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					-2No. COA07-1139 NORTH CAROLINA COURT OF APPEALS *************************************** STATE OF NORTH CAROLINA v. JERAMIE L. McSWEENEY ) ) ) ) ) From Forsyth County 05-CrS-26421, 61026 DISTRICT



STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW As an appeal from a final judgment of a superior court, this appeal lies of right to the Court of Appeals according to the provisions of N.C.G.S. § 7A-27(b). STATEMENT OF THE CASE In January 2006, a Forsyth County grand jury returned true bills of indictment charging the defendant, Jeramie McSweeney, with felony larceny as an habitual felon. R 4-6. The Hon.

Ronald E. Spivey presided over Mr McSweeney’s trial during the 2 April 2007 criminal session of Forsyth County Superior Court.

-3The petit jury found Mr McSweeney guilty of larceny. Mr McSweeney then admitted his status as an habitual felon. 11. The trial court entered judgment on the verdict and R 7. R 8-

admission and committed Mr McSweeney to the custody of the North Carolina Department of Corrections for a term of a minimum of one hundred fifty-one (151) months to a maximum of one hundred ninety-one (191) months. R 17-18.

Mr McSweeney gave notice of appeal in open court on 4 April 2007. R 19. The clerk notified the court reporter of the trial

court’s order for the production of the transcript on 5 April 2007, and it was delivered to the parties on 10 May 2007. After an extension granted by the trial court, Mr McSweeney served a proposed record on appeal on the state on 27 July 2007. R 25. 26. The record on appeal was settled on 29 August 2007. R

Mr McSweeney filed the record on appeal by mail on 13 R 27. The Office of the Clerk of the North

September 2007.

Carolina Court 20 September 2007 and gave notice in writing that same day. By order dated 19 October 2007, this court allowed Mr

McSweeney to file his brief on or before 21 November 2007. STATEMENT OF THE FACTS On 30 August 2005, at about 4:00 p.m., Jeramie McSweeney went into a jewelry store in Winston-Salem and asked to look at engagement rings. After being shown a large, yellow-diamond

ring, Mr McSweeney asked the clerk to hold it aside so that his brother could inspect it. T 69-70.

About an hour later, a man named Charles Hall went into the

-4store and said that he was there to inspect the ring his brother had selected. T 83. While examining the ring with a magnifying T 79, 84-85,

loupe, Mr Hall ran out of the store with the ring. 87, 121, 122.

The police connected Mr McSweeney to Mr Hall after discovering that Mr McSweeney had been seen, earlier on August 30th, getting into a car registered to Mr Hall in front of another jewelry store. T 27, 48-49, 121. The magistrate issued

a warrant for Mr McSweeney’s arrest about a week later, on 8 September 2005. R 2-3.

A Forsyth County grand jury met on 4 January 2006 and returned true bills alleging that Mr McSweeney had aided and abetted Mr Hall’s theft of the ring as an habitual felon due to his three prior, consecutive felony convictions. The indictment

listed “UNDERLYING FELONY NUMBER 2” as being an Iredell County larceny contained in file number 00-CrS-53535. R 4, 5-6.

When Mr McSweeney admitted his status as an habitual felon on 4 April 2007, the state presented the indictment and judgment contained in Iredell County 00-CrS-53535 to the trial court as part of the establishment of a factual basis for the acceptance of the plea. The trial court accepted these documents and made T 200; R 12, 13-16. Based on Mr

them part of the file.

McSweeney’s admission and the factual basis presented by the state, the trial court adjudicated Mr McSweeney an habitual felon and sentenced him accordingly. R 17-18.

The indictment contained in Iredell County 00-CrS-53535

-5alleged that Mr McSweeney stole another person’s various items of personal property “having a total value of $1,000.00 dollars [sic]…”. R 12. ARGUMENT Larceny of goods “having a total value of $1,000.00” is a misdemeanor. N.C.G.S. § 14-72(a). Because one of Mr McSweeney’s

three underlying felonies was a misdemeanor, not a felony, the trial court did not have jurisdiction of the offense of habitual felon and this court must vacate the judgment. I. THE TRIAL COURT DID NOT HAVE JURISDICTION OF THE OFFENSE OF HABITUAL FELON. ASSIGNMENTS OF ERROR NO. 1 (R 24) Standard of Review: Jurisdiction is a question of law, and this court must conduct a de novo review of the trial court’s finding that it had jurisdiction over the subject matter of the habitual felon indictment. Bache Halsey Stuart, Inc. v.

Hunsucker, 38 N.C. App. 414 (1978), cert. denied, 296 N.C. 583 (1979); In re Green, 67 N.C. App. 501 (1984). The trial court had before it the Iredell County indictment that alleged that Mr McSweeney had stolen exactly $1,000 worth of property. This indictment was vital to the state’s allegation Because the Iredell

that Mr McSweeney was an habitual felon.

County indictment, on its face, only alleged a misdemeanor, the felony judgment entered on it was a nullity. Because the Iredell

County felony judgment was a nullity, the habitual felon

-6indictment in Forsyth County only alleged two prior felonies and did not give the trial court subject matter jurisdiction of the offense of habitual felon. The trial court erred by entering

judgment on the habitual felon indictment. Our General Assembly has defined felony larceny thus: “Larceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony.… [L]arceny of property,…where the

value of the property or goods is not worth more than one thousand dollars ($1,000), is a Class 1 misdemeanor.” 14-72(a). N.C.G.S. §

Our appellate courts have long held that a felony

larceny indictment must allege that the stolen goods were worth more than the statutory amount (absent an allegation that they were stolen under the circumstances listed in N.C.G.S. § 1472(b)). See, e.g., State v. Fowler, 266 N.C. 667 (1966); State

v. Jones, 275 N.C. 432 (1969); State v. Benfield, 278 N.C. 199 (1971). Since the Iredell County indictment did not allege an

amount greater than $1,000, as a matter of law it alleged misdemeanor, not felony, larceny. This failure to allege an essential element of the crime of felony larceny is fatal to the indictment’s validity. A criminal

pleading must “assert[ ] facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.” N.C.G.S. § 15A-924(a)(5). The indictment in

Iredell County 00-CrS-53535 does not comply with 15A-924 since it

-7does not assert the necessary fact that the stolen goods were worth more than $1,000. Our appellate courts have long held that an insufficient indictment deprives the court of subject matter jurisdiction of the offense. “There can be no trial, conviction, or punishment In the

for a crime without a formal and sufficient accusation.

absence of an accusation, the court acquires no jurisdiction whatever, and if it assumes jurisdiction, a trial and conviction are a nullity.” McClure v. State, 267 N.C. 212, 215 (1966). The

conviction and judgment in Iredell County 00-CrS-53535 is void ab initio. Mr McSweeney’s guilty pleas in Iredell County and Forsyth County could not have waived the jurisdictional defect in the indictments. State v. Neville, 108 N.C. App. 330, 333 (1992).

By knowingly and voluntarily pleading guilty, an accused waives all defenses other than the sufficiency of the indictment. Nevertheless, when an indictment is alleged to be facially invalid, thereby depriving the trial court of jurisdiction, the indictment may be challenged at any time. “Our Supreme Court has stated that an indictment is fatally defective when the indictment fails on the face of the record to charge an essential element of the offense.” State v. McGee, 175 N.C. App. 586, 587-88 (citations omitted), disc. review denied and appeal dismissed, 360 N.C. 542 (2006). Pursuant to these authorities, Mr McSweeney hereby challenges the indictments in Iredell County 00-CrS-53535 and Forsyth County 05-CrS-26421, based on their facial invalidity, and moves to dismiss them. N.C.G.S. §§ 15A-924(e), -952(b), -

952(d), -954(a)(8), -954(a)(10) and –954(c); State v. Wilson, 128

-8N.C. App. 688, 691, disc. rev. improv. allowed, 349 N.C. 289 (1998). II. THE TRIAL COURT ERRED IN ACCEPTING MR McSWEENEY’S GUILTY PLEA TO HABITUAL FELON STATUS. ASSIGNMENT OF ERROR NO. 2 (R 24) Standard of Review: Whether the trial court acted contrary to a statutory mandate is a question of law, reviewed de novo by this court, and is automatically preserved for appeal despite the lack of objection at trial. State v. Love, 156 N.C. App. 309,

318 (2003) (internal citations omitted); N.C.G.S. §§ 15A-1442(5b) and -1446(d)(18). “Habitual felon” is a status, not a crime. However, our

statutes and case law require a jury verdict finding the status or a proper plea of guilty to the status. N.C.G.S. § 14-7.5;

State v. Edwards, 150 N.C. App. 544, 550 (2002). The provisions of N.C.G.S. § 15A-1022 govern the procedure the superior court must follow when a defendant pleads guilty. N.C.G.S. § 15A-1022(c) states: “The judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea.” Mr McSweeney entered a guilty plea to the habitual felon indictment, stipulating that a factual basis existed. R 8-11. T

The trial court found a factual basis for accepting the plea. 201, R 9. Because the trial court had before it the facially-

invalid indictment in Iredell County 00-CrS-53535, the trial

-9court erred in determining that a factual basis supported Mr McSweeney’s guilty plea. In State v. Agnew, 361 N.C. 333, 337-8 (2007), our Supreme Court examined a similar issue and decided that the trial court had erred in accepting a guilty plea “because there was nothing in the record to support an independent judicial determination of a factual basis for the plea.” June 2004. Mr Agnew entered a guilty plea in

His lawyer stipulated to the existence of a factual

basis, and the trial court found that this stipulation supported its determination that there was a sufficient factual basis for the entry of the plea. Id. at 334. Mr Agnew came back to court

in March 2005 to be sentenced, and the trial court entered judgment after the prosecutor summarized the case’s facts. at 334-335. On appeal, Mr Agnew argued that the trial court had violated the provisions of N.C.G.S. § 15A-1022(c) in determining that there was a factual basis for the entry of his guilty plea. The Id.

state argued that “the Transcript of Plea taken together with the indictment and defense counsel’s stipulation provided adequate information for the trial court to determine there was a factual basis.” Id. at 336. The Agnew court disagreed with the state’s

argument, reversed a unanimous Court of Appeals panel, and vacated the judgment, holding that a trial court’s determination of a factual basis for a guilty plea must be an “independent judicial determination”. Id. at 337-338.

The Agnew court’s holding and logic, applied to the present

-10case’s facts, compel the same outcome. an independent judicial determination. The Agnew court required A stipulation and a

transcript of plea and an indictment are not enough to make this determination. record. In the present case, the trial court had before it the facially-invalid Iredell County felony larceny indictment, and one must presume that the trial court examined it. Nevertheless, Rather, the trial court must look at the entire

the trial court determined that a factual basis existed for the acceptance of Mr McSweeney’s guilty plea. This was error because

the independent evidence in the record, the Iredell County indictment, directly contradicted this determination. The trial

court’s conclusion that there was a factual basis for the plea could not have been an independent judicial determination, and this court must vacate the judgment entered on the guilty plea.

CONCLUSION Mr McSweeney respectfully asks this court to vacate the judgment entered 4 April 2007. Respectfully submitted on this the 20th day of November, 2007. ____________________________ Russell J. Hollers III Attorney for Appellant P.O. Box 1131 Carrboro, NC 27510 (919) 967-5300 CERTIFICATE OF SERVICE

-11This is to certify that on the date below, I served the State of North Carolina with the foregoing Defendant-Appellant's Brief by depositing a copy thereof in a postpaid wrapper in a Post Office or official depository under the exclusive care and custody of the United States Post Office Department, addressed to Tracy Curtner, Assistant Attorney General, Tort Claims Section, N.C. Department of Justice, P.O. Box 629, Raleigh, NC 0629. This date:___________________. _____________________________ Russell J. Hollers III Attorney for Appellant P.O. Box 1131 Carrboro, NC 27510 (919) 967-5300 27602-

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