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					NO. COA07-419                               DISTRICT TWENTY THREE

                 NORTH CAROLINA COURT OF APPEALS
                   *******************************

STATE OF NORTH CAROLINA                     )
                                            )
            V.                              )   From Yadkin
                                            )
BRIAN KEITH NANCE and                       )
KENNETH MAYNARD FLIPPIN                     )

               *****************************
          DEFENDANT-APPELLANT FLIPPIN’S BRIEF
 OR PETITION FOR WRIT OF CERTIORARI IN THE ALTERNATIVE
               *****************************

                       QUESTIONS PRESENTED

I.    DID THE TRIAL COURT ERR BY ACCEPTING MR.
      FLIPPIN’S GUILTY PLEAS AND ENTERING JUDGMENTS
      FOR FELONIOUS BREAKING AND ENTERING AND
      FELONIOUS LARCENY IN 05 CRS 51775 AND 05 CRS 51778
      WHERE THESE ARE DUPLICATE INDICTMENTS?

II.   DID THE TRIAL COURT ERR BY ACCEPTING MR.
      FLIPPIN’S GUILTY PLEAS AND ENTERING JUDGMENTS
      FOR LARCENY OF A MOTOR VEHICLE IN 05 CRS 51718
      AND FIRST DEGREE BURGLARY IN 05 CRS 51735 WHERE
      INSUFFICIENT FACTUAL BASES WERE PRESENTED FOR
      THESE PLEAS?

                     STATEMENT OF THE CASE

      Kenneth Maynard Flippin was indicted on January 23, 2006 for 13

counts of felonious breaking and entering, 12 counts of felonious larceny, 2

counts of first degree burglary, safecracking, 2 counts of injury to real



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property, larceny of a motor vehicle and attaining the status of a habitual

felon. Mr. Flippin also was indicted on March 27, 2006 for felonious

breaking and entering and felonious larceny.

        On August 23, 2006, Mr. Flippin appeared before the Honorable John

O. Craig, III, Superior Court Judge presiding, and pled guilty without benefit

of a plea arrangement to 14 counts of felonious breaking and entering, 13

counts of felonious larceny, 2 counts of first degree burglary, safecracking, 2

counts of injury to real property and larceny of a motor vehicle. Mr. Flippin

also admitted to being a habitual felon.

        Mr. Flippin was sentenced as a Level VI habitual felon to a

consolidated, presumptive active term of 167 months minimum, 210 months

maximum in the North Carolina Department of Correction to run at the

expiration of a previous habitual felon sentence he was serving.

        Mr. Flippin gave written Notice of Appeal on or about August 27,

2006.

        The joint record on appeal was filed with the North Carolina Court of

Appeals on April 12, 2007 and docketed on April 19, 2007.

  STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

        This is an appeal from the final judgment of the superior court

pursuant to N.C.G.S. § 7A-27(b). In the event that this Court deems that Mr.



                                       2
Flippin has no appeal of right, he requests that this brief be treated as a

Petition for Writ of Certiorari in the alternative.       N.C.G.S. § 7A-32(c);

N.C.R. App. P. 21 (a); State v. Poore, 172 N.C.App. 839, 841, 616 S.E.2d

639, 640 (2005).

                        STATEMENT OF THE FACTS

      Mr. Flippin stipulated through his attorney that there was a factual

basis for his plea. The factual basis had been previously presented to the

trial court during Mr. Flippin’s co-defendants’ plea hearings on August 22,

2006.1 V.II Tp. 6.

      Detective Robin Moxley of the Yadkin County Sheriff’s Department,

(see e.g., rp. 37), presented the following factual basis to the trial court on

August 22, 2006:

           Jesse Matthews was 87 years old and asleep in her residence.
            She woke up at approximately 3:00 a.m. and noticed that the
            cabinet doors were open in the kitchen. Entry was gained by
            breaking a back bedroom window. Stolen were two shotguns,
            mugs, vegetables and a large Teddy bear. Tpp. 9-10.

           William Ellerby’s residence on Hickory Road was broken into
            on August 17, 2005. Mr. Flippin and co-defendant Nance
            admitted to taking items from this residence. Tp. 10.

           Doris Mallou’s residence was broken into on June 6, 2005.
            Blood pressure cuffs were taken. Tp. 11.


1
  It does not appear that Mr. Flippin was present for the August 22nd
hearing. See generally, Tpp. 1-28.

                                        3
             Churches were broken into. Oak Grove Baptist Church and
              Marantha Baptist Church were broken into on an unspecified
              date. Huntsville Baptist Church was broken into twice in May
              16, 2005 and June 4, 2005. Baltimore Baptist Church was
              broken into on June 25, 2005. Mountainview Baptist Church
              was broken into on May 24, 2005. Shilo Baptist Church was
              broken into on May 19, 2005. A safe was stolen from one of
              the churches. Tp. 11.

          Detective S.K. Shore of the Yadkin County Sheriff’s Department,
(see e.g., rp. 38), gave the following additional factual basis to the trial

court:

             Mr. Flippin admitted entering the David Wolfe residence.
              At least 57 guns were stolen. Approximately $38,000 worth of
              items was missing. Tp. 12.

             The residence of 89-year-old Vivian Taylor was broken into.
              Electrical power to the residence was cut by removing the meter
              box. The defendants fled without taking anything when it was
              discovered that Ms. Taylor was present in the residence. Tpp.
              12-3.

             A weed eater and leaf blower were stolen from the Shilo Baptist
              Church. Tp. 13.

         Detective Tim Hutchins of the Yadkin County Sheriff’s Department,

(see e.g., rp. 24), indicated to the trial court:

             Charles Robert Wooten’s mother’s house was unoccupied, but
              two loads of antique furniture were removed. Tp. 13.

             Judith Royall’s house, which was unoccupied, was broken into
              twice. Various items, including old coins, were stolen. Tp. 13.

The following also was presented as part of the factual basis:



                                         4
           Charles Wooten told the trial court that family keepsakes were
            stolen and his personal mementoes were destroyed. Tpp. 15-6.

           David Taylor indicated that the door to his mother’s home,
            presumably Vivian Taylor’s, was damaged. Tp. 16.

           Chester Wooten told the trial court that his mother’s house,
            presumably Judith Royall’s home, was broken into twice.
            Guns, old coins and family keepsakes were taken. Tpp. 16-7.

           Delores LaRue indicated that her home was ransacked to the
            point where she could not determine what property was stolen,
            broken or lost. Tpp. 17-18.

                               ARGUMENT

   I.     THE TRIAL COURT ERRED BY ACCEPTING MR.
          FLIPPIN’S  GUILTY   PLEAS   AND     ENTERING
          JUDGMENTS FOR FELONIOUS BREAKING AND
          ENTERING AND FELONIOUS LARCENY IN 05 CRS 51775
          AND 05 CRS 51778 AS THESE ARE DUPLICATE
          INDICTMENTS.

        Assignment of Error No. 1, Rp. 80; Rp. 38; Rp. 39; Rpp. 59-61.

        The indictment against Mr. Flippin in 05 CRS 51775 charging him

with felonious breaking and entering and felonious larceny, stated in

pertinent part:

              I.    The jurors for the State upon their oath present that
                    between the 15th day of August, 2005 and the 27th day
                    of August, 2005, in the county named above the
                    defendant named above unlawfully, willfully and
                    feloniously did break and enter a building occupied by
                    David Wolfe, used as a residence, located at 4653 Hwy
                    67, Boonville, North Carolina, 27011, with the intent to
                    commit a felony therein: larceny.


                                      5
             II.   The jurors for the State upon their oath present that
                   between the 15th day of August, 2005 and the 27th day
                   of August, 2005, in the county named above the
                   defendant named above unlawfully, willfully and
                   feloniously did steal, take, and carry away 57 guns, 5
                   knives, 3 golf bags with clubs, 2 rolex watches and
                   U.S. currency, the personal property of David Wolfe,
                   such property having a value of $23,052.00, pursuant to a
                   violation of Section 14-54 of the General Statutes of
                   North Carolina.

Rp. 38. The indictment in 05 CRS 51778 also charges Mr. Flippin, through

language identical to 05 CRS 51775, with felonious breaking and entering of

David Wolfe’s residence and felonious larceny of the same personal

property during the same time period . Rp. 39. Mr. Flippin pled guilty to

the charges contained in both indictments. Rpp. 53-56. The trial court

subsequently consolidated all of the charges for sentencing and Mr. Flippin

was sentenced as a Level VI habitual felon to a term of imprisonment of 167

months minimum to 210 months maximum.                 The Judgment and

Commitment included the offenses of felonious breaking and entering and

larceny in 05 CRS 51775 and 51778. Rpp. 59-61.

      Mr. Flippin contends that the trial court should not have accepted his

guilty pleas to both indictments and should have entered judgment as to only

one of the felonious breaking and entering and larcenies of the Wolfe

residence.   Since the indictments in 05 CRS 51775 and 51778 were




                                     6
duplicative, any judgments entered for both of these indictments constituted

double jeopardy.

A.    Standard of Review.

      On appeal, the findings of the trial court are reviewed to determine if

such findings are supported by competent evidence in the record. The trial

court's conclusions of law are reviewed de novo. State v. Smith, 346 N.C.

794, 797, 488 S.E.2d 210, 212 (1997).

B. Legal Analysis.

      The Double Jeopardy Clause of the Fifth Amendment, applicable to

the States through the Fourteenth Amendment, protects individuals against

multiple punishments for the same offense. State v. Cameron, 283 N.C. 191,

198, 195 S.E.2d 481, 485-6 (1973). Jeopardy may attach upon the court's

acceptance of a plea of guilty. State v. Ross, 173 N.C.App. 569, 573, 620

S.E.2d 33, 36 (2005).

      The indictments in 05 CRS 51775 and 51778 charge the identical

offenses. Mr. Flippin’s guilty pleas and judgment as to the David Wolfe

breaking and entering and larceny charges therefore cannot stand as double

jeopardy protects against multiple punishments for the same offense. State

v. Seagroves, 78 N.C.App. 49, 57, 336 S.E.2d 684, 690 (1985). The fact that

concurrent, identical sentences were imposed in each of Mr. Flippin’s cases



                                      7
does not correct a violation of a defendant’s right against double jeopardy.

Id. The second of the two indictments, i.e., 05 CRS 51778, therefore should

be stricken. Id.

II.   THE TRIAL COURT ERRED BY ACCEPTING MR.
      FLIPPIN’S GUILTY PLEAS AND ENTERING JUDGMENTS
      FOR LARCENY OF A MOTOR VEHICLE IN 05 CRS 51718
      AND FIRST DEGREE BURGLARY IN 05 CRS 51735 SINCE
      INSUFFICIENT FACTUAL BASES WERE PRESENTED FOR
      THESE PLEAS.

      Assignments of Error Nos. 2 and 3, Rp. 80; Tpp. 12-13; Rp. 33; Rp. 40;
                                      Rpp. 59-61.


      The indictment in 05 CRS 51781 charged Mr. Flippin with felonious

larceny of a 1995 Buick Park Avenue automobile belonging to David Wolfe.

Rp. 40. Mr. Flippin pled guilty to this charge. Rpp. 53-56. Although a

factual basis was presented to the trial court as to the breaking and entering

and larceny of Mr. Wolfe’s residence, (tp. 12), no evidence was presented as

to the theft of any motor vehicle.

      Mr. Flippin also was charged by indictment in 05 CRS 51735 with first

degree burglary of Vivian Taylor’s residence and misdemeanor injury to her

real property. Rp. 33. Mr. Flippin pled guilty to these charges. Rpp. 53-56.

A factual basis was presented for breaking and entering and misdemeanor

injury to real property. Tpp. 12-3; Tp. 16. No evidence was presented,




                                     8
however, that the breaking and entering of the Taylor residence occurred

during nighttime.

      Mr. Flippin contends that the trial court should not have accepted his

guilty pleas and sentenced him for felonious larceny of a motor vehicle and

first degree burglary of the Taylor residence as there were insufficient factual

bases to support these charges.

A.    Standard of Review.

      On appeal, the findings of the trial court are reviewed to determine if

such findings are supported by competent evidence in the record. The trial

court's conclusions of law are reviewed de novo. State v. Smith, 346 N.C.

794, 797, 488 S.E.2d 210, 212 (1997).

B.    Legal Analysis.

      A plea of guilty involves the waiver of various fundamental rights such

as the privilege against self-incrimination, the right of confrontation and the

right to trial by jury. The legislature has sought to insure that such pleas are

entered into voluntarily and a product of informed choice. N.C.G.S. § 15A-

1022(a)(b). State v. Sinclair, 301 N.C. 193, 197, 270 S.E.2d 418, 421 (1980).

In addition, N.C.G.S. § 15A-1022(c) requires:

             The judge may not accept a plea of guilty or no contest without
             first determining that there is a factual basis for the plea. This
             determination may be based upon information including but not
             limited to:

                                       9
                    (1) A statement of the facts by the prosecutor.

                    (2) A written statement of the defendant.

                    (3) An examination of the presentence report.

                    (4) Sworn testimony, which may include reliable hearsay.

                    (5) A statement of facts by the defense counsel.

Sinclair, 301 N.C. at 197, 270 S.E.2d at 421(Emphasis added). A defendant's

bare admission of guilt contained in a plea transcript does not provide the

“factual basis” contemplated by N.C.G.S. § 15A-1022(c). Sinclair, 301 N.C.

at 199, 270 S.E.2d at 421.

      1.       No Factual Basis was Presented for Mr. Flippin’s Larceny of a
               Motor Vehicle Conviction.

      With the exception of the indictment, nothing appears in the record

regarding the theft of Mr. Wolfe’s 1995 Buick. Since no evidence of a motor

vehicle theft was presented, it was error for the trial court to accept Mr.

Flippin’s guilty to plea to larceny of a motor vehicle. N.C.G.S. § 15A-

1022(c); See State v. Weathers, 339 N.C. 441, 453, 451 S.E.2d 266, 273

(1994)(Error to accept guilty plea to failure to appear where there was no

evidence that defendant failed to appear when case called for trial). The

guilty plea and judgment for larceny of a motor vehicle should therefore be

vacated. Id.



                                      10
      2.    No Factual Basis was Presented that Mr. Flippin Committed First
            Degree Burglary of the Taylor Residence.

      “The common-law offense of burglary is committed when a person

breaks or enters into the dwelling house or sleeping apartment of another in

the nighttime with the intent to commit a felony therein.” State v. Little

163 N.C.App. 235, 239, 593 S.E.2d 113, 116 (2004)(Emphasis added). The

degree of burglary is determined by whether or not the dwelling is occupied

at the time of the offense. N.C.G.S. § 14-51.

      A factual basis was presented that the residence of Vivian Taylor was

broken into and injury to real property occurred. Electrical power to the

residence was cut by removing the meter box. A door was damaged. The

defendants fled without taking anything when it was discovered that Ms.

Taylor was present in the residence. Tpp. 12-3; Tp. 16.

      There was, however, no evidence presented that the breaking and

entering of the occupied Taylor residence occurred at nighttime. The State

therefore failed to establish that Mr. Flippin committed first degree burglary.

N.C.G.S. § 14-51; See State v. Rick, 342 N.C. 91, 102, 463 S.E.2d 182, 188

(1995)(Insufficient evidence that housebreaking occurred during nighttime to

support conviction for second degree burglary). The factual basis for Mr.

Flippin’s guilty plea to the first degree burglary of the Taylor residence was

deficient and the trial court should not have accepted same. N.C.G.S. § 15A-

                                     11
1022(c); Weathers, 339 N.C. at 453, 451 S.E.2d at 273. The guilty plea and

judgment for first degree burglary of the Taylor residence should therefore be

vacated. Id.

                                  CONCLUSION

      For the reasons set forth herein, Mr. Flippin is entitled to have vacated

one of his convictions for felonious breaking and entering and larceny of the

Wolfe residence, his conviction for larceny of the Wolfe motor vehicle and

his conviction of first degree burglary of the Taylor residence.

      Respectfully submitted, this the _____ day of June, 2007.



                          ______________________________
                          Brian Michael Aus
                          PO Box 1345
                          Durham, NC 27702
                          (919) 688-3704

                          ATTORNEY FOR DEFENDANT-APPELLANT




                                      12
                            VERIFICATION

      Brian Michael Aus, being first duly sworn, deposes and says under the

penalty of perjury that he is appellate counsel for Kenneth Maynard Flippin,

that he is familiar with the contents of the foregoing DEFENDANT-

APPELLANT’S BRIEF AND PETITION FOR WRIT OF CERTIORARI

IN THE ALTERNATIVE and, based on the information contained after

review of applicable court records and transcripts of this case, he verily

believes same to be true.

      This the ______ day of June, 2007.



                               _______________________(Seal)
                               Brian Michael Aus


STATE OF NORTH CAROLINA

COUNTY OF DURHAM

I, _____________________, a Notary Public for the County and State
aforesaid, hereby certify that BRIAN MICHAEL AUS personally appeared
before me this day and acknowledged the contents of the foregoing
DEFENDANT-APPELLANT’S BRIEF AND PETITION FOR WRIT OF
CERTIORARI IN THE ALTERNATIVE to be true based on information
and belief. Witness my hand and official stamp or seal, this the ________
day of June, 2007.


__________________________
NOTARY PUBLIC
My Commission expires:


                                    13
  CERTIFICATE OF COMPLIANCE WITH N.C.R. App. P. 28(j)(2)


      Undersigned counsel hereby certifies that this brief is in compliance
with N.C.R. App. P. 28(j)(2) in that it is printed in 14 point Times New
Roman font and contains no more than 8750 words in the body of the brief,
footnotes and citations included, as calculated by the word-processing
software used to prepare the brief, Microsoft Word.




                                _______________________________
                                Brian Michael Aus



              CERTIFICATE OF FILING AND SERVICE

       Undersigned counsel hereby certifies that he filed the original of the
foregoing brief by mailing it this day to the Clerk of the Court of Appeals,
and that he has served the foregoing brief upon all parties to the appeal by
mailing a copy thereof by United States Mail, first class postage affixed
thereto to counsel for the State of North Carolina:

      *****
      Assistant Attorney General
      PO Box 629
      Raleigh, NC 27602-0629.


      This the ______ day of June, 2007.




                                _____________________________
                                Brian Michael Aus



                                     14

				
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