              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-1065-2

                                Filed: 20 February 2018

Surry County, Nos. 12 CRS 1110–11

STATE OF NORTH CAROLINA

             v.

WALTER COLUMBUS SIMMONS


      On certiorari review of judgment entered 16 May 2016 by Judge A. Moses

Massey in Surry County Superior Court. Originally heard in the Court of Appeals 5

April 2017. By opinion issued 15 August 2017, a unanimous panel of this Court

vacated in part the judgment of the trial court and remanded with instructions to

enter a modified judgment. By order dated 11 December 2017, the Supreme Court of

North Carolina remanded the case to the Court of Appeals for reconsideration in light

of its decision in State v. Brice, ___ N.C. ___, 806 S.E.2d 32 (2017), rev’g ___ N.C. App.

___, 786 S.E.2d 812 (2016).


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Creecy
      C. Johnson, for the State.

      The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-
      appellant.


      ELMORE, Judge.


      On 16 May 2016, Walter Columbus Simmons (defendant) pled guilty to

aggravated felony death by vehicle (AFDV) and felony hit and run (FHR). The
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                                   Opinion of the Court



judgment, however, inaccurately reflected that defendant pled guilty to felony serious

injury by vehicle instead of FHR. Defendant later petitioned this Court to issue a

writ of certiorari to review issues pertaining to his guilty plea. See State v. Simmons,

No. 16-1065, slip op. at 3 (N.C. App. Aug. 15, 2017) (unpublished). We deemed

meritorious only one of those issues, a jurisdictional challenge to the sufficiency of

the AFDV indictment, and the State conceded that indictment was fatally defective

under the authority of this Court’s decision in State v. Brice, ___ N.C. App. ___, 786

S.E.2d 812 (2016), rev’d, ___ N.C. ___, 806 S.E.2d 32 (2017).        Id. slip op. at 4.

Accordingly, we allowed in part defendant’s petition for the limited purpose of

reviewing that sole issue and addressing the clerical error regarding the offenses to

which defendant pled guilty. Id. slip op. at 4–5.

      In Brice, this Court held that the State’s failure to comply with N.C. Gen. Stat.

§ 15A-928’s special-pleading requirement—that is, when a prior conviction or

convictions constitute an element of a greater offense, that prior conviction or those

convictions must be listed on a special indictment or information, or in a separate

count—constituted a fatal jurisdictional defect. ___ N.C. App. at ___, 786 S.E.2d at

815 (citing State v. Williams, 153 N.C. App. 192, 568 S.E.2d 890 (2002), disc. rev.

improvidently allowed, 357 N.C. 45, 577 S.E.2d 618 (2003), and overruled by Brice,

___ N.C. at ___ n.4, 806 S.E.2d at 40 n.4).         The Brice panel thus vacated the

defendant’s habitual misdemeanor larceny conviction and remanded for entry of a



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                                   Opinion of the Court



judgment and resentencing on the lesser offense of misdemeanor larceny. Id. Here,

the State similarly violated N.C. Gen. Stat. § 15A-928 by including a prior conviction

of driving while impaired, an element of AFDV, on defendant’s AFDV indictment.

Simmons, slip op. at 4. Accordingly, under Brice, we vacated defendant’s AFDV

conviction and remanded for entry of a judgment and resentencing on the lesser

offense of felony death by vehicle (FDV). Id. slip op. at 4. We also instructed the trial

court on remand to correct a clerical error in its judgment. Id. slip op. at 5 (“Although

the plea arrangement and plea hearing transcript reflect that defendant pled guilty

to FHR, see N.C. Gen. Stat. § 20-166(a) (2015), the judgment reflects that he pled

guilty to felony serious injury by vehicle, see N.C. Gen. Stat. § 20-141.4(a3) (2015).”).

      On 28 August 2017, the State filed a petition for a writ of supersedeas and a

motion for a temporary stay with the Supreme Court of North Carolina. On 15

September 2017, the State filed a petition for discretionary review. On 28 September

2017, defendant filed a response to the State’s petition for discretionary review and a

conditional request for discretionary review of an additional issue. On 7 December

2017, our Supreme Court dissolved the temporary stay, denied the State’s petition

for a writ of supersedeas, denied defendant’s conditional petition for discretionary

review, and allowed the State’s petition for discretionary review for the limited

purpose of remanding the case to this Court for reconsideration of our decision in




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                                   Opinion of the Court



Simmons in light of its decision in State v. Brice, ___ N.C. ___, 806 S.E.2d 32 (2017),

rev’g ___ N.C. App. ___, 786 S.E.2d 812 (2016).

      On remand, after reviewing Brice, we conclude that defendant’s alleged AFDV

indictment error under N.C. Gen. Stat. § 15A-928 no longer implicates jurisdiction

and, therefore, defendant has waived his right to appellate review of this issue by

failing to object below. Accordingly, we modify our prior decision in Simmons and

sustain the trial court’s judgment and sentence with respect to the AFDV conviction.

We remand for the limited purpose of instructing the trial court to correct the clerical

error in its judgment by reflecting that defendant pled guilty to FHR.

                                      I. Analysis

      In Brice, this Court held that the State’s failure to comply with N.C. Gen. Stat.

§ 15A-928’s special-pleading requirement constituted a fatal jurisdictional defect. ___

N.C. App. at ___, 786 S.E.2d at 815 (citation omitted).         We thus vacated the

defendant’s conviction for habitual misdemeanor larceny and remanded for entry of

a judgment and sentence on misdemeanor larceny. Id.

      On discretionary review, by written opinion filed 3 November 2017, our

Supreme Court held that the State’s failure to comply with N.C. Gen. Stat. § 15A-

928’s special-pleading requirement did not implicate the trial court’s jurisdiction.

Brice, ___ N.C. at ___, 806 S.E.2d at 38. Thus, as the defendant failed to object below

to the State’s N.C. Gen. Stat. § 15A-928 noncompliance, she was not entitled to raise



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                                   Opinion of the Court



that non-jurisdictional issue for the first time on appeal. Id. at ___, 806 S.E.2d at 39–

40. Accordingly, our Supreme Court reversed our decision in Brice, deemed the

defendant’s N.C. Gen. Stat. § 15A-928 issue waived, and remanded with instructions

to reinstate the trial court’s prior judgment. Id.

      In reconsideration of our decision, we are bound by our Supreme Court’s

holdings in Brice. As the preservation issue in this case is indistinguishable from

Brice, we hold that because defendant failed to object below to the State’s

noncompliance with N.C. Gen. Stat. § 15A-928’s special-pleading requirement, he “is

not entitled to seek relief based upon that indictment-related deficiency for the first

time on appeal.” Id. at ___, 806 S.E.2d at 40 (footnote omitted). Accordingly, under

Brice, we deem this issue unpreserved for appellate review and thus hold the trial

court’s prior judgment should be reinstated. We remand this case for the limited

purpose of instructing the trial court to correct the clerical error in its judgment to

reflect accurately that defendant pled guilty to FHR.

                                    II. Conclusion

      After reconsideration of our prior decision in light of Brice, we conclude that

defendant’s failure to object below to the State’s noncompliance with N.C. Gen. Stat.

§ 15A-928 waived his right to appellate review of this issue. Therefore, we hold that

the trial court’s prior judgment be reinstated. We remand for the limited purpose of




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                                  Opinion of the Court



instructing the trial court to correct the clerical error in its judgment by accurately

reflecting that defendant pled guilty to FHR.

      REMANDED FOR CORRECTION OF CLERICAL ERROR.

      Judges INMAN and BERGER concur.




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