       An unpublished opinion of the North Carolina Court of Appeals does not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



AN UNPUBLISHED OPINION OF THE NORTH CAROLINA COURT OF APPEALS
DOES NOT CONSTITUTE CONTROLLING LEGAL AUTHORITY. CITATION IS
D ISFAVORED, BUT M AY BE PERMITTED IN A CCO RDANCE WITH TH E
PROVISIONS OF RULE 30(E)(3) OF THE NORTH CAROLINA RULES OF APPELLATE
P      R       O       C        E      D      U      R       E      .




             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA14-638

                               Filed: 5 May 2015

Onslow County, Nos. 09 CRS 054843-44

STATE OF NORTH CAROLINA

             v.

JARRELL DAMONT WILSON


      Appeal by defendant by writ of certiorari from order entered 31 December 2012

by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of

Appeals 18 November 2014.


      Attorney General Roy Cooper, by Assistant Attorney General Kimberly N.
      Callahan, for the State.

      Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Anne
      M. Gomez, for defendant-appellant.
                                  STATE V. WILSON

                                  Opinion of the Court



      CALABRIA, Judge.


      Jarrell Damont Wilson (“defendant”) appeals by writ of certiorari from an order

denying his motion for appropriate relief contending his convictions must be vacated.

We affirm the court’s order. However, we remand for resentencing, since judgment

must be arrested on one of the counts of first degree felony murder pursuant to the

merger doctrine.

                                   I. Background

      This is defendant’s second appeal. Defendant’s first appeal may be found at

State v. Wilson, 217 N.C. App. 401, 720 S.E.2d 29 (2011) (unpublished). The facts of

defendant’s underlying offenses are as follows:

             On 17 July 2009, Wilson shot and killed Gabriel Ape and
             Christopher Watts. Prior to the shooting, Wilson had
             received threats from Watts and Ape. Further, Ape had
             demanded $60 from Wilson because Wilson broke Ape’s
             friend’s telephone. On the evening of the shooting, Watts
             and Ape approached Wilson in the parking lot outside a
             club while Wilson was in his car, banged loudly on the car
             window, and demanded $60 from Wilson. Ape then
             punched Wilson through an open window. Wilson drove
             away from Ape and Watts, but then stopped the car and
             exited with a gun. As the three met near Wilson’s car, a
             friend of Wilson’s attempted to intercede and give Ape the
             money he demanded. Ape refused the money and he and
             Watts rushed at Wilson; Wilson testified that Ape was
             wearing a set of brass knuckles. As Ape and Watts
             approached Wilson, Wilson fired his weapon once at each
             man. Watts and Ape died as a result of gunshot wounds
             inflicted by Wilson.

             The jury found Wilson guilty of two counts of first-degree

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                                  STATE V. WILSON

                                  Opinion of the Court



             murder and two counts of second-degree murder. The trial
             court imposed two concurrent sentences of life
             imprisonment without parole for the first-degree murder
             convictions and arrested judgment on the second-degree
             murder convictions.

Wilson, 217 N.C. App. 401, 720 S.E.2d 29.

      On 7 December 2012, defendant filed a pro se motion for appropriate relief

(“MAR”), arguing that his second degree murder offenses were invalid as a matter of

law because no indictments were ever issued for those offenses. Defendant also

argued that his first degree murder offenses were also invalid because the trial court

lacked jurisdiction in the absence of the indictments for the underlying felonies of

second degree murder. Defendant further argued that both his trial and appellate

counsel provided ineffective assistance. On 31 December 2012, the trial court entered

an order denying defendant’s MAR.

      On 27 December 2013, defendant filed a petition for writ of certiorari with this

Court, requesting review of the trial court’s denial of his MAR. On 14 January 2014,

this Court allowed Wilson’s petition for certiorari, stating that “review shall be

limited to the issue of whether the evidence at trial supported the trial court’s entry

of judgment on two counts of first-degree felony murder.”

                             II. State’s Motion to Strike

         As an initial matter, the State has filed a motion to strike the first argument

of defendant’s brief. Defendant argued that he must be granted a new trial because



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                                  STATE V. WILSON

                                  Opinion of the Court



the trial court violated his constitutional right to a unanimous jury verdict by

accepting the jury’s verdicts for both second degree and first degree murder for each

homicide charge. Although defendant claims that he may make this argument “at

any time,” defendant fails to recognize that the scope of his appeal is limited to this

Court’s order allowing his writ of certiorari. This Court allowed certiorari to review

“whether the evidence at trial supported the trial court’s entry of judgment on two

counts of first-degree felony murder[,]” not to determine the validity of any

constitutional claims. This Court is without jurisdiction to review defendant’s first

argument.    Therefore, we grant the State’s motion to strike defendant’s first

argument.

                           III. Felony Murder and Merger

      Defendant alternately argues that the trial court’s judgment must be arrested

on one of his two counts of first degree felony murder pursuant to the felony murder

merger rule. We agree.

      “Whether to arrest judgment is a question of law, and questions of law are

reviewed de novo on appeal.” State v. Curry, 203 N.C. App. 375, 378, 692 S.E.2d 129,

134 (2010) (citation omitted). Pursuant to N.C. Gen. Stat. § 14-17(a) (2013), a murder

“committed in the perpetration or attempted perpetration of any . . . other felony

committed or attempted with the use of a deadly weapon shall be deemed to be

murder in the first degree[.]” “When a defendant is convicted of felony murder only,



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                                  STATE V. WILSON

                                  Opinion of the Court



the underlying felony constitutes an element of first-degree murder and merges into

the murder conviction.” State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770

(2002). Consequently, if a defendant is convicted of first degree felony murder and

the underlying felony, the defendant cannot be sentenced separately for the

underlying felony. Id. See also State v. Weeks, 322 N.C. 152, 176, 367 S.E.2d 895,

909 (1988) (“[W]hen the sole basis of a defendant’s conviction of first degree murder

is pursuant to the felony murder rule, no additional sentence may be imposed for the

underlying felony as a separate independent offense, since the underlying felony

merges with the conviction of first degree murder.”).

      In Millsaps, the defendant shot and killed two people. The defendant was

subsequently found guilty of two counts of first degree murder pursuant to

premeditation and deliberation as well as two counts of first degree murder pursuant

to the felony murder rule, with the murder of the other victim serving as the

underlying felony for each offense. 356 N.C. at 557, 572 S.E2d at 769. On appeal,

the defendant argued that his first degree murder convictions were validly based only

on felony murder, and therefore he was entitled to a new sentencing hearing at which

only one murder conviction would be submitted. Id. at 568, 572 S.E.2d at 775. The

Supreme Court of North Carolina vacated the defendant’s first degree murder

convictions based upon premeditation and deliberation. Id. at 570, 572 S.E.2d at 777.

However, the Court, applying the merger doctrine, held that the felony murder



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                                  STATE V. WILSON

                                  Opinion of the Court



conviction for the death of one victim merged into the felony murder conviction for

the other victim: “for sentencing purposes the felony murder conviction for the death

of Lenna Lewis . . . merges into defendant's felony murder conviction for the death of

Rhoda Rousseau . . . ; judgment for the felony murder conviction in case number

00CRS334 is arrested[.]” Id.

      In the instant case, defendant was convicted of first degree murder of Gabriel

Ape pursuant to the felony murder rule. The underlying felony was the second degree

murder of Christopher Watts. Defendant was also convicted of first degree felony

murder of Christopher Watts, with the second degree murder of Gabriel Ape as the

underlying felony. Pursuant to the felony murder merger rule in Millsaps, the

murder conviction resulting in the death of Watts merged into the felony murder

conviction for the death of Ape. For sentencing purposes, since the murder conviction

for the death of Watts merges into the felony murder conviction for the death of Ape,

judgment on one count of first degree felony murder must be arrested.

      The State concedes that it is unable to distinguish the facts of the instant case

from the facts in Millsaps and Weeks. The first degree felony murder convictions

should remain undisturbed; however, for sentencing purposes, judgment in case

number 09CRS054844 is arrested. Therefore, we affirm the trial court’s denial of

defendant’s motion for appropriate relief, and we remand for resentencing.

      AFFIRMED; REMANDED FOR RESENTENCING.



                                               6
                         STATE V. WILSON

                         Opinion of the Court



Judges STROUD and McCULLOUGH concur.

Report per Rule 30(e).




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