State v Garner, (05-707) 02/07/2006

Appeal by defendant from judgments entered 14 March 2005 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 23 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State.

The Kelly Law Firm, by George E. Kelly, III, for defendant- appellant.

MARTIN, Chief Judge.

    Defendant appeals from judgments revoking his probation and activating his suspended sentences. Finding no error, we affirm.
    On 13 December 2004, defendant entered pleas of guilty to two counts of sale of cocaine, pursuant to a written plea agreement providing, in part, for non-active prison sentences “to run consecutively[.]” The trial court entered judgments in accordance with the plea agreement, sentencing defendant to consecutive, suspended terms of fifteen to eighteen months' imprisonment and placing him on supervised probation for thirty-six months. Defendant did not appeal.
    Reports filed on 9 February 2005 charged defendant with thefollowing four violations of the conditions of his probation: (1) testing positive for cocaine and marijuana use on 3 February 2005; (2) failing to attend four scheduled appointments with his probation officer; (3) violating curfew on two occasions; and (4) failing to obtain a court-ordered mental health assessment. After a hearing held on 14 March 2005, the trial court found each of the violations alleged in the reports, revoked defendant's probation, and activated his suspended sentences. Defendant filed timely notice of appeal from the judgments entered upon revocation of probation.
    Defendant now argues that the trial court violated the constitutional bar against double jeopardy by sentencing him to two consecutive prison terms for a single offense. He notes that each of the indictments in 04 CRS 51185 and 04 CRS 52092 alleges a sale of cocaine to Weldon Police Officer Danny Ford on 4 March 2004. While acknowledging he did not appeal the judgments entered 13 December 2004 which imposed the consecutive sentences, defendant notes that N.C. Gen. Stat. § 15A-1342(g) (2005) allows an invalid condition of probation to be challenged on appeal from the judgment revoking probation, rather than from the judgment imposing the invalid condition.
    “When appealing from an order activating a suspended sentence, inquiries are permissible only to determine whether there is evidence to support a finding of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid[.]” State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409,410 (1971). We have recognized a single exception to this rule, which allows a challenge to the sufficiency of an indictment to be asserted at any time. See State v. Bullock, 154 N.C. App. 234, 244, 574 S.E.2d 17, 23 (2002), cert. denied, 540 U.S. 928, 157 L. Ed. 2d 231 (2003).
    In the instant appeal, defendant does not contest the trial court's finding that he violated the conditions of his probation, nor does he question the validity of the conditions found to have been violated. To the extent his assignment of error can be construed as challenging the sufficiency of the indictments to support the sentences entered by the court, it is without merit. The judgments entered in this cause and defendant's signed transcript of plea reflect a date offense of 24 February 2004 for the sale of cocaine charged in 04 CRS 52092, and a date of offense of 4 March 2004 for the sale of cocaine charged in 04 CRS 51185. Although it is true that the indictment in 04 CRS 52092 lists the date of offense as 4 March 2004, “[t]his Court has stated on a number of occasions that the State may prove that the crime charged was in fact committed on some date other than that alleged in the indictment.” State v. Ramey, 318 N.C. 457, 472, 349 S.E.2d 566, 575 (1986) (citing State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984); State v. Whittemore, 255 N.C. 583, 122 S.E. 2d 396 (1961)). By pleading guilty to two counts of sale and delivery of cocaine in 04 CRS 51185 and 04 CRS 52092, defendant waived any issue as to the notice of the charges contained in the indictments, or any non- jurisdictional defect therein. State v. Hughes, 136 N.C. App. 92,97, 524 S.E.2d 63, 66 (1999) (holding that a guilty plea “waives all defenses other than the sufficiency of the indictment[,]” including the defense of double jeopardy), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000), superseded by statute on other grounds, N.C. Gen. Stat. § 15A-1340.34 (2005). Inasmuch as each of the indictments alleges defendant's willful and felonious sale and delivery of cocaine by defendant to a named police officer, they are sufficient to confer jurisdiction on the court under N.C. Gen. Stat. § 90-95(a)(1) (2005).
    Defendant's signed transcript of plea provided for “sentencing to run consecutively[.]” He did not move to withdraw his plea when the consecutive sentences were entered, and he did not appeal or seek review by writ of certiorari of the 13 December 2004 judgments imposing the consecutive sentences. The propriety of defendant's consecutive sentences is not properly before this Court on appeal from the judgments revoking his probation. See State v. Rush, 158 N.C. App. 738, 741, 582 S.E.2d 37, 39 (2003). “This appeal amounts to an impermissible collateral attack on the initial judgment[s].” Id. (citing Noles, 12 N.C. App. at 678, 184 S.E.2d at 410).
    Affirmed.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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