              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1135

                                Filed: 21 May 2019

Guilford County, Nos. 13 CRS 82502-03

STATE OF NORTH CAROLINA

             v.

DANIEL YAIR MARINO


      Appeal by Defendant from an Order entered 26 January 2018 by Judge Susan

E. Bray in Guilford County Superior Court.      Heard in the Court of Appeals 28

February 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
      Uicker, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
      Grant, for defendant-appellant.


      HAMPSON, Judge.


                     Factual and Procedural Background

      This matter involves a Motion for Appropriate Relief (MAR) filed by Daniel

Yair Marino (Defendant) on 25 October 2017, seeking relief from criminal convictions.

The Record based upon the proceedings on the MAR below tends to show the following

relevant facts:

      On 16 September 2013, a Guilford County Grand Jury indicted Defendant for

one count of Trafficking in Cocaine, a Class D felony; two counts of Trafficking in
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                                          Opinion of the Court



Marijuana, Class H felonies; one count of Possession with Intent to Sell or Deliver

Marijuana, a Class I felony; and one count of Maintaining a Dwelling for the Keeping

or Selling of Marijuana and Cocaine, a Class I felony.                         Pursuant to a plea

arrangement, Defendant entered an Alford plea to the charged offenses on 11 June

2015. The terms and conditions of the parties’ plea agreement provided:

            1. That the charges shall be consolidated [under the Class D
            Trafficking in Cocaine charge] for judgment purposes.

            2. That prayer for judgment shall be continued until on or after
            the criminal term beginning pursuant to [N.C. Gen. Stat. §] 90-
            95(h)(5). That the defendant agrees, if called upon by the State,
            to provide truthful testimony against any charged co-defendant
            in these matters.

            3. That upon the State’s prayer for judgment, the Court shall
            impose any additional terms deemed appropriate.

        Approximately 19 months later, the State prayed for entry of judgment against

Defendant. The trial court held Defendant’s sentencing hearing on 4 January 2017.

At this hearing, the State and defense counsel were given the opportunity to present

arguments regarding Defendant’s sentence. The State informed the trial court that

Defendant had provided the State with “substantial assistance” within the meaning

of N.C. Gen. Stat. § 90-95(h)(5),1 and Defendant’s counsel urged the trial court to

consider Defendant’s efforts when sentencing Defendant.


        1 N.C. Gen. Stat. § 90-95(h)(5) authorizes a trial court to deviate from the mandatory
sentencing guidelines under Section 90-95 if the trial court finds the defendant provided the State
with “substantial assistance in the identification, arrest, or conviction of any accomplices, accessories,
co-conspirators, or principals[.]” N.C. Gen. Stat. § 90-95(h)(5) (2017).

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      After finding Defendant provided substantial assistance to the State, the trial

court sentenced Defendant to an active term of a minimum of 48 months and a

maximum of 70 months, and ordered Defendant to pay a $25,000 fine. This sentence

was substantially lower than the sentence Defendant would have received had he not

provided substantial assistance to the State, which the trial court acknowledged was

a minimum of 175 months and a maximum of 222 months, plus a $250,000 fine. The

written Judgment was entered on 6 January 2017; however, there was a clerical error

in this Judgment, which was corrected by written Judgment on 27 February 2017.

      On 25 October 2017, Defendant filed a MAR requesting the trial court set aside

the sentence imposed on Defendant. According to Defendant’s MAR, the trial court

lacked jurisdiction to enter the sentence because of N.C. Gen. Stat. § 15A-1331.2,

which requires the trial court enter final judgment on certain high-level felonies,

including Class D felonies, within 12 months of the trial court entering a prayer for

judgment continued (PJC). After hearing arguments from the State and defense

counsel, the trial court issued an Order denying Defendant’s MAR (MAR Order) on

26 January 2018. In its MAR Order, the trial court concluded Section 15A-1331.2

does not mention jurisdiction and that a violation of this statute does not divest the

trial court of jurisdiction to enter judgment on a PJC after 12 months. Defendant

petitioned this Court for a Writ of Certiorari to review the MAR Order. We granted




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Defendant’s Petition for the purpose of granting Defendant an appeal. Defendant has

prosecuted his appeal, and we now review the merits of his argument.

                                         Issue

      The sole issue on appeal is whether Section 15A-1331.2 of our General Statutes

divested the trial court of jurisdiction to enter Judgment on Defendant’s plea to Class

D Trafficking in Cocaine.

                                Standard of Review

      “When considering rulings on motions for appropriate relief, we review the

trial court’s order to determine ‘whether the findings of fact are supported by

evidence, whether the findings of fact support the conclusions of law, and whether

the conclusions of law support the order entered by the trial court.’ ” State v. Frogge,

359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712,

720, 291 S.E.2d 585, 591 (1982)). “Conclusions of law are reviewed de novo and are

subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)

(citations omitted).   This Court has stated, “If the issues raised by Defendant’s

challenge to [the trial court’s] decision to deny his [MAR] are primarily legal rather

than factual in nature, we will essentially use a de novo standard of review in

evaluating Defendant’s challenges to [the court’s] order.” State v. Jackson, 220 N.C.

App. 1, 8, 727 S.E.2d 322, 329 (2012) (first and third alteration in original) (citation

and quotation marks omitted).



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      Here, Defendant challenges the trial court’s MAR Order on legal rather than

factual grounds, asserting that N.C. Gen. Stat. § 15A-1331.2 divested the trial court

of jurisdiction to enter Judgment on Defendant’s plea to Class D Trafficking in

Cocaine. See, e.g., State v. Hayes, ___ N.C. App. ___, ___, 788 S.E.2d 651, 652 (2016)

(“Issues of statutory construction are questions of law which we review de novo on

appeal[.]” (citation omitted)); Powers v. Wagner, 213 N.C. App. 353, 357, 716 S.E.2d

354, 357 (2011) (“This Court’s determination of whether a trial court has subject

matter jurisdiction is a question of law that is reviewed on appeal de novo.” (citation

and quotation marks omitted)). Therefore, we employ a de novo review.

                                      Analysis

      A. Background Law on PJCs

      “Once a guilty plea is accepted in a criminal case, a trial court may continue

the case to a subsequent date for sentencing.” State v. Watkins, 229 N.C. App. 628,

631, 747 S.E.2d 907, 910 (2013) (citing State v. Absher, 335 N.C. 155, 156, 436 S.E.2d

365, 366 (1993)); see also N.C. Gen. Stat. § 15A-1334(a) (2017) (allowing “continuance

of the sentencing hearing”); id. § 15A-1416(b)(1) (2017) (allowing the State to move

for imposition of sentence when prayer for judgment has been continued). “This

continuance is frequently referred to as a ‘prayer for judgment continued’ . . . [and]

vests a trial judge presiding at a subsequent session of court with the jurisdiction to

sentence a defendant for crimes previously adjudicated.” State v. Degree, 110 N.C.



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App. 638, 640-41, 430 S.E.2d 491, 493 (1993) (emphasis added); see also Miller v.

Aderhold, 288 U.S. 206, 211, 77 L. Ed. 702, 705-06 (1933) (“[W]here verdict has been

duly returned, the jurisdiction of the trial court . . . is not exhausted until sentence is

pronounced, either at the same or a succeeding term.” (citations omitted)).

      Under our common law, a PJC may be for a definite or indefinite period of time,

as long as it is entered “within a reasonable time”; otherwise, the trial court loses

jurisdiction. Degree, 110 N.C. App. at 641, 430 S.E.2d at 493 (citation and quotation

marks omitted). Our Supreme Court has clarified that “[a]s long as a prayer for

judgment is not continued for an unreasonable period, . . . and the defendant was not

prejudiced, . . . the court does not lose the jurisdiction to impose a sentence.” Absher,

335 N.C. at 156, 436 S.E.2d at 366 (citations omitted). “Deciding whether sentence

has been entered within a ‘reasonable time’ requires consideration of the reason for

the delay, the length of the delay, whether defendant has consented to the delay, and

any actual prejudice to defendant which results from the delay.” Degree, 110 N.C.

App. at 641, 430 S.E.2d at 493 (citation omitted); see also State v. Lea, 156 N.C. App.

178, 180, 576 S.E.2d 131, 133 (2003) (upholding as reasonable a sentence entered over

five years after defendant was convicted).

      B. N.C. Gen. Stat. § 15A-1331.2




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        In 2012, the Legislature enacted N.C. Gen. Stat. § 15A-1331.2, titled “Prayer

for Judgment Continued for a Period of Time that Exceeds 12 Months Is an Improper

Disposition of a Class B1, B2, C, D, or E Felony,” which provides:

                The court shall not dispose of any criminal action that is a
            Class B1, B2, C, D, or E felony by ordering a prayer for judgment
            continued that exceeds 12 months. If the court orders a prayer
            for judgment continued in any criminal action that is a Class B1,
            B2, C, D, or E felony, the court shall include as a condition that
            the State shall pray judgment within a specific period of time not
            to exceed 12 months. At the time the State prays judgment, or 12
            months from the date of the prayer for judgment continued order,
            whichever is earlier, the court shall enter a final judgment unless
            the court finds that it is in the interest of justice to continue the
            order for prayer for judgment continued. If the court continues
            the order for prayer for judgment continued, the order shall be
            continued for a specific period of time not to exceed 12 months.
            The court shall not continue a prayer for judgment continued
            order for more than one additional 12-month period.

N.C. Gen. Stat. § 15A-1331.2 (2017). Whether, and to what extent, N.C. Gen. Stat. §

15A-1331.2 imposes stricter jurisdictional requirements on a trial court for these

high-level felonies than at common law presents a question of first impression for this

Court.2

        Here, Defendant’s plea to a Class D felony and the trial court’s 27 February

2017 Judgment unquestionably failed to comply with the requirements of N.C. Gen.

Stat. § 15A-1331.2, which provides that if a trial court orders a PJC for a Class D


        2Watkins   represents the only published opinion from either of our appellate courts that
mentions the statute in question; however, we did not address this statute’s impact on our previous
case law. 229 N.C. App. at 631 n.2, 747 S.E.2d at 910 n.2 (“[W]e do not reach the issue of how this
statute affects the rules laid out in Degree and Absher as the statute [is inapplicable in this case].”).

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                                   Opinion of the Court



felony, the trial court must include a condition that the State pray for judgment

“within a specific period of time not to exceed 12 months.” See N.C. Gen. Stat. § 15A-

1331.2.    Here, Defendant’s plea agreement contained no such provision.

Approximately 19 months after Defendant’s conviction, the State prayed for

judgment, and Defendant’s Judgment was entered. No further order was entered

during this 19-month time period continuing the case for up to the additional 12

months under the statute.       As a result, the ultimate issue presented for our

consideration in this case is whether the fact that Defendant’s PJC failed to comply

with the time-limit requirements set out in N.C. Gen. Stat. § 15A-1331.2 deprived the

trial court of jurisdiction to enter Judgment against Defendant.

      It is axiomatic that “[w]here jurisdiction is statutory and the Legislature

requires the Court to exercise its jurisdiction in a certain manner, to follow a certain

procedure, or otherwise subjects the Court to certain limitations, an act of the Court

beyond these limits is in excess of its jurisdiction.” In re T.R.P., 360 N.C. 588, 590,

636 S.E.2d 787, 790 (2006) (citation and quotation marks omitted). “The extent, if

any, to which a particular statutory provision creates a jurisdictional requirement

hinges upon the meaning of the relevant statutory provisions.” State v. Brice, 370

N.C. 244, 251, 806 S.E.2d 32, 37 (2017) (citation omitted).

      Under North Carolina law, “[t]he primary rule of construction of a statute is to

ascertain the intent of the legislature and to carry out such intention to the fullest



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                                   Opinion of the Court



extent.” Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 137

(1990) (citation omitted). “The best indicia of [the legislative] intent are the language

of the statute . . . , the spirit of the act[,] and what the act seeks to accomplish.”

Concrete Co. v. Board of Commissioners, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)

(citation omitted).

          If the language of a statute is free from ambiguity and expresses
          a single, definite, and sensible meaning, judicial interpretation is
          unnecessary and the plain meaning of the statute controls.
          Conversely, where a literal interpretation of the language of a
          statute will lead to absurd results, or contravene the manifest
          purpose of the Legislature, as otherwise expressed, the reason
          and purpose of the law shall control and the strict letter thereof
          shall be disregarded.

Mazda Motors v. Southwestern Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979)

(citations and quotation marks omitted). Although we generally construe criminal

statutes against the State, “[a] criminal statute is still construed utilizing ‘common

sense’ and legislative intent.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277

(2005) (quoting State v. Jones, 358 N.C. 473, 478, 598 S.E.2d 125, 128 (2004)); see also

Darby v. Darby, 135 N.C. App. 627, 628, 521 S.E.2d 741, 742 (1999) (“[T]he courts in

reading our statutes must import common sense to the meaning of the legislature’s

words to avoid an absurdity.” (citation omitted)).

      We acknowledge the language of N.C. Gen. Stat. § 15A-1331.2 is unambiguous

in prohibiting a trial court from entering an indefinite PJC for these high-level

crimes. However, nothing in Section 15A-1331.2 suggests its provisions should be


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construed as jurisdictional in nature. On its face, the statute in question fails to

mention jurisdiction or any consequences for not adhering to its directives. We

therefore must look to the Legislature’s intent in enacting this statute to determine

whether noncompliance strips the trial court of jurisdiction to enter final judgment.

See Brice, 370 N.C. at 251, 806 S.E.2d at 37.

       After reviewing the legislative history of this statute, which we acknowledge

is scant, it is apparent that the purpose of Section 15A-1331.2 is to ensure those

charged with the highest level offenses under our statutes do not escape punishment

by receiving an indefinite PJC.3 By only limiting the trial court’s ability to enter



       3   The Bill creating this statute originated in the House of Representatives and read as follows:

                 The court shall not dispose of any criminal action that is a Class B, C, D,
             or E felony by ordering a prayer for judgment continued that exceeds 12
             months. If the court orders a prayer for judgment continued in any criminal
             action that is a Class B, C, D, or E felony, the court shall include as a condition
             that the State shall pray judgment within a specific period of time, not to
             exceed 12 months, and the court shall enter a final judgment at the time the
             State prays judgment or 12 months from the date of the prayer for judgment
             continued order, whichever is earlier.

H.R. 852, 2011 Gen. Assemb., Reg. Sess. (N.C. Apr. 6, 2011) (originally proposed bill). After passing a
first reading in the House, this Bill was referred to the House Committee on Judiciary Subcommittee
B, where it was amended to its current version. See H.R. 852, 2011 Gen. Assemb., Reg. Sess. (N.C.
Apr. 27, 2011) (edition 2). The Minutes from this Subcommittee shed little light on the discussions
regarding the changes to this Bill. See Minutes of H. Comm. on Judiciary Subcomm. B, 2011 Gen.
Assemb., Reg. Sess. (N.C. Apr. 26, 2011).

        When this Bill was read for the second time in the House, the sponsor of the Bill, Rep. Timothy
Spear, and three other Representatives spoke in support of it, describing it as an attempt to ensure
that a PJC is not a final disposition in these high-level felony cases and to be “tougher on crime.” See
House     Audio     Archives,      2011     Gen.    Assemb.,      Reg.   Sess.     (Apr.   28,    2011),
https://www.ncleg.gov/DocumentSites/HouseDocuments/2011-
2012%20Session/Audio%20Archives/2011/04-28-2011.mp3 (remarks by Reps. Guice, Spear, Engle, and



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indefinite PJCs in the most serious offenses, the Legislature evinces an intent to

expedite entry of final judgment for high-level crimes and guarantee that defendants

convicted of these high-level crimes do not avoid sentencing for extended periods of

time, which was and still is possible for defendants convicted of less serious offenses.

See, e.g., State v. Pelley, 221 N.C. 487, 496-98, 20 S.E.2d 850, 856-57 (1942) (upholding

a delay of almost seven years between PJC and entry of final judgment).

       Defendant contends a violation of Section 15A-1331.2 relinquishes the trial

court of jurisdiction under the plain language of the statute, which used mandatory

language. However, although the provisions of this statute are couched in mandatory

terms, that fact, standing alone, does not make them jurisdictional in nature. See,

e.g., State v. House, 295 N.C. 189, 203, 244 S.E.2d 654, 662 (1978) (stating the words

“must” or “shall” in a statute does not always “indicate a legislative intent to make a

provision of the statute mandatory[] and a failure to observe it fatal to the validity of

the purported action”).4




Faircloth at 3:59:00 to 4:05:00). These brief remarks constitute the only substantive discussions of
this Bill. Eventually, the exact language of this Bill was placed in Senate Bill 707, which became law
in 2012. See School Violence Prevention Act of 2012, 2012 N.C. Sess. Law 149, § 11 (N.C. 2012); see
also 2012 N.C. Sess. Law 194, § 45.(e) (N.C. 2012) (recodifying Section 11 of Session Law 149 as N.C.
Gen. Stat. § 15A-1331.2).
         4 Our view of Section 15A-1331.2 is analogous to the treatment of N.C. Gen. Stat. § 7B-1109(e),

which provides strict timelines for entry of orders in termination of parental rights proceedings. See
N.C. Gen. Stat. § 7B-1109(e) (2017). This Court has recognized the failure to enter an order within
the statutory timelines does not automatically result in the order being vacated. See In re J.L.K., 165
N.C. App. 311, 316, 598 S.E.2d 387, 391 (2004). Our Supreme Court has further held the remedy to
enforce these statutory timelines is through mandamus. In re T.H.T., 362 N.C. 446, 455, 665 S.E.2d



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       The effect of adopting the construction of N.C. Gen. Stat. § 15A-1331.2

espoused by Defendant, which would prohibit a trial court from entering judgment

on an indefinite PJC after 12 months (or 24 months if either party obtains an

extension) for our State’s most serious offenses, cannot be squared with the likely

legislative intent motivating the enactment of this statutory provision. See Mazda

Motors, 296 N.C. at 361, 250 S.E.2d at 253 (holding where an interpretation of a

statute would “contravene the manifest purpose of the Legislature, . . . the reason

and purpose of the law shall control” (citations omitted)). As previously discussed, it

is apparent our Legislature never intended that a violation of Section 15A-1331.2

would strip the trial court of jurisdiction to enter judgment on these high-level

offenses. Because the intent of the Legislature controls, we hold that noncompliance

with N.C. Gen. Stat. § 15A-1331.2 does not automatically divest the trial court of

jurisdiction to enter a final judgment.           See id.      Rather, whether the trial court

retained jurisdiction must be assessed using the standards set out in Absher and

Degree.

       Applying these principles, we hold the trial court’s delay in sentencing

Defendant was not unreasonable nor was Defendant prejudiced by this delay. First,

the Record shows, and Defendant concedes, that Defendant did not object to the trial



54, 60 (2008) (“In cases such as the present one in which the trial court fails to adhere to statutory
time lines, mandamus is an appropriate and more timely alternative than an appeal.”).




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court’s PJC entered upon Defendant’s Alford plea, and thereafter Defendant never

requested the trial court enter judgment on his conviction. His failure to do either is

“tantamount to his consent to a continuation of” judgment during that time period.

Degree, 110 N.C. App. at 641-42, 430 S.E.2d at 493.                   Secondly, the length of

Defendant’s delay, approximately 19 months, is well within the range of delays

previously upheld by our courts. See Pelley, 221 N.C. at 496-98, 20 S.E.2d at 856-57

(approximately seven-year delay upheld); see also Lea, 156 N.C. App. at 180, 576

S.E.2d at 133 (five-year delay upheld); State v. Mahaley, 122 N.C. App. 490, 491-93,

470 S.E.2d 549, 550-52 (1996) (four-year, six-month delay upheld).5

       Lastly, Defendant suffered no prejudice as a result of this delay. The purpose

for Defendant’s PJC was to allow Defendant time to provide substantial assistance to

the State in accordance with his plea agreement. Because of this delay in sentencing,

Defendant was able to provide substantial assistance, and as a result, Defendant

received a significantly lower sentence than he would have had he not been able to

provide assistance to the State. Further, Defendant does not argue he was prejudiced

in any way by the trial court’s failure to enter judgment within 12 months.




       5 We further note had (1) Defendant’s plea agreement included a condition that the State pray
for judgment within a specific period of time not to exceed 12 months and (2) the State moved for an
additional 12-month continuance within the first 12-month period, the 19-month period in this case
would have complied with the statutory requirements of Section 15A-1331.2. See N.C. Gen. Stat. §
15A-1331.2.

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      Accordingly, we hold that the Judgment was entered within a reasonable

period of time and that Defendant suffered no actual prejudice thereby. Because the

trial court did not lose jurisdiction to enter Judgment against Defendant, the trial

court correctly denied Defendant’s MAR.

                                   Conclusion

      For the foregoing reasons, we conclude the trial court retained jurisdiction to

enter Judgment on 27 February 2017. Therefore, we affirm the trial court’s MAR

Order.

      AFFIRMED.

      Judges ZACHARY and BERGER concur.




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