An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-472
                        NORTH CAROLINA COURT OF APPEALS
                              Filed:     15 July 2014
STATE OF NORTH CAROLINA

                                              Wilkes County
      v.                                      Nos. 11 CRS 50057-61, 50065-67,
                                              50499-506, 1078-1084

JOHN DERRICK MCCULLOCH


      Appeal by defendant from judgments entered 16 November 2012

by Judge R. Stuart Albright in Wilkes County Superior Court.

Heard in the Court of Appeals 10 October 2013.

      Attorney General Roy Cooper, by Assistant Attorney General
      Tiffany Y. Lucas, for the State.

      Gerding Blass, PLLC, by Danielle Blass, for Defendant.

      ERVIN, Judge.

      Defendant     John    Derrick    McCulloch       appeals    from   judgments

revoking his probation and activating his suspended sentences

based on a determination that he                had willfully violated the

terms and conditions of his probation without lawful excuse.                      On

appeal,     Defendant      argues   that    the    trial    court     lacked    the

authority     to   revoke    his    probation     in    certain    cases   on   the

grounds that the jurisdictional prerequisites for taking that

action had not been satisfied.              After careful consideration of
                                       -2-
Defendant’s challenge to the trial court’s judgments in light of

the record and the applicable law, we conclude that the trial

court’s judgments should remain undisturbed.

                            I. Factual Background

                          A. Wilkes County Judgments

       On 7 January 2011, warrants for arrest were issued charging

Defendant with eleven counts of identity theft and six counts of

attempted identity theft.            On 17 February 2011, warrants for

arrest charging Defendant with five counts of felonious breaking

or entering, one count of larceny of a firearm, three counts of

felonious larceny, and two counts of injury to real property

were   issued.       On    21    September    2011,     informations     charging

Defendant with eight counts of conspiracy to commit identity

theft, two counts of attempted identity theft, five counts of

felonious     breaking     or    entering,    one   count   of      larceny   of   a

firearm, two counts of injury to real property, and four counts

of felonious larceny were executed and subsequently placed in

the relevant court files.           On the same date, Defendant entered

pleas of guilty to eight counts of conspiracy to commit identity

theft, two counts of attempted identity theft, five counts of

felonious     breaking     and   entering,    one   count      of   larceny   of   a

firearm, four counts of felonious larceny, and two counts of

injury   to   real   property      pursuant    to   a   plea    agreement     which
                                               -3-
provided that, in return for Defendant’s guilty pleas, the State

would voluntarily dismiss nine counts of identity theft, three

counts of attempted identity theft, and one count of driving

while   license      revoked          and    that       Defendant        would         receive      ten

consecutive        suspended          sentences,             be      placed        on      intensive

probation, and make restitution to the victims of his conduct in

an amount to be determined at a later time.                                      After accepting

Defendant’s       guilty       pleas,        Judge       Jeanie         R.       Houston     entered

judgments     that,       when        viewed      in         their      entirety,          sentenced

Defendant     to     ten       consecutive              terms      of     9       to    11    months

imprisonment       that    were       each     suspended           for    36      months      on    the

condition     that    Defendant             pay     the       costs,         a    $250.00      fine,

$1,716.00    in     restitution,            and     a    $937.50         attorney’s          fee;    be

placed on intensive probation; and comply with the usual terms

and conditions of probation.

                               B. Ashe County Judgments

       On 27 January 2011, a warrant for arrest charging Defendant

with    possession        of    a     Schedule          II    controlled           substance        and

possession of drug paraphernalia was issued.                                      On 28 January

2011, a warrant for arrest charging Defendant with misdemeanor

larceny was issued.              On 18 February 2011, warrants for arrest

charging    Defendant          with    two     counts         of     obtaining         property      by

false pretenses were issued.                      On 3 March 2011, warrants for
                                           -4-
arrest     charging      Defendant      with      twelve     counts       of     obtaining

property by false pretenses were issued.                         On 12 June 2011, a

warrant for arrest charging Defendant with misdemeanor larceny

was issued.         On 22 September 2011, Defendant entered no contest

pleas    to    fourteen      counts     of       obtaining       property       by    false

pretenses, one count of felonious possession of a Schedule II

controlled substance, one count of misdemeanor possession of a

Schedule      II    controlled     substance,       two    counts        of    misdemeanor

larceny, two counts of writing a worthless check, two counts of

possession     of     drug   paraphernalia,        and     two    counts       of    driving

while license revoked pursuant to a plea agreement under which

the State agreed to voluntarily dismiss nine counts of obtaining

property by false pretenses and Defendant would receive seven

consecutive suspended sentences, be placed on probation, and pay

restitution.          Based upon Defendant’s no contest pleas, Judge

David V. Byrd entered judgments that, viewed in their entirety,

sentenced     Defendant      to    seven     consecutive         terms    of    11    to    14

months imprisonment that were each suspended for a period of 36

months on the condition that Defendant pay the costs, $21,156.60

in restitution, and a $1,125.60 attorney’s fee; be placed on

supervised         probation;     and   comply     with     the     usual       terms      and
                                     -5-
conditions of probation.1          Defendant’s probation in these Ashe

County cases was transferred to Wilkes County.

              C. Revocation of Defendant’s Probation

    On 16 November 2011, Defendant’s probation officer filed

violation reports requesting revocation of Defendant’s probation

in the ten Wilkes County and seven Ashe County cases on the

grounds that Defendant had willfully failed to abide by his

court-ordered curfew requirement, missed multiple appointments

with his probation officer, and failed to make required monthly

restitution and supervision fee payments.              On 14 December 2011,

Defendant’s probation officer filed addenda to these violation

reports alleging that Defendant had committed further violations

of the terms and conditions of his probation by failing to abide

by his curfew and leaving the jurisdiction of the court without

permission.

    A   hearing   concerning       the    allegations   advanced   in   these

violation reports was held before the trial court in Wilkes

County Superior Court on 16 November 2012.                At that hearing,

Defendant   admitted   that   he    had    willfully    and   without   lawful
    1
      In six of the seven Ashe County judgments, the only
conviction upon which Defendant’s sentence was based was for
obtaining property by false pretenses. However, in the seventh
Ashe County judgment, Judge Byrd consolidated nine convictions
for obtaining property by false pretenses, two counts of
misdemeanor   larceny,   one   count   of possession of   drug
paraphernalia, and one count of driving while license revoked
for judgment before imposing sentence.
                                           -6-
excuse violated the terms and conditions of his probation and

requested that he either be allowed to continue on probation, or

in the alternative, that the Wilkes County sentences be served

concurrently with the Ashe County sentences, with this request

being predicated on the theory that the two groups of cases were

connected.       Defendant’s mother, Linda McCulloch, who was the

alleged victim in certain of the underlying cases, attributed

Defendant’s unlawful conduct and failures to comply with the

terms and conditions of his probation to problems stemming from

drug addiction and requested the trial court to be lenient.                          At

the conclusion of the revocation hearing, the trial court stated

that,     even   though      Defendant     “ha[d]      been   given    chance     after

chance after chance after chance,” he had violated the terms and

conditions of his probation when “the ink [was] not even dry on

the judgment” and that the probationary process “didn’t work for

[Defendant]      at   all.”      As   a    result,     the    trial   court   entered

judgments finding that Defendant had wilfully violated the terms

and conditions of his probation without lawful excuse and had

absconded, that his probation should be revoked, and that each

of his seventeen suspended sentences should be activated and

served consecutively.           Defendant noted an appeal to this Court

from the trial court’s judgments.2

     2
         Although     this    Court       filed   an    opinion       reversing     the
                                           -7-
                       II. Substantive Legal Analysis

      In    his    sole   challenge     to       the   trial    court’s     judgments,

Defendant contends that the trial court lacked the authority to

revoke his probation and activate his suspended sentences in the

Ashe County cases.3         More specifically, Defendant contends that

the trial court lacked jurisdiction over the subject matter of

the   Ashe    County      cases   as   a     result     of     the   fact    that   the

prerequisites for the revocation of a defendant’s probation set

out   in   N.C.    Gen.   Stat.   §    7A-271(e)       had     not   been   satisfied.

Defendant     is    not   entitled     to    relief      on    the   basis    of    this

contention.

      A judgment entered by a court which lacks jurisdiction is

void.      Stroupe v. Stroupe, 301 N.C. 656, 661, 273 S.E.2d 434,

438 (1981).         As a result of the fact that “the issue of a

court’s jurisdiction over a matter may be raised at any time,

even for the first time on appeal or by a court sua sponte,

State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622

revocation of Defendant’s probation and the activation of
Defendant’s suspended sentences in the Ashe County cases on 18
March 2014, we withdrew our initial opinion on 3 April 2014 in
light of the filing of a motion questioning the factual basis
for our initial decision. The present opinion is intended to be
a substitute for our earlier decision, which should be deemed to
be void and of no effect.
     3
       As a result of the fact that Defendant has not challenged
the validity of the trial court’s decision to revoke his
probation and activate his suspended sentences in the Wilkes
County cases in his brief, the trial court’s decision in the
Wilkes County cases is not properly before us for review.
                                               -8-
(2008), the fact that Defendant failed to challenge the court’s

jurisdiction over the subject matter of a particular proceeding

before the trial court does not ordinarily stand as a bar to the

assertion of that jurisdictional challenge on appeal.                              However,

despite the fact that “[a void judgment] neither binds nor bars

any     one,”    so     that        “all    proceedings        founded      upon    it     are

worthless,” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790

(2006) (quotations omitted), “a defendant may not challenge the

jurisdiction over the original conviction in an appeal from an

order revoking his probation and activating his sentence” on the

grounds    that       such     an    assertion          constitutes   an    impermissible

collateral       attack      on      the    underlying       conviction.           State    v.

Pennell, __ N.C. __, __, __ S.E.2d __, __ (2014).                            As a result,

while     Defendant       is        entitled       to    attack   the      trial    court’s

jurisdiction to revoke his probation on appeal without having

raised that issue in the trial court, he is not entitled to

challenge       the    extent       to     which   the     sentencing      court    had    the

authority       to    impose      the    underlying        probationary     judgments       by

means of an appeal taken from the revocation of his probation.

      According to N.C. Gen. Stat. § 7A-271(e):

            The    superior    court    has    exclusive
            jurisdiction over all hearings held pursuant
            to [N.C. Gen. Stat. §] 15A-1345(e) where the
            district court had accepted a defendant’s
            plea of guilty or no contest to a felony
            under the provisions of [N.C. Gen. Stat. §]
                                          -9-
           7A-272(c), except that the district court
           shall   have   jurisdiction to hear  these
           matters with the consent of the State and
           the defendant.

As a result of the fact that N.C. Gen. Stat. § 15A-1345(e)

governs    the     conduct        of     proceedings      convened     to    address

allegations      that    a   convicted      criminal      defendant’s       probation

should be revoked and the fact that N.C. Gen. Stat. § 7A-272(c)

allows pleas of guilty or no contest to Class H and Class I

felonies   to    be     entered    and    addressed      in   the   District   Court

Division    of     the       General      Court     of    Justice      in     certain

circumstances, the obvious effect of N.C. Gen. Stat. § 7A-271(e)

is to give the Superior Court Division of the General Court of

Justice    exclusive         jurisdiction         over    probation     revocation

hearings arising from cases in which the District Court accepted

a defendant’s plea of guilty or no contest pursuant to N.C. Gen.

Stat. § 7A-272(c).

    N.C. Gen. Stat. § 7A-272(c) provides that:

           With the consent of the presiding district
           court   judge,    the  prosecutor,   and the
           defendant,     the    district    court  has
           jurisdiction to accept a defendant’s plea of
           guilty or no contest to a Class H or I
           felony if:

           (1) The defendant is charged with a felony
           in an information filed pursuant to [N.C.
           Gen. Stat. §] 15A-644.1, the felony is
           pending in district court, and the defendant
           has not been indicted for the offense; or
                                   -10-
          (2) The defendant has been indicted for a
          criminal offense but the defendant’s case is
          transferred from superior court to district
          court pursuant to [N.C. Gen. Stat. §] 15A-
          1029.1.

Similarly,   N.C.   Gen.   Stat.   §   15A-644.1    provides     that   “[a]

defendant who pleads guilty or no contest in district court

pursuant to [N.C. Gen. Stat. §] 7A-272(c)(1) shall enter that

plea to an information complying with [N.C. Gen. Stat. §] 15A-

644(b),4 except it shall contain the name of the district court

in which it is filed.”      As a result, when read in conjunction

with N.C. Gen. Stat. § 15A-644.1, N.C. Gen. Stat. § 7A-272(c)

authorizes the acceptance of a plea of guilty or no contest to

the commission of a felony offense in the District Court in the

event that the defendant’s case is still pending in the District

Court and an information alleging the commission of the felony

offense is filed or the charges against the defendant have been

transferred from the Superior Court back to the District Court

pursuant to N.C. Gen. Stat. § 15A-1029.1.

    The   essential   argument     advanced   in   Defendant’s    brief   is

that compliance with N.C. Gen. Stat. § 7A-272(c) is a necessary

    4
      N.C.  Gen.   Stat.  §   15A-644(b)  provides   that  “[a]n
information must contain everything required of an indictment .
. . except that the accusation is that of the prosecutor and the
provisions of [N.C. Gen. Stat. § 15A-644](a)(5) do not apply,”
with the information being required to “contain or have attached
the waiver of indictment pursuant to [N.C. Gen. Stat. §] 15A-
642(c).”
                                          -11-
prerequisite        for    the      invocation     of     the    trial       court’s

jurisdiction to revoke a defendant’s probation pursuant to N.C.

Gen. Stat. § 271(e).             In other words, Defendant contends that

the Superior Court lacks jurisdiction to revoke a defendant’s

probation pursuant to N.C. Gen. Stat. § 7A-271(e) unless the

original probationary judgments were imposed in compliance with

the provisions of N.C. Gen. Stat. § 7A-272(c).                  Based    upon that

logic,    Defendant       further    contends     that    the   fact     that    the

felonies to which he pled no contest in Ashe County were charged

by warrants for arrest rather than by informations deprived the

Ashe     County     District      Court     of   the     authority      to    accept

Defendant’s no contest pleas and, by extension, deprived the

trial court of jurisdiction to revoke his probation in the Ashe

County cases.

       Although Defendant asserts that the argument that he has

advanced on appeal constitutes a challenge to the trial court’s

jurisdiction to revoke his probation and activate his suspended

sentences in the Ashe County cases rather than to the validity

of the underlying probationary judgments, we do not find this

logic persuasive.         Reduced to its essence, Defendant’s argument

rests    on   the   assertion       that   the   District    Court      lacked   the

jurisdiction to impose the original probationary judgments in

the Ashe County cases given the absence of valid informations
                                              -12-
charging Defendant with the offenses to which he pled no contest

from       the   file   in   the    Ashe      County      cases.     In    other   words,

Defendant’s argument inherently rests upon a challenge to the

District         Court’s      jurisdiction           to     impose        the   original

probationary judgment, which is exactly the type of argument

that Pennell precludes us from considering in connection with an

appeal from an order revoking a convicted criminal defendant’s

probation and activating his suspended sentence.                           As a result,

given that we lack the authority to entertain the only challenge

that Defendant has advanced in opposition to the trial court’s

probation revocation orders, we have no choice except to affirm

the revocation of Defendant’s probation and the activation of

his suspended sentences.5

                                    III. Conclusion

       Thus, for the reasons set forth above, we conclude that

Defendant’s        challenge       to   the    trial      court’s   judgments      is   not

properly before this Court.                    As a result, the trial court’s

judgments should, and hereby do, remain undisturbed.6



       5
      Consistently with the Supreme Court’s holding in Pennell,
our decision in this case should not be understood as
prejudicing Defendant’s right to seek relief from the sentences
imposed in the Ashe County cases through the use of other
procedural mechanisms such as the filing of a motion for
appropriate relief or a petition for the issuance of a writ of
habeas corpus. Pennell, __ N.C. at __, __ S.E.2d at __.
                              -13-
    AFFIRMED.

    Judges ROBERT N. HUNTER, JR., and DAVIS concur.

    Report per Rule 30(e).




    6
      In light of our decision that we lack the authority to
entertain Defendant’s challenge to the revocation of his
probation and the activation of his suspended sentences in the
Ashe County cases, we need not decide the remaining motions that
are currently pending in this case and deny them on mootness
grounds.
