An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-729
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 February 2014


STATE OF NORTH CAROLINA

      v.                                       Lincoln County
                                               No. 10 CRS 53179, 3784
WILLIAM LEE HALL



      Appeal by defendant from judgment entered 6 February 2012

by   Judge   James     W.    Morgan   in    Lincoln   County    Superior    Court.

Heard in the Court of Appeals 20 November 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Christine A. Goebel, for the State.

      Mary March Exum for defendant.


      HUNTER, Robert C., Judge.


      Defendant appeals the judgment sentencing him to 101 months

to 131 months imprisonment after he was convicted of felony

larceny (10 CRS 53179) and attaining the status of habitual

felon (10 CRS 3784).          On appeal, defendant argues that the trial

court lacked subject matter jurisdiction to accept his habitual

felon   guilty    plea      because   the    habitual   felon    indictment     was

returned      before        the   substantive      offenses      had    occurred.
                                     -2-
Furthermore, defendant contends that the trial court erred by

denying his motion to continue because he was unaware the case

was being called for trial, was unprepared, and was in shock and

taking medication for his mental state.             After careful review,

based on this Court’s holding in State v. Ross, __ N.C. App. __,

727 S.E.2d 370 (2012), disc. review denied, 366 N.C. 570, 738

S.E.2d 369 (2013), we vacate defendant’s habitual felon guilty

plea and remand for resentencing on defendant’s conviction for

felony   larceny    within    the        appropriate   sentencing      range.

However, we hold that the trial court did not err by denying

defendant’s motion to continue.

                                  Background

    Defendant was indicted 7 September 2010 for attaining the

status   of   habitual   felon,    and    the   habitual   felon   indictment

charged that defendant “did commit the felonies of [b]reaking or

[e]ntering and [l]arceny . . . while being an habitual felon.”

The date of the offense for defendant’s habitual felon charge

listed on the indictment was 15 November 2009.                 On 14 March

2011, the grand jury returned a bill of indictment alleging

that, on 24 September 2010, defendant committed second degree

burglary and felony larceny, the underlying substantive offenses

for defendant’s habitual felon indictment.
                                 -3-
    On 14 November 2011, defendant was tried by a jury on the

charges of second degree burglary and felony larceny.         The jury

found defendant not guilty of second degree burglary and guilty

of felony larceny on 15 November 2011.         That same day, defendant

pled guilty to attaining habitual felon status.         Although felony

larceny pursuant to N.C. Gen. Stat. § 14-72(b)(2) is a Class H

felony, defendant’s sentence was enhanced based on his habitual

felon status, and he was sentenced for a Class C felony.          After

determining that defendant had 16 prior record points, the trial

court   sentenced   defendant   within   the    presumptive   range   of

sentences to a minimum term of 101 months to a maximum term of

131 months imprisonment, with 22 days of credit given for the

time defendant spent in confinement.      On the judgment sheet, the

dates of offense listed for defendant’s convictions for felony

larceny and being an habitual felon are 24 September 2010 and 15

November 2009, respectively.     On 6 February 2012, the judgment

was amended.    The only changes made were that defendant was

given credit for 105 days spent in confinement, and the offense

date for being an habitual felon was changed to 24 September

2010.

    On 2 August 2012, this Court granted defendant’s petition

for writ of certiorari to review the judgment.
                                    -4-
                                 Arguments

    Defendant first argues that the trial court lacked subject

matter jurisdiction to accept his guilty plea because he was

indicted as an habitual felon before the underlying substantive

crimes    had   occurred   and   prior    to   being   indicted   for   those

crimes.    We agree.

    The issue of subject matter jurisdiction may be raised at

any time and may be raised for the first time on appeal.                In re

T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006).             “When an

indictment is fatally defective, the trial court acquires no

subject matter jurisdiction, and if it assumes jurisdiction a

trial and conviction are a nullity.”            State v. Frink, 177 N.C.

App. 144, 146, 627 S.E.2d 472, 473 (2006) (internal quotation

marks omitted).        “On appeal, we review the sufficiency of an

indictment de novo.”       State v. McKoy, 196 N.C. App. 650, 652,

675 S.E.2d 406, 409 (citation omitted), appeal dismissed and

disc. review denied, 363 N.C. 586, 683 S.E.2d 215 (2009).

    With regard to the status of being an habitual felon, this

Court has noted that:

            The Habitual Felons Act, N.C.G.S. §§ 14-7.1
            to -7.6 (2001), allows for the indictment of
            a defendant as a[n] habitual felon if he has
            been convicted of or pled guilty to three
            felony offenses.     The effect of such a
            proceeding is to enhance the punishment of
                                             -5-
              those found guilty of crime who are also
              shown to have been convicted of other crimes
              in the past.        The Habitual Felons Act
              requires   two   separate  indictments,  the
              substantive    felony  indictment   and  the
              habitual felon indictment, but does not
              state the order in which they must be
              issued.

State v. Blakney, 156 N.C. App. 671, 674, 577 S.E.2d 387, 390

(2003) (internal citations and quotation marks omitted).

       Initially, we note that “the issuance of a habitual felon

indictment prior to the substantive felony indictment does not

by itself void the habitual felon indictment where the notice

and procedural requirements of the Habitual Felons Act have been

complied with.”        Id. at 675, 577 S.E.2d at 390.                   However, in the

present     case,     not   only     was    defendant     indicted       for   being    an

habitual      felon    prior    to    being        indicted    for     the   substantive

felonies of felony larceny and second degree burglary, but he

was    also    indicted      for     being    an     habitual     felon      before    the

substantive offenses had occurred.                    Defendant was indicted for

attaining habitual felon status on 7 September 2010.                            However,

he    not   was   indicted      for    second       degree     burglary      and   felony

larceny       until   14    March      2011,       but,   more        importantly,     the

substantive       felonies     did    not    occur     until     24    September     2010,

several       weeks   after    the     habitual        felon     status      indictment.

Accordingly, given the fact that defendant was indicted as being
                                         -6-
an habitual felon before the substantive felonies occurred, we

find this Court’s decision in Ross controlling.

       In Ross, the defendant was indicted as an habitual felon on

22    September      2008;    a    superseding      habitual   felon    indictment

correcting a file number error was returned 11 May 2009.                      Id. at

__, 727 S.E.2d at 372.             However, the defendant was not indicted

for the substantive felonies until 20 July 2009.                        Id.     This

Court noted that, “[m]ore importantly,” the substantive felonies

did not occur until 17 and 18 June 2009, approximately nine

months after the initial habitual felon indictment and one month

after the superseding indictment.              Id. at __, 727 S.E.2d at 374.

Relying on State v. Flint, 199 N.C. App. 709, 682 S.E.2d 443

(2009), this Court found that “there was no pending prosecution

for   the    [substantive         felonies]    to   which   the   habitual     felon

proceeding could attach as an ancillary proceeding because the

crimes had not yet happened.”                 Ross, __ N.C. App. at __, 727

S.E.2d at 374 (internal quotation marks omitted).                        Therefore,

“the trial court lacked jurisdiction over the habitual felon

charge and erred by accepting [the] [d]efendant’s habitual felon

guilty      plea.”      Id.         Accordingly,      the   Court   vacated      the

defendant’s habitual felon guilty plea and remanded to the trial

court for resentencing on the substantive felonies.                    Id.
                                          -7-
      Here, as in Ross, given that the crimes of second degree

burglary    and    felony    larceny       had       not   occurred         at   the    time

defendant was indicted for being an habitual felon, there was

“no     pending    prosecution . . .           to    which     the     habitual         felon

proceeding      could     attach    as    an     ancillary       proceeding[,]”           id.

Therefore, the trial court lacked jurisdiction over defendant’s

habitual felon charge and erred by accepting defendant’s guilty

plea.     Accordingly, we vacate defendant’s habitual felon guilty

plea and remand for resentencing on defendant’s conviction for

felony larceny within appropriate sentencing guidelines.

      We note that the trial court amended its judgment on 6

February    2012    by    changing       the    offense        date    of    defendant’s

habitual    felon    charge    to    24    September           2010,    the      same    day

defendant committed the offenses of felony larceny and second

degree burglary.          However, that amendment to the judgment does

not cure the trial court’s lack of subject matter jurisdiction

when it accepted defendant’s guilty plea.                       In other words, the

indictment gives the trial court jurisdiction, not the judgment.

See Frink, 177 N.C. App. at 146, 627 S.E.2d at 473.                                Because

defendant’s habitual felon indictment was defective, pursuant to

Ross,     the     trial    court     never          acquired     jurisdiction            over

defendant’s habitual felon charge, and the judgment and amended
                                            -8-
judgment were “nullit[ies][,]” Frink, 177 N.C. App. at 146, 627

S.E.2d at 473.

       In   its   brief,      the    State    encourages      this    Court     to   “not

follow”     Ross       because       it     “was    decided        incorrectly”       and

“conflict[s]” with earlier rulings by this Court.                           However, we

find no inconsistency between the holdings of Ross and those

cases cited by the State, including Blakney, State v. McGee, 175

N.C. App. 586, 623 S.E.2d 782 (2006), and State v. Patton, 342

N.C. 633, 466 S.E.2d 708 (1996).                  In Blakney, McGee, and Patton,

the    defendants      were    not    indicted      for    being     habitual     felons

before the substantive offenses had occurred; in Ross, however,

that was the issue before this Court.                      Moreover, even assuming

arguendo that the State is correct, we are bound by Ross until

that precedent is overturned by our Supreme Court.                           See In re

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.”).

       Next,    defendant      argues     that     the    trial    court    abused    its

discretion in denying his motion to continue.                     We disagree.
                                          -9-
      “Ordinarily,     a   motion      to    continue      is    addressed   to    the

discretion of the trial court, and absent a gross abuse of that

discretion, the trial court’s ruling is not subject to review.”

State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001),

cert. denied, 535 U.S. 934, 152 L. Ed. 2d 221 (2002). “When a

motion   to   continue     raises     a     constitutional       issue,   the   trial

court’s ruling is fully reviewable upon appeal.”                    Id.

      At defendant’s trial, his counsel made a motion to continue

on several grounds.        Specifically, defense counsel claimed that

defendant was having some “emotional difficulties” because he

was   taking    medications          that       affected     his    mental      state.

Furthermore,    defense       counsel       alleged    that      defendant   was    in

“shock” that he was going to be tried for second degree burglary

and felony larceny at the same time.                  Finally, defense counsel

initially seemed to indicate that he was also not ready for

trial.   However, he later admitted to being prepared for trial

upon questioning by the trial court.

      Here,    the   trial     judge        specifically        questioned   defense

counsel regarding his trial preparation.                   By his own admission,

defense counsel stated that he was “prepared” for trial and that

the   State   had    warned    him    that      a   “possibility”     existed      that

defendant’s trial would begin that day.                    Therefore, defendant’s
                                         -10-
claim that he was denied his Sixth Amendment right to effective

counsel because his attorney did not have time to prepare for

trial is without merit.

      Furthermore, while defendant did allege that he was taking

Lexapro      for    his    mental   state,      he    claimed    that       the   other

medications were for his “sinus problems” and “bad headaches.”

In   addition,      defendant’s     “shock”     was    based    on    his    confusion

regarding the order in which the charges were to be tried, not

necessarily that his trial was beginning that day.                         Accordingly,

in   light     of    these    circumstances,         defendant       has    failed   to

establish that the trial court abused its discretion in denying

the motion to continue.

                                    Conclusion

      Based    on    the     foregoing    reasons,      we     vacate      defendant’s

habitual felon guilty plea and remand for resentencing on his

conviction of felony larceny.              However, we find no error with

regards to the trial court’s denial of his motion to continue.



      VACATED IN PART AND REMANDED FOR RESENTENCING; NO ERROR IN
      PART.

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

      Report per Rule 30(e).
