An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                  NO. COA13-742
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 4 February 2014


STATE OF NORTH CAROLINA

      v.                                      Cabarrus County
                                              Nos. 09 CRS 7222-24, 704463,
                                              709818, 710308
YOSHEIKA CHARMAINE SMITH


      Appeal by Defendant from judgment entered 7 March 2013 by

Judge Tanya T. Wallace in Cabarrus County Superior Court. Heard

in the Court of Appeals 21 November 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Thomas E. Kelly, for the State.

      Amanda S. Zimmer for Defendant.


      STEPHENS, Judge.


                         I. Procedural History and Evidence

      This      appeal    arises    from    the    revocation       of   Defendant

Yosheika     Charmaine      Smith’s      probation.     On     24   August     2009,

Defendant       was   indicted     for   possession     with    intent    to    sell

cocaine (two counts), selling cocaine, delivering cocaine, and

selling    or    delivering      cocaine   near   a   playground.        Following
                                          -2-
Defendant’s 24 February 2011 Alford plea to the aforementioned

charges and to three counts of driving with a revoked license,

the trial court entered a consolidated judgment which imposed a

suspended prison sentence of 29 to 44 months.                         As a result,

Defendant was placed on supervised probation for 24 months.

    Less than five months later, Defendant’s probation officer

filed   a   report     alleging      that       Defendant   had   violated        four

conditions of her probation.              On 1 December 2011, after finding

that Defendant committed three of the alleged violations, the

trial   court     modified        Defendant’s      probation,     found     her     in

contempt, and ordered her to serve a thirty-day jail sentence.

    Another violation report was filed on 28 November 2012,

which alleged that Defendant was in arrears on her required

court payments, failed to complete assigned community service,

and had again been convicted of driving with a revoked license.

Defendant admitted these violations at her 4 March 2013 hearing.

After   finding      that    Defendant      had     “violated     her    supervised

probation   in    each      and   every    way    cited[,]”     the     trial   court

entered a 7 March 2013 judgment revoking Defendant’s probation

and activating her suspended sentence of 29 to 44 months of
                                          -3-
imprisonment.       From      the    7   March    2013      judgment    entered    upon

revocation of her probation, Defendant appeals.1

                                    II. Discussion

      Defendant brings forward two arguments on appeal:                       (1) that

the trial court lacked jurisdiction to revoke her probation for

selling/delivering       cocaine         near    a        playground     because      the

underlying indictment on that charge is fatally defective and

(2) that the trial court abused its discretion by revoking her

probation. As discussed herein, we vacate both the original and

probation revocation judgments and remand for resentencing.

      Defendant argues that the trial court lacked jurisdiction

to revoke her probation and activate her sentence on the charge

of   selling/delivering        cocaine     near       a    playground    because      the

indictment    for     that     offense     is     fatally        defective.    Because

Defendant    attacks    the         validity     of       the   underlying    judgment

against   her,   we    must    first     determine         whether     this   issue    is

properly before us.




1
  On 11 July 2013, Defendant filed a Motion for Appropriate
Relief (“MAR”) in this Court, asking that her sentence for
selling/delivering cocaine near a playground be vacated because
the judgment on that charge was entered upon a defective
indictment. As Defendant makes the same argument in her brief,
we dismiss her motion and address the issue in this opinion.
                                       -4-
      Over    forty    years   ago,    in    State     v.    Noles,    a    defendant

challenged the revocation of his probation by arguing that his

guilty plea to the underlying offenses which formed the basis of

the original judgment suspending his sentence was not entered

understandingly       and   voluntarily.      12     N.C.   App.    676,     678,    184

S.E.2d 409, 410 (1971). This Court found that when a defendant

appeals      from     an    order   activating        a     suspended       sentence,

“inquiries are permissible only to determine [(1)] whether there

is evidence to support a finding of a breach of the conditions

of the suspension, or [(2)] whether the condition which has been

broken is invalid because it is unreasonable or is imposed for

an unreasonable length of time.” Id. (citing State v. Caudle,

276 N.C. 550, 553, 173 S.E.2d 778, 781 (1970)). As a result,

this Court held that the defendant’s attempt to question “the

validity of the original judgment where sentence was suspended

on appeal from an order activating [his] sentence [constituted]

an impermissible collateral attack.” Id.

      More    recently,      this   Court    has     cited    the     general       rule

enunciated in Noles to dismiss several appeals challenging the

trial   court’s     jurisdiction      to    revoke    probation.       In    State    v.

Long, the defendant appealed from revocation of his probation

and   challenged      the   trial   court’s        jurisdiction       to    enter    the
                                       -5-
original    judgment    by   arguing      that   “the   trial   court    lacked

jurisdiction to accept his           [guilty]    plea and to suspend and

later activate the sentences . . . because [he] was not indicted

on these offenses and did not effectively waive                  the State’s

responsibility to charge him by a bill of indictment.”                  __ N.C.

App. __, __, 725 S.E.2d 71, 72, disc. review denied, 366 N.C.

227, 726 S.E.2d 836 (2012). Applying Noles, this Court refused

to reach the defendant’s argument, reasoning that

            [the] defendant could have appealed his 2
            July 2010 judgments as a matter of right or
            by petition in accordance with the procedures
            set forth in our statutes and appellate
            rules. However, because [the] defendant did
            not timely appeal by right or by petition
            from the 2 July 2010 judgments entered upon
            his guilty plea and only now attempts to
            attack these sentences imposed and suspended
            in 2010 in an appeal from the 7 March 2011
            judgments    revoking   his   probation,    we
            conclude, consistent with three decades of
            Court of Appeals[’] precedent, that this
            challenge is an impermissible collateral
            attack    on     the   original    judgments.
            Accordingly, this appeal must be dismissed.

Id.   at   __,   725   S.E.2d   at   73   (citations,    internal   quotation

marks, and alterations omitted).

      In State v. Hunnicutt, the defendant argued that “the trial

court lacked jurisdiction to revoke his probation in two of his

cases because the indictments underlying those offenses [were]

facially defective, and thus invalid.”            __ N.C. App. __, __, 740
                               -6-
S.E.2d 906, 909 (2013). The Court characterized the defendant’s

jurisdictional challenge in the following manner:

         A valid bill of indictment is essential to
         the jurisdiction of the Superior Court to try
         an accused for a felony and have the jury
         determine his guilt or innocence, and to give
         authority to the court to render a valid
         judgment. However, while it is true that a
         defendant may challenge the jurisdiction of a
         trial court, such challenge may be made in
         the appellate division only if and when the
         case is properly pending before the appellate
         division. Thus, a defendant on appeal from an
         order revoking probation may not challenge
         his adjudication of guilt, as questioning the
         validity of the original judgment where
         sentence was suspended on appeal from an
         order   activating   the   sentence   is   an
         impermissible collateral attack.

         [The] defendant contends that a challenge to
         the validity of an indictment, and thus the
         subject matter jurisdiction of the trial
         court, is not subject to the foregoing
         analysis,   due   to  our   Supreme  Court’s
         longstanding observation that a challenge to
         an indictment may be made at any time, even
         if it was not contested in the trial court.
         State v. Wallace, 351 N.C. 481, 503, 528
         S.E.2d 326, 341 (2000). However, we read
         Wallace and the other cases cited by [the]
         defendant as addressing the question of
         whether a challenge to an indictment must be
         preserved at the trial level in order to be
         raised on direct appeal. This is a different
         question than the one presented by the
         instant case, in which [the] defendant
         attempts to challenge the jurisdictional
         validity of an underlying judgment against
         him long after the time for perfection of an
         appeal of that judgment has expired.
                                             -7-
Id. (some citations, internal quotation marks, some brackets,

and ellipses omitted). Relying on Long and Noles, this Court

held that the defendant’s “argument [was] not properly before

[it] on appeal from a judgment revoking probation and activating

his suspended sentences.” Id. at __, 740 S.E.2d at 910.

       However, in a recent opinion marshaling the case law on

collateral attacks on judgments in probation revocation appeals,

a panel of this Court concluded that “Noles [was] applied in

both    Long     and    Hunnicutt       in   a     manner   inconsistent        with       our

Supreme Court precedent.” See State v. Pennell, __ N.C. App. __,

__, 746 S.E.2d 431, 439, supersedeas and disc. review allowed,

__ N.C. __, 748 S.E.2d 534 (2013). The central issue in Pennell

was    whether    the    defendant       could      challenge        the   trial     court’s

jurisdiction       to    revoke     his      probation      on   grounds       that       “the

underlying       indictment       for     his      conviction        of    larceny     after

breaking or entering . . . was fatally defective.” Id. at __,

746 S.E.2d at 443. After a thorough discussion of the pertinent

case law, the Pennell court held that a “[d]efendant may, on

appeal from revocation of probation, attack the jurisdiction of

the trial court, either directly or collaterally.” Id. at __,

746    S.E.2d     at    441   (emphasis          added).    As   a    backdrop       to   its

holding, the Court explained:
                                     -8-
            Both our Supreme Court and this Court, in
            opinions predating Long and Hunnicutt, have
            addressed issues concerning the jurisdiction
            of the trial court in appeals from probation
            revocation. . . . We are bound by precedent
            of our Supreme Court and, because this Court
            may not overrule its own opinions, we are
            also bound by the earlier opinions of this
            Court that conflict with Long and Hunnicutt.

Id. (citations omitted).

       Pennell undertakes an exhaustive review and sound analysis

of the “often contradictory” case law governing a defendant’s

“appeal from revocation of probation[,]” and we see no need to

repeat   that   discussion   here.   Id.     at   __,   746   S.E.2d       at   433.

Furthermore, the challenge in the instant case, as in Pennell,

is to the trial court’s jurisdiction to revoke probation when

the underlying judgment was entered upon an allegedly fatally

defective indictment. Accordingly, we conclude that Pennell and

the precedent upon which it relies compel us to reach the merits

of Defendant’s argument. See In re Appeal from Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of

the Court of Appeals has decided the same issue, albeit in a

different case, a subsequent panel of the same court is bound by

that   precedent,   unless   it   has      been   overturned    by     a    higher

court.”).
                                             -9-
    As     noted       above,    Defendant         argues    that     the       underlying

indictment for her conviction of selling/delivering cocaine near

a playground is fatally defective. At the time Defendant was

charged, certain drug offenses committed on “property that is a

public    park    or    within       1,000    feet   of     the   boundary        of    real

property that is a public park” constituted Class E felonies.

N.C. Gen. Stat. § 90-95(e)(10) (2007). Defendant contends that

the indictment on this charge “fails to allege [that] the sale

or delivery took place in a public park and fails [to name] the

individual       to    which    the     controlled        substance    was       sold    or

delivered.”       We agree that Defendant’s indictment on this charge

was fatally defective.

    The     superior      court’s       jurisdiction        cannot     rest      upon     an

invalid    indictment.         “[O]ur    Constitution        requires       a    bill     of

indictment, unless waived, for all criminal actions originating

in the Superior Court, and a valid bill is necessary to vest the

court    with    authority      to    determine      the    question    of       guilt    or

innocence.” State v. Bissette, 250 N.C. 514, 515, 108 S.E.2d

858, 859 (1959). It is well settled that an indictment for the

sale or delivery of a controlled substance must name the person

to whom the defendant allegedly sold or delivered the narcotics

or, in the alternative, allege that the name of the person is
                                -10-
unknown. State v. Bennett, 280 N.C. 167, 168, 185 S.E.2d 147,

148 (1971); Bissette, 250 N.C. at 517, 108 S.E.2d at 861 (“Where

a sale is prohibited, it is necessary, for a conviction, to

allege in the bill of indictment the name of the person to whom

the sale was made or that his name is unknown, unless some

statute eliminates that requirement.”).

    Here,   Defendant   was   charged   with   selling   or   delivering

cocaine near a playground as follows:

         The Jurors for the State upon their oath
         present that on or about the date of the
         offense shown and in the county named above,
         the   defendant   named   above   unlawfully,
         willfully, and feloniously did commit an
         offense under North Carolina General Statute
         90-95(a)(1) of sell and deliver, a controlled
         substance Cocaine, within 1,000 feet of the
         real property boundary of Concord Chase
         Apartment’s play ground [sic].

There is no indication in the indictment or the record as to

whether the “Concord Chase Apartment’s play ground [sic]” is a

public park under section 90-95(e)(10).2 However, we need not



2
  A previous version of the statute provided that “[a]ny person
21 years of age or older who commits an offense under G.S. 90–
95(a)(1) on property that is a playground in a public park or
within 300 feet of the boundary of real property that is a
playground in a public park shall be punished as a Class E
felon.” See N.C. Gen. Stat. § 90-95(e)(10)(2005). The term
“playground” was defined as “any outdoor facility . . . intended
for recreation open to the public.” Id. However, the General
Assembly amended section 90–95(e)(10) to remove the word
                                          -11-
make this determination. The indictment alleges neither the name

of the person to whom Defendant allegedly sold cocaine nor that

the name of the person is unknown. “Lacking either of these

allegations,           the      indictment        [charging           Defendant           with

selling/delivering            cocaine     near     a     playground]            is   fatally

defective and cannot sustain the [underlying] judgment in this

case.” State v. Long, 14 N.C. App. 508, 510, 188 S.E.2d 690, 691

(1972).    Thus,       “[t]he    trial    court        [had]     no    jurisdiction        to

convict    or    sentence       Defendant       for     [this]    .    .    .    charge[.]”

Pennell, __ N.C. App. at __, 746 S.E.2d at 444. We therefore

vacate the 24 February 2011 judgment which was entered upon

Defendant’s      consolidated       convictions         and    remand       to    the   trial

court    for    entry    of    judgment     and    resentencing            on    Defendant’s

remaining convictions:            possession with intent to sell cocaine

(two counts), selling cocaine, delivering cocaine, and driving

with a revoked license (three counts). See State v. Wortham, 318

N.C.    669,    674,    351    S.E.2d    294,     297    (1987)       (“[W]e      think   the

better procedure is to remand for resentencing when one or more

but not all of the convictions consolidated for judgment has

been vacated.”).



“playground” and the sentence defining “playground.” See 2007
N.C. Sess. Laws ch. 375, §§ 1-2.
                                     -12-
    Further,     we   must    also     vacate     the        judgment    revoking

Defendant’s   probation.      A   “trial      judge     is    required    by    the

Structured Sentencing Act to enter judgment on a sentence for

the most serious offense in a consolidated judgment[.]”                    State

v. Tucker, 357 N.C. 633, 637, 588 S.E.2d 853, 855 (2003); N.C.

Gen. Stat. § 15A-1340.15(b) (2011) (“The judgment shall contain

a sentence disposition specified for the class of offense and

prior record level of the most serious offense, and its minimum

sentence of imprisonment shall be within the ranges specified

for that class of offense and prior record level[.]”).                     Here,

Defendant’s    conviction     for     sell/deliver           cocaine     near    a

playground pursuant to       N.C. Gen. Stat.          § 90-95(e)(10)       was a

Class E felony, the most serious offense of those consolidated

for judgment by the trial court.            Thus, Defendant’s sentence was

entered upon her conviction for sell/deliver near a playground,

a conviction based upon a fatally flawed indictment.

    “A sentence based upon a conviction supported by a fatally

defective indictment is a nullity and, therefore, not a valid

sentence.”    Pennell, __ N.C. App. at __, 746 S.E.2d at 441.                    In

turn,

          having   no  jurisdiction   to   convict   or
          sentence Defendant for this . . . charge,
          [the   trial  court]   was  equally   without
          jurisdiction  to   revoke  probation   on   a
                                -13-
         conviction that did not legally exist, or to
         activate a sentence never legally imposed.
         Because the trial court lacked jurisdiction
         to activate any sentence imposed . . . ,
         activation of that sentence is also a
         nullity. Defendant cannot have violated the
         probation terms of a suspended sentence
         which was void. Accordingly, we also vacate
         the judgment revoking Defendant’s probation.

Id. at __, 746 S.E.2d at 444.

    VACATED and REMANDED FOR RESENTENCING.

    Judges GEER and ERVIN concur.

    Report per Rule 30(e).
