An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 January 2007
STATE OF NORTH CAROLINA
AGNES MAYBELLE CHEVALIER
Appeal by defendant from judgments entered 5 January 2006 by
Judge Thomas D. Haigwood in Sampson County Superior Court. Heard
in the Court of Appeals 6 December 2006.
Attorney General Roy Cooper, by Special Counsel Caroline
Farmer, for the State.
John T. Hall for defendant appellant.
Defendant appeals from a jury verdict of guilty of one count
of felonious breaking and entering and one count of felonious
larceny. We determine there was no error.
Agnes Maybelle Chevalier (defendant) was arrested on one
count of felony breaking and entering, one count of felony larceny,
and one count of felony possession of stolen property. These three
charges were consolidated in a true bill of indictment. Another
true bill of indictment was submitted under the same file number
charging defendant with habitual felon status. The habitual felon
indictment was labeled as an ancillary indictment. The State's
evidence presented at trial tended to show the following: On 4 April 2005, James Owens lived with his uncle, William
Owens. When James arrived home from work that day, he discovered
the house door kicked in and defendant inside his home without his
permission. She had personal property of William Owens in her
hands. Defendant fled the scene after being confronted by James.
Willie Everette Jones, Jr., of the Sampson County Sheriff's
Office conducted a photographic lineup. James Owens selected
defendant out of the photographs and defendant was arrested.
On 12 September 2005, the State obtained a true bill of
indictment for felonious breaking and entering, felonious larceny,
and felonious possession of stolen goods. The State also obtained
an indictment charging defendant with the status of habitual felon
on the same date and case file number. On 5 December 2005, the
State repeated the process, obtaining two new true bills in the
same file number for the same allegations.
A jury found defendant guilty of felonious breaking and
entering and felonious larceny, but not guilty of felonious
possession of stolen property. Following the jury verdict, and in
the absence of the jury, the trial judge personally addressed
defendant to properly determine whether or not she had attained
habitual felon status. Defendant pled guilty to having attained
habitual felon status.
Defendant contends the factual basis was insufficient for the
trial court to accept defendant's guilty plea for habitual felon
status. We disagree.
Habitual felon status is acquired when any person has been
convicted of or pled guilty to three felony offenses in any federal
or state court or combination thereof. N.C. Gen. Stat. § 14-7.1
(2005). The North Carolina General Statutes state that a judge may
not accept a plea of guilty without first determining there is a
factual basis for the plea. N.C. Gen. Stat. § 15A-1022(c) (2005).
This determination may be based upon
information including, but not limited to:
(1) A statement of the facts by the
(2) A written statement of the defendant.
(3) An examination of the presentence report.
(4) Sworn testimony, which may include
(5) A statement of facts by the defense
Id. Our Supreme Court stated that any information used by the
trial judge to determine that a factual basis does exist for
acceptance of a plea must be contained in the record on appeal so
that an appellate court can examine that basis for acceptance of
the plea. State v. Sinclair, 301 N.C. 193, 198, 270 S.E.2d 418,
In State v. Dickens, 299 N.C. 76, 76, 261 S.E.2d 183, 184
(1980), the defendant was charged with eight counts of issuingworthless checks and subsequently entered a plea of guilty to each
of the charges. In documenting the prior actions of the trial
court, our Supreme Court noted that:
Before accepting defendant's pleas of
guilty, the trial court personally addressed
defendant to ascertain if the guilty pleas
were freely, voluntarily and understandingly
made. From the answers provided by defendant
to the questions enumerated on the Transcript
of Plea, AOC-L, Form 290, the court made
findings of fact (1) that there was a factual
basis for the entry of the pleas; (2) that
defendant was satisfied with his counsel; and
(3) that defendant's pleas were the informed
choice of defendant and made freely,
voluntarily and understandingly. Upon these
findings the court concluded that defendant's
pleas of guilty should be accepted by the
court and ordered that the record so indicate.
Id. at 76-77, 261 S.E.2d at 184. Our Supreme Court stated that
sufficient information existed to support a factual basis for the
trial court to accept the guilty plea. Id. at 82, 261 S.E.2d at
187. The Court stated that the information in the record that the
defendant had been previously convicted of the offenses in district
court, coupled with the defendant admitting to being actually
guilty of the charges in the transcript of plea, was an abundance
of information . . . to constitute a factual basis for the pleas of
guilty. Id. The Court noted the defendant's answer to a question
in the transcript of plea that he was in fact guilty of the
charges. Id. at 80, 261 S.E.2d at 186.
Here, the trial court had a sufficient factual basis to
support acceptance of the plea. The record contains a transcript
of plea which includes defendant's affirmative responses toquestions including, Do you understand that you are pleading
guilty to the charges shown on page two of the transcript?; Do
you now personally plead guilty to the charge I just described?;
and Are you in fact guilty? In addition, at the end of the
transcript of plea there is a section which states that defendant's
answers have created a factual basis for the entry of the plea.
Also, included in the record is the bill of indictment which gives
descriptions of the prior convictions and the dates on which the
corresponding offenses and convictions occurred. Thus, the trial
court had a sufficient factual basis upon which to base its
acceptance of defendant's guilty plea.
Defendant's final two contentions rely on the assertion that
the habitual felon indictment superseded the underlying felony
indictments. We disagree.
The indictment charging the defendant as an habitual felon
shall be separate from the indictment charging him with the
principal felony. N.C. Gen. Stat. § 14-7.3 (2005). We have
[I]t makes no difference whether defendant is
charged with the underlying felony and with
habitual felon status in separate bills of
indictment, or in separate counts of the same
bill of indictment. Either method accomplishes
the purpose of an indictment, i.e., to notify
the defendant of the charges against him so
that he may prepare his defense, and to enable
the court to pronounce judgment in the event
he is convicted.
State v. Young
, 120 N.C. App. 456, 461, 462 S.E.2d 683, 686 (1995). Here, the form of the indictments for habitual felon status
and for the underlying felonies was proper. The bill of indictment
for breaking and entering, larceny, and possession of stolen goods
is on a completely different bill of indictment than that of the
habitual felon status indictment. The indictment for the underlying
felonies is labeled indictment, whereas the habitual felon
indictment is labeled ancillary indictment. The habitual felon
indictment did not supersede the underlying felony indictments. We
believe these indictments accomplished the purpose of an indictment
by giving defendant notice of the separate charges against him.
Further, we do not believe defendant was prejudiced in any way.
Accordingly, we disagree with defendant.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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