State v Strausser, (04-982) 04/05/2005

Appeal by defendant from judgments entered 21 April 2004 by Judge A. Moses Massey in Surry County Superior Court. Heard in the Court of Appeals 14 March 2005.

Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

Robert W. Ewing, for defendant-appellant.

CALABRIA, Judge.

    On 4 February 2002, the Surry County Grand Jury indicted William Carl Strausser (“defendant”) on charges of trafficking in methamphetamine, possession with intent to sell and deliver marijuana, manufacture of marijuana, maintaining a drug dwelling, and attaining the status of an habitual felon. On 30 April 2002, defendant was also charged in separate felony informations with larceny after breaking and entering, two counts of breaking and entering and larceny, and three counts of possession of stolen property. The felony information for larceny after breaking andentering (02 CRS 50350) charged that defendant “did steal, take and carry away . . . the personal property of White Plains Mini Storage . . . .” The Surry County Grand Jury on 22 April 2002 returned a second habitual felon indictment against defendant.
    On 30 April 2002, defendant pled guilty pursuant to a plea arrangement to charges of trafficking in methamphetamine, possession with intent to sell and deliver marijuana, manufacture of marijuana, maintaining a drug dwelling, felony larceny, two counts of larceny after breaking and entering, two counts of possession of stolen property, and two counts of habitual felon status. Under the terms of his plea arrangement, defendant's charges were to “be consolidated into two (2) habitual felon charges” and the “minimum sentence in each charge [was not to] exceed 133 months.” On 5 June 2002, after determining that defendant had fifteen prior record points and a prior record level of V, the trial court imposed two consecutive presumptive-range sentences of 121 to 155 months in the North Carolina Department of Corrections (the “NCDOC”). Defendant appealed and later filed a petition for writ of certiorari with this Court. On 16 December 2002, this Court dismissed defendant's appeal and denied his petition for writ of certiorari without prejudice to his right to file a motion for appropriate relief in superior court.
    Defendant filed his motion for appropriate relief with the trial court on 12 February 2004 and raised several claims. He asserted that his prior record level had been improperly calculated because prior record points from various misdemeanors had beenimproperly included in his point total. Defendant complained that he had received ineffective assistance of counsel because his counsel did not put forth any effort to negotiate a proper plea arrangement. He further claimed that he had been subjected to prosecutorial misconduct because his counsel had permitted two assistant district attorneys to talk with him out of his counsel's presence. Defendant asserted that they threatened him with a life sentence if he failed to accept the plea arrangement. On 12 March 2004 , the trial court ordered a resentencing hearing and dismissed the remainder of defendant's claims set out in his motion for appropriate relief.
    In an affidavit dated 23 August 2002, one of the assistant district attorneys acknowledged that he and another assistant district attorney met with defendant “around April 24th or 25th.” He stated defendant had immediately rejected the plea arrangement following their three to four minute conversation. However, before the start of his trial on 30 April 2002, defendant had two private conversations with his counsel and accepted the plea arrangement. Defendant signed a transcript of plea on 30 April 2002, but pursuant to defendant's request entry of judgment and sentencing were deferred until 5 June 2002.
    At the resentencing hearing on 21 April 2004, the trial court heard evidence and determined that defendant had eighteen prior record points and a prior record level of V. The trial court then sentenced defendant to two consecutive terms of 121 to 155 months in the NCDOC. From the trial court's judgments, defendant appeals.    Defendant first asserts the trial court erred by summarily dismissing his claims of ineffective assistance of counsel and prosecutorial misconduct, which were raised in his motion for appropriate relief. Specifically, he argues the trial court violated N.C. Gen. Stat. § 15A-1420(c)(7) (2003) by failing to make conclusions of law and by failing to state its reasons for dismissing the claims. Defendant's argument is not persuasive.
    As an initial matter, the State has filed a motion to dismiss defendant's appeal because he has no statutory right of appeal from either the trial court's judgments or its ruling on his motion for appropriate relief; rather, he may only petition for appellate review by writ of certiorari. N.C. Gen. Stat. §§ 15A-1444(e) and 1422(c)(3) (2003). Since defendant failed to present any arguments that can properly be raised pursuant to his notice of appeal, the State's motion to dismiss the appeal is allowed.
    Defendant appropriately requested in the alternative that this Court consider his brief to be a petition for writ of certiorari on the issue of the trial court's dismissal of the claims under his motion for appropriate relief . “Certiorari is a discretionary writ, to be issued only for good and sufficient cause shown.” State v. Grundler and State v. Jelly, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959). “A petition for the writ must show merit or that error was probably committed below.” Id.
    Defendant properly concedes that he was not entitled to a hearing on questions of law and fact after the trial court determined pursuant to N.C. Gen. Stat. § 15A-1420(c)(1) (2003) thathis motion was without merit. Nonetheless, he erroneously argues the trial court was required by N.C. Gen. Stat. § 15A-1420(c)(7) to “make and enter conclusions of law and a statement of the reasons for its determination” because his motion was “based upon an asserted violation of [his] rights . . . under the Constitution or laws or treaties of the United States . . . .” Such written conclusions of law are to be made, however, “to the extent required, when taken with other records and transcripts in the case, to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.” N.C. Gen. Stat. § 15A-1420(c)(7).
    Defendant's transcript of plea, original judgments, and the 2002 affidavit, as well as the affidavit of one of the two assistant district attorneys, show no abuse of discretion by the trial court in summarily dismissing defendant's claims of ineffective assistance of counsel and prosecutorial misconduct without written conclusions of law. See State v. Clark, 65 N.C. App. 286, 292, 308 S.E.2d 913, 917 (1983) (applying an abuse of discretion standard to a trial court's disposition of a post-trial motion for appropriate relief). We decline to issue the writ of certiorari to review the trial court's 12 March 2004 order because defendant has not shown his petition contains merit nor has he shown error in the trial court's denial of his claims of ineffective assistance and prosecutorial misconduct.
    Defendant next asserts the trial court erred by entering judgment upon the larceny after breaking and entering information(02 CRS 50350). He argues, and the State concedes, that the information was fatally defective because it failed to sufficiently allege that the owner of the property was either a person or a legal entity capable of owning property. Although defendant is not entitled to appellate review of this issue as a matter of right but only upon petition for writ of certiorari, N.C. Gen. Stat. § 15A- 1444(e), this Court shall consider defendant's brief to be a petition for writ of certiorari and shall allow the writ to address the larceny after breaking and entering information (02 CRS 50350).
    “An indictment for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective.” State v. Roberts, 14 N.C. App. 648, 649, 188 S.E.2d 610, 611 (1972). Here the larceny after breaking and entering information alleged defendant “did steal, take and carry away . . . the personal property of White Plains Mini Storage . . . .” The information fails to allege that “White Plains Mini Storage” is either a legal entity capable of owning property or a natural person. “[N]or does the name import that it is a corporation [or] . . . a natural person.” Id. at 649, 188 S.E.2d at 612. The larceny after breaking and entering judgment (02 CRS 50350) is therefore arrested, and the larceny conviction is vacated. The matter is remanded for resentencing on the remaining convictions. Upon a sufficient indictment or information, the State may proceed against defendant on the larceny after breaking and entering charge.
    Vacated in part and remanded in part for resentencing.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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