State v White, (04-841) 08/16/2005

Appeal by defendant from judgment entered 09 January 2004 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 22 March 2005.

Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.

Jarvis John Edgerton, IV, for defendant-appellant.

    ELMORE, Judge.

    Aubrey Kevin White (defendant) appeals his convictions for common law robbery and second-degree kidnapping. He argues that the State did not secure a proper indictment or information charging him with common law robbery and that his conviction for second-degree kidnapping violates double jeopardy. For the reasons stated herein we vacate defendant's judgment for common law robbery and remand his conviction for second-degree kidnapping to the trial court for resentencing pursuant to State v. Allen, ___ N.C. ___, ___ S.E.2d ___ (01 July 2005) (485PA04).
    Defendant and two other men robbed a friend of theirs on 08 October 2003. Defendant and his two accomplices asked their college friend, Brandon Hearndon, for a ride. Hearndon agreed, andwhile all the men were in the car defendant revealed a fake gun designed to look real. All three men demanded money from Hearndon. After Hearndon complied by giving the men $15.00 and his wallet, one of defendant's accomplices wanted more money from Hearndon's ATM. One of defendant's accomplices switched places with Hearndon, drove the car to the ATM, and attempted to get money from the account. After the accomplice failed to retrieve funds, Hearndon, becoming more fearful of the men, promised he could get money from another location. As the pursuit continued, Hearndon realized the weapon was not real and attempted to overtake the driver. The car crashed and defendant and his accomplices fled the scene. Each person was later identified and caught. Defendant, along with his accomplices, pled guilty to the charges in front of Judge Hill in Wake County Superior Court.
    Defendant alleges that his guilty plea to common law robbery was not secured pursuant to a proper bill of information. While the State presented defendant with a copy of the bill of information for second-degree kidnapping, the district attorney never presented defendant with a bill of information for common law robbery. Thus, defendant never signed and consented to the information. It is axiomatic in this State that a defendant must be convicted of a felony by an indictment, or if waiving that right, by a proper bill of information. See N.C. Const. art. 1, § 22; N.C. Gen. Stat. §§ 15A-642 and 15A-923 (2003); State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998). Section 15A- 642(c) states that a “[w]aiver of indictment must be in writing andsigned by the defendant and his attorney. The wavier must be attached to or executed upon the bill of information.” N.C. Gen. Stat. § 15A-642(c) (2003) (emphasis added). Here, the district attorney properly drew up a bill of information that he and defendant's counsel signed, but defendant's signature was never secured. Accordingly, the wavier of indictment was not proper and defendant's judgment for common law robbery based thereon is vacated. See State v. Daniel, 19 N.C. App. 313, 198 S.E.2d 464 (1973).
    Defendant next argues that his conviction for second-degree kidnapping violates double jeopardy. But this argument is not properly before the Court. As this Court held in State v. Hughes, “[a] defense of double jeopardy is abandoned by a subsequent plea of guilty.” Hughes, 136 N.C. App. 92, 97, 524 S.E.2d 63, 66 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000), overruled on other grounds by N.C. Gen. Stat. § 15A-1340.34 (2003). The Court explained in Hughes that “[t]he defendant may waive the constitutional right not to be placed in jeopardy twice for the same offense.” Id. (citing State v. Hopkins, 279 N.C. 473, 183 S.E.2d 657 (1971)). Further, either a plea of guilty or a plea of no contest “waives all defenses other than the sufficiency of the indictment.” Id. (citing State v. Caldwell, 269 N.C. 521, 526, 153 S.E.2d 34, 37-38 (1967)). Since defendant's argument as to double jeopardy has been waived, we will not review it.
    Finally, according to Allen, ___ N.C. at ___, ___ S.E.2d at ___, we remand defendant's conviction for second-degree kidnappingto the trial court for resentencing. Defendant was sentenced in the aggravated range pursuant to N.C. Gen. Stat. § 15A-1340.16 on the basis of the trial court's findings. Our Supreme Court in Allen held that this procedure was “structural error” requiring remand for entry of a new sentence. See id.
    No error in part, vacated in part, and remanded for resentencing.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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