Appeal by defendant from judgment
(See footnote 1)
dated 8 August 2001 by
Judge Lindsay R. Davis in Forsyth County Superior Court. Heard in
the Court of Appeals 18 February 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
Ligon and Hinton, by Lemuel W. Hinton, for defendant
appellant.
BRYANT, Judge.
Christopher 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.
On 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 delivermarijuana, 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This indictment was superceded by an indictment dated 25 June 2001,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. §
90-95(a)(3) as a fourth charge. According to this charge,
“defendant . . . 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.”
__________________________
The issues raised are whether: (I) the superceding indictment
charging defendant with possession of marijuana was fatally
defective because it omitted the word “feloniously” and (II) the
habitual felon indictment, having been returned two weeks before
the substantive felony indictment, is void.
I
With 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 “feloniously,” 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's holding “that
bills of indictment charging felonies, in which there has been a
failure to use the word 'feloniously,' are fatally defective,
unless the Legislature otherwise expressly provides.”
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's case,
State v. Callett, which
explained that the need to use the word “feloniously” in a felony
indictment evolved “[s]ince all criminal offenses punishable with
death or imprisonment in a State prison were by . . . section [14-
1] declared felonies.”
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. § 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. § 14-1 (1953) (amended 1969). In 1969, however, the
statute was changed and now defines a felony as “a 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's
prison; or (4) [i]s denominated as a felony by statute.” N.C.G.S.
§ 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 “feloniously” in indictment
“unless the Legislature otherwise expressly provides”). 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 “feloniously,” provided the indictment gives notice of thestatute denominating the alleged crime as a felony. Thus, while
its inclusion is still the better practice, the word “feloniously”
is not required for a valid felony indictment if the indictment
references the specific statute making the crime a felony.
In this case, the indictment charging defendant with
possession of marijuana only refers to N.C. Gen. Stat. § 90-
95(a)(3), which makes it “unlawful for any person . . . [t]o
possess a controlled substance” and does not state whether this
crime is a felony or a misdemeanor. N.C.G.S. § 90-95(a)(3) (2001).
The charge in the indictment does state “defendant . . . 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.” The
indictment thus contains references to N.C. Gen. Stat. § 90-
95(d)(4), which provides “[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.” N.C.G.S. § 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 “feloniously” or to state the
statutory section indicating the felonious nature of the charge, isinvalid 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.
II
Defendant next challenges the validity of the habitual felon
indictment. The Habitual Felons Act, N.C.G.S. §§ 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.
State v. Allen, 292 N.C. 431, 432-33, 233 S.E.2d 585,
586-87 (1977). “The effect of such a proceeding 'is to enhance the
punishment of those found guilty of crime who are also shown to
have been convicted of other crimes in the past.'”
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
“does not authorize an independent proceeding to determine [the]
defendant's status as a habitual felon separate from the
prosecution of a predicate substantive felony.”
State v. Cheek,
339 N.C. 725, 727, 453 S.E.2d 862, 863 (1995). The “habitual felon
indictment is [necessarily] ancillary to the indictment for the
substantive felony and cannot stand on its own.”
State v.
Winstead, 78 N.C. App. 180, 182, 336 S.E.2d 721, 723 (1985);
seeCheek, 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 “all 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”).
In 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 “pending felony prosecution to which the habitual felon
proceeding could attach.”
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
(“'[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”) (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.
Vacated in part and remanded for resentencing. Judges HUNTER and ELMORE concur.
Footnote: 1