, { "page": "472-73" }, { "page": "473" }, { "page": "473-74" } ], "opinion_index": 0 }, { "cite": "212 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619433 ], "weight": 2, "year": 1938, "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0748-01" ] }, { "cite": "746 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2013, "pin_cites": [ { "page": "444" }, { "page": "444" }, { "page": "442-44" }, { "page": "442" }, { "page": "439" }, { "page": "439" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 605, "char_count": 15915, "ocr_confidence": 0.749, "pagerank": { "raw": 1.345925439401287e-07, "percentile": 0.6322308752363555 }, "sha256": "4d7edcac7ab6cb9c75c60c5afb5dc0c6554114b5e614633e30e32bad4990cbee", "simhash": "1:cb58746de5a788fe", "word_count": 2552 }, "last_updated": "2023-07-14T22:06:46.212757+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM HERBERT PENNELL, IV" ], "opinions": [ { "text": "BEASLEY, Justice.\nWe consider whether, on direct appeal from the activation of a suspended sentence, a defendant may challenge the jurisdictional validity of the indictment underlying his original conviction. Because a challenge to the validity of the original judgment constitutes an impermissible collateral attack, we hold that defendant\u2019s appeal was not proper. Accordingly, we reverse the decision of the Court of Appeals with respect to this issue.\nDefendant William Herbert Pennell pleaded guilty on 2 December 2010 to two counts of felony breaking or entering, two counts of felony larceny after breaking or entering, and one count of possession of cocaine. Defendant received four consecutive sentences of eight to ten months for each of the property offenses and one sentence of six to eight months for the drug possession conviction-. Under a plea arrangement, defendant\u2019s sentences were suspended and he was placed on thirty-six months of supervised probation.\nOn 16 June 2011, defendant\u2019s probation officer filed five probation violation reports. After a hearing, the trial court modified defendant\u2019s sentences by extending the length of his probation by twenty-four months. Defendant\u2019s probation officer filed five additional violation reports on 18 August 2011. On 13 October 2011, the trial court revoked defendant\u2019s probation and activated his sentence on one count of larceny after breaking or entering in case number 10 CRS 57417. The trial court modified defendant\u2019s other sentences to add six months- of intensive supervised probation following his release from his activated sentence.\nOn 3 February 2012, defendant\u2019s probation officer filed four additional probation violation reports. After a hearing, the trial court entered judgment on 5 June 2012 revoking defendant\u2019s probation and activating his sentences for the remaining offenses for which he was on probation.\nDefendant appealed the 5 June 2012 judgments to the Court of Appeals. In his appeal defendant first argued that the trial court erred in activating his sentence for larceny after breaking or entering in case number 10 CRS 57417 because his sentence for this count of larceny had already been activated and served pursuant to the trial court\u2019s revocation of defendant\u2019s probation on 13 October 2011. The Court of Appeals agreed. State v. Pennell,_N.C. App._,_, 746 S.E.2d 431, 444 (2013). The Court of Appeals concluded that the trial court intended to revoke defendant\u2019s probation for the count of breaking or entering in case number 10 CRS 57417 rather than the count of larceny after breaking or entering in the case having the same number, and remanded the judgment and commitment to the trial court to correct the clerical mistake in its judgment. Id. at._, 746 S.E.2d at 444.\nDefendant\u2019s second argument before the Court of Appeals was that the trial court lacked subject matter jurisdiction to revoke his probation on the count of felony larceny in case number 09 CRS 53255 because the original indictment for the offense was fatally defective. Relying predominantly on this Court\u2019s holding in State v. Ray, 212 N.C. 748, 194 S.E. 472 (1938), the Court of Appeals held that defendant\u2019s appeal was proper, determined that the original indictment was defective, and arrested revocation of defendant\u2019s probation on that count. Pennell,_N.C. App. at_, 746 S.E.2d at 442-44. On 3 October 2013, we allowed the State\u2019s petition for discretionary review. State v. Pennell,_N.C._, 748 S.E.2d 534 (2013).\nThe issue now before this Court is whether a defendant may collaterally challenge the validity of an underlying indictment by means of an appeal from revocation of his probation. The State contends that defendant may not challenge the indictment underlying his conviction in an appeal from a judgment revoking probation because the appeal constitutes an impermissible collateral attack on the initial judgment accepted by defendant under his 2 December 2010 guilty plea. In response, defendant argues that because the original indictment was facially defective, the trial court lacked subject matter jurisdiction to adjudicate one charge of larceny, and therefore, the court\u2019s initial judgment is void. Defendant asserts that a challenge to the trial court\u2019s jurisdiction \u201cmay be raised at any time\u201d and that \u201ca collateral attack is permissible when the underlying judgment is void.\u201d Defendant contends that it is therefore appropriate to hear a challenge to the trial court\u2019s jurisdiction over the original conviction and sentence in an appeal from the probation revocation activating his suspended sentence.\nThe Court of Appeals agreed with defendant\u2019s arguments and held that defendant\u2019s appeal was proper. Pennell, _N.C. App. at _, 746 S.E.2d at 442. Central to its conclusion was this Court\u2019s holding in State v. Ray. Id. at_, 746 S.E.2d at 439. There, the defendant was indicted for embezzlement but pleaded guilty to a charge of trespass. Ray, 212 N.C. at 748, 194 S.E. at 472. The defendant\u2019s sentence was suspended on the condition that he pay specific remuneration to the trial court for the benefit of individuals we presume to be the victims of his embezzlement. Id. at 748-49, 194 S.E. at 472-73. After the defendant failed to comply with these conditions, the trial court ordered that \u201cthe jail sentence imposed by the previous judgment be put into execution.\u201d Id. at 750, 194 S.E. at 473. In response to the defendant\u2019s appeal, this Court concluded that \u201c[t]he defendant\u2019s motion in arrest of judgment, on account of defect in the bill of indictment for embezzlement, cannot be sustained, since he was neither tried nor sentenced under that bill nor for that offense.\u201d Id. at 750, 194 S.E. at 473-74. From this determination the Court of Appeals concluded that, because this Court \u201caddressed a defendant\u2019s argument, in an appeal from the revocation of a suspended sentence, that the indictment for the underlying sentence was defective,\u201d our precedent demonstrated that such an appeal was properly before the Court and thus may be addressed on its merits. Pennell,_N.C. App. at_, 746 S.E.2d at 439.\nWe take this opportunity to address Ray and reemphasize the limitations this Court has since recognized with respect to challenges to jurisdiction on appeal. First, this Court in Ray did not squarely address whether a jurisdictional challenge to an original judgment may be raised in an appeal from the activation of a suspended sentence. Rather, this Court observed that the defendant\u2019s assertion of error was baseless because the defendant was not convicted under the indictment he was attempting to challenge. This brief conclusion by our Court that the defendant\u2019s appeal lacked merit for this reason is altogether insufficient to support the weight placed upon it by the Court of Appeals.\nMoreover, since deciding Ray this Court has recognized limitations on challenges to jurisdiction on appeal. \u201cWhile 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.\u201d State v. Absher, 329 N.C. 264, 265 n.1, 404 S.E.2d 848, 849 n.1 (1991) (per curiam). Our inquiry is thus whether defendant\u2019s case is properly before our appellate courts.\nIn State v. Holmes, 361 N.C. 410, 646 S.E.2d 353 (2007), this Court addressed \u201cwhether a suspended sentence can be challenged when appealing the trial court\u2019s order revoking probation and activating the sentence,\u201d Id. at 411, 646 S.E.2d at 354. There the defendant pleaded guilty to second-degree kidnapping, assault inflicting serious bodily injury, and accessory after the fact to second-degree rape. Id. He was sentenced in the aggravated range for the kidnapping and assault charges, but all his sentences were suspended. 361 N.C. at 411-12, 646 S.E.2d at 354. The defendant did not appeal the sentences. Id. at 412, 646 S.E.2d at 354. A year later, defendant violated the conditions of his probation and his three sentences were activated. Id. He appealed the activation of his sentences, arguing, inter alia, that \u201chis sentences for kidnapping and assault were unconstitutionally aggravated in violation of the United States Supreme Court\u2019s decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).\u201d Id. Recognizing the reasoning of prior cases from the Court of Appeals, we held that \u201ca direct appeal from the original judgment lies only when the sentence is originally entered.\u201d 361 N.C. at 411, 646 S.E.2d at 354.\nIn reaching our holding in Holmes, we were persuaded by the reasoning of the Court of Appeals in State v. Noles, 12 N.C. App. 676, 184 S.E.2d 409 (1971), and State v. Rush, 158 N.C. App. 738, 582 S.E.2d 37 (2003). Holmes, 361 N.C. at 412-13, 646 S.E.2d at 355. The Court of Appeals in Noles addressed facts similar to those presently before us: in an appeal from the revocation of his probation, the defendant in Noles attacked \u201cthe validity of the warrant upon which he was originally tried . . . because there was no affirmative showing on the record that the defendant entered a plea of guilty understandingly and voluntarily.\u201d Noles, 12 N.C. App. at 678, 184 S.E.2d at 410. The Court of Appeals concluded that the defendant\u2019s appeal was not proper because \u201cinquiries [when appealing from an order activating a suspended sentence] 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.\u201d Id. (citing State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970)). The Court of Appeals thus concluded that \u201c[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.\u201d Id.\nMore than thirty years later, the Court of Appeals again addressed similar facts. The defendant in State v. Rush entered into a plea agreement with the State in which the defendant \u201cwould receive two 24-month suspended sentences.\u201d Rush, 158 N.C. App. at 739, 582 S.E.2d at 38. But the judgment documents suspending the sentences and signed by the defendant stated that the two sentences being suspended were \u201cfor a minimum term of 24 months and a maximum term of 38 months.\u201d Id. The defendant later violated her probation, and the trial court activated the sentences as stated in the judgment forms. 158 N.C. App. at 740, 582 S.E.2d at 38. On appeal from the revocation of the defendant\u2019s probation, the Court of Appeals determined that \u201cby failing to exercise any of her options\u201d to assert that the judgment entered was inconsistent with her plea agreement, the defendant\u2019s appeal \u201camounted] to an impermissible collateral attack on the initial judgment.\u201d Id. at 741, 582 S.E.2d at 39 (citing Notes, 12 N.C. App. at 678, 184 S.E.2d at 410) (summarizing the defendant\u2019s options to assert error as (1) filing a motion under N.C.G.S. \u00a7 15A-1024 to withdraw her guilty plea based on the judgments being inconsistent with the plea agreement, (2) appealing within ten days after entry of the judgments if her grounds of appeal fell under N.C.G.S. \u00a7 15A-1444, and (3) filing a petition for writ of certiorari as permitted under section 15A-1444(e)). In Holmes this Court summarized the Court of Appeals\u2019 determination in Rush to be that \u201cby 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.\u201d Holmes, 361 N.C. at 413, 646 S.E.2d at 355 (citing Rush, 158 N.C. App. at 741, 582 S.E.2d at 39).\nIn finding Noles and Rush to be persuasive, this Court observed that the defendant in Holmes could have appealed his initial judgments, but failed to do so. Id. The Court thus concluded that the defendant\u2019s attempt to subsequently attack the sentences imposed in those original judgments in an appeal from the order revoking his probation and activating his sentence was \u201can impermissible collateral attack on the original judgments.\u201d Id.\nThe reasoning this Court found persuasive in Holmes is also persuasive here. As in Holmes, defendant failed to appeal from his original judgment. He may not now appeal the matter collaterally via a proceeding contesting the activation of the sentence imposed in the original judgment. As such, defendant\u2019s present challenge to the validity of his original conviction is improper. Because a jurisdictional challenge may only be raised when an appeal is otherwise proper, Absher, 329 N.C. at 265 n.l, 404 S.E.2d at 849 n.l, we hold that a defendant may not challenge the jurisdiction over the original conviction in an appeal from the order revoking his probation and activating his sentence. The proper procedure through which defendant may challenge the facial validity of the original indictment is by filing a motion for appropriate relief under N.C.G.S. \u00a7 15A-1415(b) or petitioning for a writ of habeas corpus. Our holding here does not prejudice defendant from pursuing these avenues.\nFor the reasons stated above, we reverse the decision of the Court of Appeals on the issue of whether defendant\u2019s appeal may be based solely upon a challenge to the trial court\u2019s original jurisdiction and instruct the Court of Appeals to reinstate the judgment of the trial court revoking defendant\u2019s probation on the felony larceny count in case number 09 CRS 53255. The holding by the Court of Appeals addressing the trial court\u2019s clerical error in activating a sentence that defendant had already served is not before this Court and remains undisturbed.\nREVERSED IN PART.\n. State v. Neeley, 307 N.C. 247, 249, 297 S.E.2d 389, 391 (1982), establishes that a defendant may raise a constitutional claim of right to counsel for the first time after a suspended sentence has been activated. Id. As we observed in Neeley, however, our holding there \u201conly addresses those circumstances in which a defendant seeks to challenge the validity of an original uncounseled prison sentence at a later time when the prison sentence is activated.\u201d 307 N.C. at 250, 297 S.E.2d at 391 (emphasis added).", "type": "majority", "author": "BEASLEY, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, and Joseph L. Hyde, Assistant Attorney General, for the State-appellant.", "Staples S. Hughes, Appellate Defender, by Jason Christopher \u25a0 Yoder, Assistant Appellate Defender, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM HERBERT PENNELL, IV\nNo. 371PA13\n(Filed 12 June 2014)\nAppeal and Error \u2014 appealability\u2014jurisdiction\u2014challenge to indictment underlying original conviction \u2014 activation of suspended sentence \u2014 impermissible collateral attack\nThe Court of Appeals erred by concluding that a defendant may challenge the jurisdictional validity of the indictment underlying his original conviction on direct appeal from the activation of a suspended sentence. A challenge to the validity of the original judgment constituted an impermissible collateral attack. The proper procedure through which defendant may challenge the facial validity of the original indictment is by filing a motion for appropriate relief under N.C.G.S. \u00a7 15A-1415(b) or petitioning for a writ of habeas corpus. The Court of Appeals was instructed to reinstate the judgment of the trial court revoking defendant\u2019s probation on the felony larceny count in case number 09 CRS 53255.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals,_N.C. App._, 746 S.E.2d 431 (2013), affirming in part, vacating and remanding in part, and arresting in part judgments entered on 5 June 2012 by Judge Christopher W. Bragg in Superior Court, Iredell County. Heard in the Supreme Court on 19 February 2014.\nRoy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, and Joseph L. Hyde, Assistant Attorney General, for the State-appellant.\nStaples S. Hughes, Appellate Defender, by Jason Christopher \u25a0 Yoder, Assistant Appellate Defender, for defendant-appellee." }, "file_name": "0466-01", "first_page_order": 506, "last_page_order": 512 }