Firearms and Other Weapons_status as convicted felon_prayer for judgment continued
A defendant who pled guilty to felony sale and delivery of a controlled substance and
felony conspiracy to sell a controlled substance and received a prayer for judgment continued for
those charges was a convicted felon for purposes of N.C.G.S. § 14-404 and was thus not entitled
to obtain a permit to purchase a handgun.
Judge Levinson dissenting.
Theodore M. Molitoris for plaintiff-appellee.
Attorney General Roy Cooper, by Assistant Attorney General
Lorrin Freeman and Assistant Attorney General Ashby Ray, for
the State.
TIMMONS-GOODSON, Judge.
The State of North Carolina (“the State”) appeals the entry of
summary judgment in favor of Donald Claude Friend (“plaintiff”) in
a declaratory judgment action. Because plaintiff was a convicted
felon for the purposes of N.C. Gen. Stat. § 14-404, we reverse.
The facts and procedural history pertinent to the instant
appeal are as follows: In 1980, plaintiff was charged in Forsyth
County with possession with intent to sell and deliver a controlled
substance, sale and delivery of a controlled substance, and
conspiracy to sell and deliver a controlled substance. On 24 March
1981, plaintiff entered a plea of guilty to misdemeanor possessionof a controlled substance, felony sale and delivery of a controlled
substance, and felony conspiracy to sell a controlled substance.
Plaintiff received a suspended sentence on the misdemeanor charge,
and a prayer for judgment continued was entered with regard to the
two felony charges.
Pursuant to N.C. Gen. Stat. § 14-403, on 31 October 2003,
plaintiff applied for a permit to purchase a pistol in Forsyth
County. In response to a question on the permit application,
plaintiff indicated that he had not previously been convicted of a
felony. The Forsyth County Sheriff's Office subsequently denied
plaintiff's application, noting that plaintiff had previously been
convicted for felony sale and delivery of a controlled substance.
On 11 November 2003, plaintiff was indicted for perjury and
attempting to obtain property by false pretenses in connection with
the pistol purchase permit application. The charges were dismissed
on 5 December 2003. On 17 December 2003, plaintiff filed a
declaratory judgment complaint against the State, seeking to
determine “his status as a 'convicted felon' and his entitlement to
lawfully obtain a handgun permit.” The declaratory judgment
complaint requested that the trial court enter a judgment
adjudicating the following:
1. That this plaintiff is not a “convicted
felon” under the laws of this State; and
2. That the plaintiff is entitled to all
privileges and responsibilities guaranteed by
United States of America and State of North
Carolina citizenship; and
3. That the plaintiff is entitled to obtain a
handgun permit from the Forsyth County, NorthCarolina Sheriff's Department or any other
lawful jurisdiction within the State of North
Carolina; and
4. For such other and further relief as to
the Court seems just and proper.
On 22 January 2004, the State filed a motion requesting
summary judgment in its favor as well as dismissal of plaintiff's
complaint for failure to join a necessary party. On 30 January
2004, plaintiff moved the trial court to award summary judgment in
his favor and to grant him the relief requested in the declaratory
judgment complaint. On 2 March 2004, the trial court entered a
declaratory judgment containing the following pertinent findings of
fact:
4. The Judgment for “Prayer for Judgment
Continued from term to term to term” in the
felony guilty pleas was not a “conviction”
with respect to the two felony guilty pleas
entered.
5. The plaintiff is not a “convicted felon”
under the laws and the Constitution of the
State of North Carolina.
6. The plaintiff is entitled to a handgun
permit in Forsyth County or any other
territorial jurisdiction.
Based upon these findings of fact, the trial court awarded summary
judgment in plaintiff's favor and denied the State's motion to
dismiss plaintiff's complaint. The declaratory judgment contains
the following pertinent decrees:
3. The plaintiff is adjudged to not be a
“convicted felon” under the Constitution or
the laws of the State of North Carolina; and
4. The plaintiff is entitled to apply for and
obtain a handgun permit in Forsyth County,
State of North Carolina or any otherterritorial jurisdiction.
The State appeals.
(b) Prior convictions which cause
disentitlement under this section shall only
include:
(1) Felony convictions in North Carolina
that occur before, on, or after December
1, 1995; and
. . . .
When a person is charged under this section,
records of prior convictions of any offense,
whether in the courts of this State, or in the
courts of any other state or of the United
States, shall be admissible in evidence for
the purpose of proving a violation of this
section. The term “conviction” is defined as
a final judgment in any case in which felony
punishment, or imprisonment for a term
exceeding one year, as the case may be, is
permissible, without regard to the plea
entered or to the sentence imposed. A
judgment of a conviction of the defendant or a
plea of guilty by the defendant to such an
offense certified to a superior court of this
State from the custodian of records of any
state or federal court shall be prima facie
evidence of the facts so certified.
N.C. Gen. Stat. § 14-415.1(b).
In the instant case, the trial court concluded that
plaintiff's pleas of guilty to felony sale and delivery of a
controlled substance and felony conspiracy to sell a controlled
substance did not result in a “conviction” because plaintiff
received a prayer for judgment continued with respect to thecharges. However, we note that in State v. Sidberry, 337 N.C. 779,
448 S.E.2d 798 (1994), the defendant argued that a prayer for
judgment continued did not constitute a final judgment and should
not be treated as a conviction for the purposes of N.C. Gen. Stat.
§ 8C-1, Rule 609. Citing the well-established rule that “'a plea
of guilty, freely, understandingly, and voluntarily entered, is
equivalent to a conviction of the offense charged[,]'” our Supreme
Court concluded that the defendant's prior pleas of guilty to sale
and delivery of cocaine, although continued pending disposition of
a murder charge, could be used to attack the defendant's
credibility when he testified during the murder trial. Id. at 782,
448 S.E.2d at 800 (quoting State v. Watkins, 283 N.C. 17, 27, 194
S.E.2d 800, 808, cert. denied, 414 U.S. 1000, 38 L. Ed. 2d 235
(1973)). Similarly, in State v. Hatcher, 136 N.C. App. 524, 524
S.E.2d 815 (2000), the defendant argued that the trial court erred
in computing his prior record level by assessing points to a charge
to which he pled no contest and for which prayer for judgment was
continued. This Court noted that, for the purposes of the Fair
Sentencing Act, a person is convicted “'when he has been adjudged
guilty or has entered a plea of guilty or no contest[,]'” and
“formal entry is not required to have a conviction.” Id. at 527,
524 S.E.2d at 817 (quoting N.C. Gen. Stat. § 15A-1331(b) (1997)).
“Consequently,” we concluded that the defendant “was convicted of
the prior offense when he entered the plea of no contest even
though no final judgment had been entered.” Hatcher, 136 N.C. App.
at 527, 524 S.E.2d at 817; see Britt v. North Carolina Sheriffs'Educ. & Training Stds. Comm'n, 348 N.C. 573, 576-77, 501 S.E.2d 75,
77 (1998) (concluding that a plea of no contest to misdemeanor
obstruction of justice was a “conviction” for purposes of the
petitioner's deputy sheriff's certification, despite the trial
court's entry of a prayer for judgment continued).
Plaintiff contends that these cases do not apply to the Felony
Firearms Act and are instead limited to the statutes discussed
therein. However, plaintiff provides no authority for this
contention, and we note that in State v. Watts, 72 N.C. App. 661,
325 S.E.2d 505, disc. review denied, 313 N.C. 611, 332 S.E.2d 83
(1985), the defendant argued that evidence of his “no contest” plea
in a prior case was insufficient to prove that he had been
previously convicted of a felony under N.C. Gen. Stat. § 14-415.1.
After reviewing the statute, this Court concluded that “the plain
words of th[e] statute require[] us to hold that if a defendant
enters a plea, including a plea of no contest, so that a felony
judgment or imprisonment for more than two years may be imposed[,]
then it constitutes a conviction under G.S. 14-415.1.” Id. at 663,
325 S.E.2d at 506. In the instant case, plaintiff pled guilty to
the sale and delivery of a controlled substance and conspiracy to
sell a controlled substance, both felony charges. We conclude that
the reasoning of Watts and the above-cited cases are both
persuasive in and applicable to the instant case.
Under N.C. Gen. Stat. § 14-415.1(b), a conviction is a
judgment in which felony judgment or imprisonment for more than one
year is permissible, “without regard to the plea entered or to thesentence imposed.” Under N.C. Gen. Stat. § 14-415.1(c), the
indictment charging an individual with possession of a firearm by
a felon must set forth the date the prior offense was committed,
the type of offense and the penalty thereof, “the date that the
defendant was convicted or plead guilty to such offense, the
identity of the court in which the conviction or plea of guilty
took place and the verdict and judgment rendered therein.”
(emphasis added). Thus, by its owns terms, the statute prohibiting
the possession of a firearm by a felon contemplates an individual
being indicted for the crime regardless of the sentence rendered by
the trial court. Furthermore, we note that under N.C. Gen. Stat.
§ 14-415.12(b) (2003), a sheriff is required to deny a concealed
handgun permit to any applicant who “[h]as been adjudicated guilty
in any court of a felony” or has “had entry of a prayer for
judgment continued for a criminal offense which would disqualify
the person from obtaining a concealed handgun permit.” N.C. Gen.
Stat. § 14-415.12(b)(3), (9). In light of the foregoing case and
statutory law, we hold that by virtue of his prior guilty pleas to
felony sale and delivery of a controlled substance and felony
conspiracy to sell a controlled substance, plaintiff is a
“convicted felon” for the purposes of N.C. Gen. Stat. § 14-404.
Therefore, the trial court's judgment to the contrary is reversed.
Reversed.
Judge BRYANT concurs.
Judge LEVINSON dissents.
LEVINSON, Judge dissenting.
There is no case or controversy between the parties, and thus
no basis for a declaratory judgment action. For this reason, I
would reverse and remand the order of the district court with
instructions to dismiss.
Plaintiff was denied a pistol purchase permit by the Forsyth
County Sheriff's Office, on the grounds that he had a prior felony
conviction. The record does not indicate that plaintiff ever
sought review of the Sheriff's denial of his application for a
permit by petition to the chief district court judge as provided in
N.C.G.S. § 14-404(b) (2003). Plaintiff was later charged with the
criminal offenses of perjury and obtaining property by false
pretenses for his representation in the pistol permit application
that he was not a convicted felon. These criminal charges were
subsequently dismissed. Plaintiff then filed the instant action,
which includes the following pertinent allegations:
3. This action is brought for the purpose of
determining, by Declaratory Judgment action, the
plaintiff's citizenship and the cons[e]quences
thereto resulting from certain criminal process
brought by the defendant against the plaintiff in
1980.
4. Specifically, plaintiff alleges, in support of his
claim for a Declaratory Judgment the following
factual controversy:
a. Certain criminal process were brought against
the plaintiff in the Superior Court Division
of the General Hall of Justice in Forsyth
County, North Carolina, which were designated
as case 80 CR 47395, 80 CR 47396 and 80 CR
47397. The specific charges were conspiracy
to sell and deliver a controlled substance,
possession within [sic] intent to sell and
deliver a controlled substance and sale anddelivery of a controlled substance.
b. On March 24, 1981, a final disposition was
made of these charges and this plaintiff
entered a plea of guilty to the misdemeanor
charge of possession of a controlled substance
and two felony guilty pleas to sale and
delivery of a controlled substance and
cons[p]iracy to sell a controlled substance.
c. The plaintiff was sentenced in the misdemeanor
charge to not less than twelve months, no more
than eighteen months, as a regular committed
youthful offender, said sentence suspended for
a period of three years on the condition that
he pay the costs of Court and not, at any
future date, possess a controlled substance
unless under a doctor's prescription. The
Court entered a Prayer for Judgment continued
from term to term to term with regard to the
two felony charges and no Court costs or other
consequences were attached to those charges.
d. Since the entry of those criminal Judgments,
the plaintiff has exercised his State and
Federal constitutional right to vote and
attached hereto is a true copy of his Voter
Registration Card. In addition, the plaintiff
has served as a juror in the Superior Court of
Forsyth County, North Carolina and attached
hereto is a true copy of his juror
certification.
e. The plaintiff has recently applied for a
handgun permit with the Sheriff of Forsyth
County, North Carolina and, as a consequence
of this application and his written and verbal
statement that he had never been convicted of
a felony, was arrested and made to respond to
certain criminal process instituted in Forsyth
County, North Carolina for obtaining property
by false pretense and perjury in case 03 CR
62319, the State of North Carolina contending
that the “official record” of this State is
that the defendant is a convicted felon.
f. When this matter came on for probable cause
hearing on December 5, 2003, the Honorable
Assistant District Attorney, Eric Saunders,
took a voluntary dismissal of these recent
charges, but the defendant believes and
therefore alleges that he would be in furtherjeopardy if he again attempts to obtain a
handgun permit under the still existing
controversy and seeks to obtain a Declaratory
Judgment from this Court concerning his status
as a “convicted felon” and his entitlement to
lawfully obtain a handgun permit.
5. A genuine controversy exists, such that the
provisions of the North Carolina Declaratory
Judgment Action are hereby invoked and this Court
is empowered to enter a Declaratory Judgment
adjudicating the plaintiff's rights to possession
of a handgun, as well as his entitlement to all
other constitutional privileges guaranteed by the
United States of America and the State of North
Carolina Constitutions.
“A justiciable controversy is a prerequisite to a court's
obtaining jurisdiction. 'An actual controversy between the parties
must exist at the time the complaint is filed in order for the
court to have jurisdiction to render a declaratory judgment.' . .
. This Court consistently has held that 'future or anticipated
action of a litigant does not give subject matter jurisdiction to
our courts under the Declaratory Judgment Act.'” Town of Ayden v.
Town of Winterville, 143 N.C. App. 136, 140-141, 544 S.E.2d 821,
825 (2001) (quoting Town of Pine Knoll Shores v. Carolina Water
Service, 128 N.C. App. 321, 494 S.E.2d 618 (1998), and Bueltel v.
Lumber Mut. Ins. Co., 134 N.C. App. 626, 628, 518 S.E.2d 205, 207
(1999)). “[T]o satisfy the jurisdictional requirement of an actual
controversy, it is necessary that litigation appear unavoidable.”
Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 589, 347
S.E.2d 25, 32 (1986) (citation omitted). Moreover, “'the
proceedings of a court without jurisdiction of the subject matter
are a nullity.'” Sarda v. City/ Cty. Of Durham Bd. of Adjust., 156
N.C. App. 213, 215, 575 S.E.2d 829, 831 (2003) (quoting Burgess v.Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)).
“A challenge to subject matter jurisdiction may be . . .
raised by the appellate court on its own motion, even when not
raised by the parties.” Whittaker v. Furniture Factory Outlet
Shops, 145 N.C. App. 169, 172, 550 S.E.2d 822, 824 (2001) (citing
Askew v. Leonard Tire Co., 264 N.C. 168, 171, 141 S.E.2d 280, 282
(1965)). In the present case, plaintiff's complaint fails to
demonstrate a current case or controversy between the parties. The
complaint neither alleges that plaintiff reapplied for a pistol
permit, nor expresses any clear intention to reapply. Plaintiff
merely voices the generalized concern that he “believes and
therefore alleges that he would be in further jeopardy if he again
attempts to obtain a handgun permit under the still existing
controversy.” Indeed, plaintiff concedes in his complaint that his
reason for seeking a declaration that he is not a convicted felon
under the laws of North Carolina and is thus “entitled to all
privileges and responsibilities guaranteed by United States of
America and State of North Carolina citizenship” is so that the
declaration will be available if he decides in the future to
reapply for a pistol permit. This is clearly insufficient to
support the subject matter jurisdiction of the court. See City of
Raleigh v. R.R. Co., 275 N.C. 454, 168 S.E.2d 389 (1969) (parties
seeking judicial interpretation of city ordinance not yet adopted
when suit was filed; this Court finds no justiciable case or
controversy).
The holding of the majority opinion makes it unlikelyplaintiff will reapply for a pistol purchase permit. Nonetheless,
I observe that in the event he does reapply for a permit which is
again denied on the basis of a prior felony conviction, he would
have some recourse through the operation of G.S. § 14-404(b), which
authorizes review of the Sheriff's decision by a judicial official.
I make no comment on whether, under such circumstances, an
ancillary action for a declaratory judgment seeking the relief set
forth in this complaint could be sustained.
Finally, no case or controversy is generated by the mere fact
that plaintiff's complaint was filed after certain unpleasant
interactions with the Forsyth County Sheriff and District
Attorney's Office. Plaintiff's complaint remains simply a
complaint by a citizen who is displeased with the possible future
treatment he might receive from public officials in the course of
a possible future application for a pistol permit. Plaintiff's
status is the same as other citizens of North Carolina who might
want a declaratory judgment that they are not convicted felons.
However, our courts are not available for such declarations until
a case or controversy requires determination of their status.
Because I would reverse and remand with instructions to
dismiss the subject complaint, I make no comment on the central
issue addressed by the majority opinion.
*** Converted from WordPerfect ***