               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-136

                             Filed: 19 September 2017

Cabarrus County, No. 15 CRS 50338-40; 15 CRS 50451

STATE OF NORTH CAROLINA

             v.

SERGIO MONTEZ CULBERTSON


       Appeal by defendant from judgment entered 6 September 2016 by Judge Julia

Lynn Gullett in Cabarrus County Superior Court. Heard in the Court of Appeals 23

August 2017.


       Attorney General Joshua H. Stein, by Assistant Attorney General Susannah P.
       Holloway, for the State.

       Joseph P. Lattimore for defendant-appellant.


       TYSON, Judge.


       Sergio Montez Culbertson (“Defendant”) appeals from judgment entered

following his guilty plea to assault inflicting serious physical injury on a law

enforcement officer, assault inflicting injury on a law enforcement officer, five drug

related charges, resisting arrest, driving while license revoked and a parking

violation. The State has filed a motion to dismiss Defendant’s appeal. Defendant

also filed a petition for writ of certiorari seeking our review contemporaneously with

his brief.
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                                  Opinion of the Court



      The State’s motion to dismiss the appeal is allowed. In our discretion, we

invoke N.C. R. App. P. 2 to suspend Rule 21 of the appellate rules, allow Defendant’s

petition and issue our writ of certiorari.      Defendant’s petition seeks review of

judgments entered upon indictments, which the State concedes are facially invalid

and do not provide the trial court with jurisdiction on two charges.

                               I. Factual Background

      At the entry of Defendant’s guilty plea, the State forecast the following

evidence. On 21 January 2015, Concord Police Officer M. Hanson was on patrol when

he saw a truck parked in the street and facing the wrong direction of travel. The

truck was parked approximately 900 feet from the boundary of Caldwell Park. Officer

Hanson observed Defendant walking away from the truck. Officer Hanson called

other officers to inform them he had stopped Defendant and exited his vehicle to

speak with Defendant. Concord Police Officer A. J. Vandevoorde arrived at the scene,

and the officers conversed with Defendant near Defendant’s truck.

      Officer Vandevoorde smelled marijuana inside Defendant’s truck and asked

Defendant for consent to search the vehicle. Defendant consented, but claimed he

was having trouble opening the truck door with the key in his possession. Officer

Vandevoorde opened the passenger door of the truck. Officer Vandevoorde asked

Defendant not to reach inside the truck after they opened the door.




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                                   Opinion of the Court



      Against Officer Vandevoorde’s instruction, Defendant reached into the car as

the officer was opening the door. Both officers moved to restrain Defendant from

putting his arm inside the truck. Defendant became combative and began to struggle

with both officers. The officers discharged their tasers on Defendant several times,

but Defendant continued to resist them. Officer Vandevoorde eventually wrestled

Defendant onto the ground, where Officer Hanson attempted to place him in

handcuffs. During the fight, Defendant yelled “Momma, get my weed out from under

the car seat, under the driver’s seat.”

      The officers called in for backup.      Several other officers responded to the

request for backup and assisted to restrain Defendant and secure him on the backseat

of a police car. Officer Vandevoorde searched Defendant’s truck and found a diaper

bag containing more than 300 grams of marijuana, which was packaged in several

smaller bags. Officer Vandevoorde also found a plastic bag, under the driver’s seat,

which contained several smaller bags of heroin.

      Officers Hanson and Vandevoorde both sustained injuries in the fight with

Defendant. Officer Vandevoorde sustained scrapes and lacerations on his knees and

hands. Officer Hanson injured his anterior cruciate ligament (ACL) and the meniscus

of his knee, which led to several surgeries and rehabilitation time to recover.

                                 II. Procedural history




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                                   Opinion of the Court



      On 29 August 2016, Defendant entered guilty pleas to: assault inflicting

serious physical injury on a law enforcement officer (Hanson); assault inflicting injury

on a law enforcement officer (Vandevoorde); possession of drug paraphernalia;

maintaining a vehicle/dwelling place for the purpose of keeping and selling controlled

substances; trafficking in opium or heroin; possession with intent to sell or deliver

(“PWISD”) marijuana within 1000 feet of a park; PWISD heroin within 1000 feet of a

park; and, possession of marijuana.

      Defendant was sentenced as a prior record level II offender.           Defendant

received an active sentence of 90 to 120 months and a fine for the trafficking charge.

The court consolidated the offense of PWISD marijuana near a park with one count

of assault inflicting serious injury on a law enforcement officer and sentenced

Defendant to 29 to 47 months active imprisonment to run consecutively to the

trafficking sentence.     Defendant’s sentences on the remaining counts were

suspended, with two consecutive 60 month terms of probation to follow the active

sentences.

      Subsequently, the parties realized the court and parties had stated incorrect

offense class levels and sentences for some of the offenses. In order to correct the

sentence, the court did not adjourn the session of court where Defendant’s plea was

accepted. The court informed Defendant that the resentencing would reduce the

amount of active time he would serve, if his probationary sentences were revoked.



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                                   Opinion of the Court



Defendant nor his counsel asked for and Defendant was not afforded an opportunity

to withdraw his guilty plea. Defendant was re-sentenced on 6 September 2016 as

follows:

             [T]he Court recognizes that we needed to correct the
             judgment from last week because we did have an incorrect
             class on one of the cases in which the Court sentenced. The
             trafficking sentence will remain the same. The Court will
             then sentence under the possession with intent to sell or
             deliver marijuana within a thousand feet of a school in [15
             CRS] 50339, to the 29 – minimum 29 maximum 47 months.
             The Court would then consolidate the felony assault on a
             law enforcement officer inflicting physical injury with that
             charge. And then with respect to the assault inflicting
             serious personal injury – physical injury on a law
             enforcement officer, the Class F, the Court sentences him
             to the minimum 25 maximum 47 months, suspended for
             five years, I believe it was, supervised probation.

      Upon the rendering of his new sentence, Defendant orally entered notice of

appeal. Defendant filed his brief and a petition for writ of certiorari at the same time

to seek review of the judgments and sentences imposed against him.

                            III. Issues raised by Defendant

      In his brief and in his petition for writ of certiorari, Defendant contends the

trial court lacked jurisdiction to accept his guilty pleas on the charges of trafficking,

PWISD marijuana within 1000 feet of a park and PWISD heroin within 1000 feet of

a park. Defendant also asserts that his pleas to these charges were not voluntary,

because of erroneous statements made at the time of the entry of his pleas.




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      Further, Defendant argues the State failed to present a sufficient factual basis

to support his guilty plea to the assault charges.

                                  IV. Right of Appeal

                            A. N.C. Gen. Stat. § 15A-1444

      Defendant acknowledges he has no right to appeal the judgments entered. “A

defendant’s right to appeal in a criminal proceeding is entirely a creation of state

statute.” State v. Biddix, __ N.C. App. __, __, 780 S.E.2d 863, 865 (2015) (citing State

v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C.

442, 573 S.E.2d 163 (2002)).      Without express statutory authority, a criminal

defendant does not have a right to appeal a judgment entered under N.C. Gen. Stat.

§ 15A-1444. Id.; see also State v. Ahern, 307 N.C. 584, 605, 300 S.E.2d 689, 702 (1989).

      N.C. Gen. Stat. § 15A-1444 provides:

             (a1) A defendant who has . . . entered a plea of guilty or no
             contest to a felony, is entitled to appeal as a matter of right
             the issue of whether his or her sentence is supported by
             evidence introduced at the trial and sentencing hearing
             only if the minimum sentence of imprisonment does not fall
             within the presumptive range for the defendant’s prior
             record or conviction level and class of offense. Otherwise,
             the defendant is not entitled to appeal this issue as a
             matter of right but may petition the appellate division for
             review of this issue by writ of certiorari.

             (a2) A defendant who has entered a plea of guilty or no
             contest to a felony or misdemeanor in superior court is
             entitled to appeal as a matter of right the issue of whether
             the sentence imposed:
                    (1) Results from an incorrect finding of the


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                                   Opinion of the Court



             defendant’s prior record level under G.S. 15A-1340.14 or
             the defendant’s prior conviction level under G.S. 15A-
             1340.21;
                     (2) Contains a type of sentence disposition that is not
             authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the
             defendant’s class of offense and prior record or conviction
             level; or
                     (3) Contains a term of imprisonment that is for a
             duration not authorized by G.S. 15A-1340.17 or G.S. 15A-
             1340.23 for the defendant’s class of offense and prior record
             or conviction level.

                                          ....

             (e) Except as provided in subsections (a1) and (a2) of this
             section and G.S. 15A-979, and except when a motion to
             withdraw a plea of guilty or no contest has been denied, the
             defendant is not entitled to appellate review as a matter of
             right when he has entered a plea of guilty or no contest to
             a criminal charge in the superior court, but he may petition
             the appellate division for review by writ of certiorari . . . .

N.C. Gen. Stat. § 15A-1444 (2015).

      Defendant correctly recognizes he raises no issues which provide him an appeal

as of right pursuant to N.C. Gen. Stat. § 15A-1444(a2). The State’s motion to dismiss

Defendant’s appeal is allowed. Defendant’s purported appeal is dismissed.

                                  B. Appellate Rule 21

      To support his petition that a writ of certiorari should be allowed, Defendant

cites our Supreme Court in State v. Wallace that “where an indictment is alleged to

be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge

to that indictment may be made at any time, even if it was not contested in the trial



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                                  Opinion of the Court



court.” State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000), cert. denied,

531 U.S. 1018, 148 L. Ed. 2d 498 (2001).

      Defendant asserts the trial court lacked subject matter jurisdiction to accept

his guilty plea to the two charges of PWISD marijuana and heroin within 1000 feet

of a park. He argues the indictments for these offenses failed to allege the essential

element of his age being over 21 at the time of the offenses. Defendant argues

indictments charging statutory offenses must allege all of the essential elements of

the offenses. Defendant also asserts the trafficking indictment failed to specifically

name heroin instead of the general category of opium derivative.

      With respect to the two indictments for PWISD, Defendant would present a

meritorious claim, were both raised on a motion for appropriate relief. Defendant

claims and the State concedes that the indictments for PWISD within 1000 feet of a

park failed to allege and did not state that the Defendant’s age was over 21 years.

      While N.C. Gen. Stat. § 15A-1444(e) provides jurisdiction and affords a

defendant the opportunity to seek discretionary appellate review by petition for

certiorari, Defendant’s petition does not assert any claim or grounds to qualify it for

appellate review by certiorari under Appellate Rule 21. N.C. R. App. P. 21.

      As such, Defendant’s petition for writ of certiorari is subject to dismissal. See

e.g., State v. Nance, 155 N.C. App. 773, 774-75, 574 S.E.2d 692, 693-94 (2003)

(“Defendant [sought] to bring forth a claim that he did not knowingly and voluntarily



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                                   Opinion of the Court



plead guilty to having attained the status of habitual felon. However, defendant has

sought neither to withdraw his guilty plea, nor to obtain any other relief by motion

in the superior court. Defendant’s claim [was] not one that he may raise on direct

appeal pursuant to G.S. § 15A-1444(a)(1) or (a)(2). Further, defendant [had] not lost

his right of appeal through untimely action, nor is he attempting to appeal an

interlocutory order or seeking review of an order denying a motion for appropriate

relief under G.S. § 15A-1422(c)(3).”).

       Under these facts, we conclude Defendant does not have a right to appeal the

issue presented here under N.C. Gen. Stat. § 15A-1444(a)(1) or (a)(2), and Defendant

has not asserted any stated grounds under N.C. R. App. P. 21(a)(1) for this Court to

issue a writ of certiorari.

       Rule 21 “does not provide a procedural avenue for a party to seek appellate

review by certiorari of an issue pertaining to the entry of a guilty plea.” Biddix, __

N.C. at __, 780 S.E.2d at 870; see also, State v. Pennell, 367 N.C. 466, 472, 758 S.E.2d

383, 387 (2014) (“The proper procedure through which defendant may challenge the

facial validity of the original indictment is by filing a motion for appropriate relief

under [N.C. Gen. Stat.] § 15A-1415(b) or petitioning for a writ of habeas corpus.”).

                                  C. Appellate Rule 2

       Under N.C. R. App. P. 2, this Court possesses the discretionary authority to

suspend requirements of the North Carolina Rules of Appellate Procedure and issue



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                                  Opinion of the Court



a writ of certiorari. “Rule 2 relates to the residual power of our appellate courts to

consider, in exceptional circumstances, significant issues of importance in the public

interest, or to prevent injustice which appears manifest to the Court and only in such

instances.” Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999).

             This assessment- whether a particular case is one of the
             rare ‘instances’ appropriate for Rule 2 review- must
             necessarily be made in light of the specific circumstances of
             individual cases and parties, such as whether substantial
             rights of an appellant are affected. In simple terms,
             precedent cannot create an automatic right to review via
             Rule 2. Instead, whether an appellant has demonstrated
             that his matter is the rare case meriting suspension of our
             appellate rules is always a discretionary determination to
             be made on a case-by-case basis.

State v. Campbell, __ N.C. __, __, 799 S.E.2d 600, 602-03 (2017) (emphasis original)

(footnote, internal citations and quotation marks omitted).

      This Court must “independently and expressly determine whether, on the facts

and under the circumstances of this specific case, to exercise its discretion to employ

Rule 2 of the North Carolina Rules of Appellate Procedure, suspend [the] Rule . . .

and consider the merits of defendant’s fatal variance argument.” Campbell, __. N.C.

at __, 799 S.E.2d at 603.

             Under Appellate Rule 2, our appellate courts have the
             discretion to suspend the Rules of Appellate Procedure to
             prevent manifest injustice to a party. N.C. R. App. P. 2;
             Biddix, __ N.C. App. at __, 780 S.E.2d at 868.
             Furthermore, this court may invoke Rule 2 “either ‘upon
             application of a party’ or upon its own initiative.’” Biddix,
             __ N.C. App. at __, 780 S.E.2d at 868 (quoting Bailey v.


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                                   Opinion of the Court



             North Carolina, 353 N.C. 142, 157, 540 S.E.2d 313, 323
             (2000)). “This Court has previously recognized the Court
             may implement Appellate Rule 2 to suspend Rule 21 and
             grant certiorari, where the three grounds listed in
             Appellate Rule 21 to issue the writ do not apply.” Id.

State v. Anderson, __ N.C. App. __, __, __ S.E.2d __, __, 2017 WL 3254414, at *7.

           In State v. Biddix, the defendant asserted the trial court erred in accepting

his guilty plea as a product of his informed choice where the terms of his plea

arrangement were contradictory. Biddix, __ N.C. App. at __, 780 S.E.2d at 865. We

held the defendant did not demonstrate and we did not find “‘exceptional

circumstances’ necessary to exercise our discretion to invoke Appellate Rule 2 . . . .”

Id. at __, 780 S.E.2d at 868.

           In Anderson, the defendant pled guilty to a statute which had been

determined to be overbroad in another case. On appeal, the State had not offered

argument contrary to that previous decision.          This Court utilized Rule 2 and

suspended our rules where “an independent determination of the specific

circumstances of defendant’s case reveals that [the] case [was] one of the rare

instances appropriate for Rule 2 review in that defendant’s substantial rights are

affected.” Anderson, __ N.C. App. at __, __ S.E.2d at __, 2017 WL 3254414, at *7

(citation and internal quotation marks omitted).

      The State concedes both indictments for PWISD marijuana and PWISD heroin

near a park failed to contain the essential allegation that Defendant was over the age



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                                   Opinion of the Court



of 21. The State also concedes and it is well settled that “[a]n indictment charging a

statutory offense must allege all of the essential elements of the offense.” State v. De

La Sancha Cobos, 211 N.C. App. 536, 540, 711 S.E.2d 464, 468 (2011) (citing State v.

Crabtree, 286 N.C. 541, 544, 212 S.E.2d 103, 105 (1975)); see also State v. Perry, 291

N.C. 586, 597, 231 S.E.2d 262, 269 (1977) (holding the age of the defendant was an

essential element for first degree rape and a conviction could not stand where the

State failed to allege the defendant was over the age of 16); State v. Byrd, __ N.C.

__,796 S.E.2d 405, No. COA16-619, 2017 WL 676960, at *2 (unpublished) (holding

the offenses listed in N.C. Gen. Stat. § 90-95(e)(8), PWISD near a child care center,

required the State to allege and prove that Byrd was “21 years of age or older” at the

time of commission).

      Invalid indictments deprive the trial court of its jurisdiction. Wallace, 351 N.C.

at 503, 528 S.E.2d at 341. Appellate courts may consider challenges to facially invalid

indictments at any time, even when not contested at trial. State v. Braxton, 352 N.C.

158, 173, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S.1130, 148 L. Ed. 2d 797

(2001) (citation omitted); see also State v. Bartley, 156 N.C. App. 490, 499, 577 S.E.2d

319, 324 (2003) (“Our Supreme Court has stated that an indictment is fatally

defective when the indictment fails on the face of the record to charge an essential

element of the offense.”).




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                                 STATE V. CULBERTSON

                                   Opinion of the Court



      After reviewing Defendant’s claims and the State’s concession of error, in our

discretion and in the interest of judicial economy, manifest injustice would occur if

Defendant’s convictions were allowed to stand on charges, which the trial court did

not possess jurisdiction to impose sentence. For these reasons and in the exercise of

our discretion under Rule 2, we suspend Rule 21, and issue the writ of certiorari solely

to address the trial court’s lack of subject matter jurisdiction.

                            V. Analysis of Merits of Claims

      N.C. Gen. Stat. § 90-95(e)(10) provides, “any person 21 years of age or older

who commits an offense under [N.C. Gen. Stat. §] 90-95(a)(1) on property that is a

public park . . . shall be punished as a Class E felon.”

      Defendant was charged in count III of the indictment in 15 CRS 50339 as

follows,

             the defendant named above unlawfully, willfully, and
             feloniously did commit a violation of North Carolina
             General Statute 90-95, possess with the intent to sell and
             deliver marijuana, which is included in Schedule VI of the
             North Carolina Controlled Substances Act, within 1000
             feet of the boundary of real property used as a playground,
             Caldwell Park, located at 362 Georgia Street Southwest,
             Concord, North Carolina.

      Similarly in count I of the indictment in 15 CRS 50451, Defendant was charged

with PWISD heroin in the same park location. Neither indictment sets forth an

allegation of Defendant’s age or alleges that he is over the age of 21. Nothing in the




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                                    Opinion of the Court



record shows any stipulation or admission concerning Defendant’s age at the time of

his arrest.

      Based upon the State’s concession and this Court’s prior holdings, count III in

the multicount indictment in 15 CRS 50339 and count I in the multicount indictment

in 15 CRS 50451 are fatally deficient. The superior court did not possess jurisdiction

to accept Defendant’s plea and sentence him on these two counts.

      Because these convictions must be vacated, Defendant’s entire plea agreement

and the judgments entered thereon must be set aside and this matter remanded to

the trial court. We express no opinion on the merits of these two charges. Nothing

in this opinion binds the State or Defendant to the set aside vacated pleas or

sentences previously entered and vacated or restricts re-indictment.

                                     VI. Conclusion

      Defendant’s purported appeal of right is dismissed. In the exercise of our

discretion under Rule 2, and in the interest of judicial economy, Defendant’s petition

for writ of certiorari is allowed as set out above.

      The trial court did not possess jurisdiction to accept Defendant’s plea or to

impose judgments to PWISD marijuana near a park in count III of 15 CRS 50339 or

PWISD heroin near a park in count I of 15 CRS 50451. These convictions and

judgments thereon are vacated.




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                               STATE V. CULBERTSON

                                  Opinion of the Court



      Since the Defendant pled guilty to these offenses pursuant to a plea

arrangement, and the superior court entered consolidated judgments, the entire plea

arrangement must be set aside and this matter is remanded to the superior court for

further proceedings. In light of our decision, it is unnecessary to and we do not

address Defendant’s remaining arguments, which are rendered moot with the set

aside of the plea arrangement. It is so ordered.

      APPEAL DISMISSED. PETITION FOR WRIT OF CERTIORARI ALLOWED.

VACATED IN PART AND REMANDED.

      Judges ELMORE and STROUD concur.




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