               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 221PA17

                                Filed 17 August 2018

STATE OF NORTH CAROLINA

              v.
WILLIE JAMES LANGLEY



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 166 (2017), finding no error in

part and vacating in part judgments entered on 28 January 2015 by Judge W. Russell

Duke, Jr., in Superior Court, Pitt County, and remanding for resentencing. Heard in

the Supreme Court on 16 April 2018.


      Joshua H. Stein, Attorney General, by Kimberly N. Callahan, Assistant
      Attorney General, for the State-appellant.

      John Keating Wiles for defendant-appellee.


      ERVIN, Justice.

      The issue before us in this case is whether an habitual felon indictment

returned against defendant was fatally defective. After carefully considering the

record in light of the applicable law, we hold that the habitual felon indictment at

issue in this case was not fatally defective. For that reason, we reverse the Court of

Appeals’ decision to the contrary and remand this case to the Court of Appeals for

consideration of defendant’s remaining challenge to the trial court’s judgments.
                                   STATE V. LANGLEY

                                   Opinion of the Court



      At approximately 10:30 p.m. on 24 September 2014, Jesse Atkinson, Jr., drove

his father, Jesse Atkinson, Sr., and a friend named Kion in Kion’s Honda Civic to

Vance Street in Greenville for the purpose of buying marijuana. Upon reaching

Vance Street, Mr. Atkinson, Jr., pulled up against the curb, at which point Kion

exited the car, leaving Mr. Atkinson, Jr., in the front seat and Mr. Atkinson, Sr., in

the back seat. After sitting in the car for about five to ten minutes, Mr. Atkinson, Jr.,

and Mr. Atkinson, Sr., observed a dark blue Nissan Sentra drive past the Honda, stop

at a nearby corner, make a U-turn, and pull up beside the Honda facing in the

opposite direction. Davron Lovick drove the dark blue Nissan Sentra, with defendant

Willie James Langley occupying the front passenger seat.

      As the Nissan Sentra neared the Honda, defendant jumped across Mr. Lovick

and started shooting at Mr. Atkinson, Jr., and Mr. Atkinson, Sr., with either an AK47

or SKS rifle. After the shooting began, Mr. Atkinson, Jr., drove away while the

Nissan continued to chase the Honda and defendant continued to fire at the fleeing

vehicle. Defendant fired at least eight shots at the Honda, with Mr. Atkinson, Sr.,

sustaining gunshot wounds to his right calf and left thigh.

      On 29 September 2014, the Pitt County grand jury returned bills of indictment

charging defendant with assaulting Mr. Atkinson, Jr., with a deadly weapon with the

intent to kill; assaulting Mr. Atkinson, Sr., with a deadly weapon with the intent to

kill inflicting serious injury; two counts of attempted first-degree murder; possession

of a firearm by a felon; discharging a weapon into an occupied vehicle; and having


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                                   Opinion of the Court



attained habitual felon status. The indictment charging that defendant had attained

habitual felon status alleged, in pertinent part, that

             on or about the date of offense shown and in the County
             named above the defendant named is an habitual felon in
             that on or about September 11, 2006, the defendant did
             commit the felony of Felony Larceny, in violation of North
             Carolina General Statute 14-72(a), and that on or about
             February 15, 2007, the defendant was convicted of the
             felony of Felony Larceny in the Superior Court of Pitt
             County, North Carolina; and that on or about October 08,
             2009, the defendant did commit the felony of Robbery with
             a Dangerous Weapon, in violation of North Carolina
             General Statute 14-87, and that on or about September 21,
             2010, the defendant was convicted of the felony of Common
             Law Robbery in the Superior Court of Pitt County, North
             Carolina; and that on or about August 24, 2011, the
             defendant did commit the felony of Robbery with a
             Dangerous Weapon, in violation of North Carolina General
             Statute 14-87.1, and that on or about May 5, 2014, the
             defendant was convicted of the felony of Common Law
             Robbery in the Superior Court of Pitt County, North
             Carolina, against the form of the statute . . . and against
             the peace and dignity of the State.

The charges against defendant came on for trial before the trial court and a jury at

the 26 January 2015 criminal session of the Superior Court, Pitt County. On 28

January 2015, the jury returned verdicts finding defendant guilty as charged. Based

upon the jury’s verdicts, the trial court consolidated defendant’s convictions for two

counts of attempted first-degree murder, assault with a deadly weapon with the

intent to kill, and assault with a deadly weapon with the intent to kill inflicting

serious injury for judgment and sentenced defendant to a term of 238 to 298 months

imprisonment; sentenced defendant to a consecutive term of 110 to 144 months


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                                     Opinion of the Court



imprisonment based upon his conviction for possession of a firearm by a felon; and

sentenced defendant to a consecutive term of 110 to 144 months imprisonment based

upon his conviction for discharging a weapon into an occupied vehicle. Defendant

noted an appeal to the Court of Appeals from the trial court’s judgments.

       In seeking relief from the trial court’s judgments before the Court of Appeals,

defendant argued, among other things,1 that the habitual felon indictment that had

been returned against him was facially defective. According to defendant, “with

respect to the second and third previous felony convictions alleged in the habitual

felon indictment returned against [defendant], the previous offenses that he allegedly

committed differed from the offenses of conviction.” In defendant’s view, the fact that

the offense that defendant allegedly committed differed from the offense that

defendant was allegedly convicted of having committed demonstrated that the

habitual felon indictment failed to comply with the pleading requirements set out in

N.C.G.S. 14-7.3 as construed in State v. Cheek, 339 N.C. 725, 729-30, 453 S.E.2d 862,

865 (1995). The State, on the other hand, argued that the habitual felon indictment

returned against defendant did, in fact, comply with the requirements set out in




       1 In addition to the issue discussed in the text of this opinion, defendant contended
that the trial court had erred by denying his motion for a mistrial and instructing the jury in
such a manner as to constructively amend the habitual felon indictment. The Court of
Appeals held that the trial court had not abused its discretion in denying defendant’s mistrial
motion and did not reach the issue of whether the trial court had constructively amended the
habitual felon indictment in its instructions to the jury.

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                                  Opinion of the Court



N.C.G.S. § 14-7.3 and sufficed to support the trial court’s decision to sentence

defendant as an habitual felon.

      In its opinion, the Court of Appeals “order[ed] that the judgment regarding the

habitual felon conviction be vacated and the case be remanded for resentencing on

the underlying felonies without the habitual felon enhancement” on the grounds that

“the trial court proceeded on a facially deficient habitual felon indictment.” State v.

Langley, ___ N.C. App. ___, ___, 803 S.E.2d 166, 167 (2017). In support of this

determination, the Court of Appeals explained that, “for a habitual felon indictment

to fully comport with statutory requirements there must be two dates listed for each

prior felony conviction put forth in the habitual felon indictment—both the date the

defendant committed the felony and the date the defendant was convicted of that

same felony in the habitual felon indictment.” Id. at ___, 803 S.E.2d at 171 (first

citing N.C.G.S. § 14-7.3; then citing Cheek, 339 N.C. at 729-30, 453 S.E.2d at 865).

More specifically, the Court of Appeals noted that, “[o]n its face, the indictment did

not provide the offense date for Conviction 2 or Conviction 3. Instead, for both of

these convictions, the indictment alleged offense dates for robberies with a dangerous

weapon, and then gave conviction dates for two counts of common law robbery.” Id.

at ___, 803 S.E.2d at 171. According to the Court of Appeals, “[i]t would be an

impermissible inference to read into the indictment that common law robbery took

place on 8 October 2009 or 24 August 2011 because that is not what the grand jury

found when it returned its bill of indictment.” Id. at ___, 803 S.E.2d at 167. This


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                                 Opinion of the Court



Court granted the State’s request for discretionary review of the Court of Appeals’

decision with respect to the validity of defendant’s habitual felon indictment on 1

November 2017.

      In seeking to persuade us to reverse the Court of Appeals’ decision, the State

argues that the Court of Appeals erroneously engrafted an additional requirement

onto the statutory provisions governing the contents of an habitual felon indictment

given that the applicable statutory language requires that the offense that the

defendant allegedly committed be identical to the offense that the defendant was

allegedly convicted of committing. The State contends that the insertion of this

requirement into N.C.G.S. § 14-7.3 conflicts with this Court’s consistent refusal to

“engraft additional unnecessary burdens upon the due administration of justice,”

quoting State v. Freeman, 314 N.C. 432, 436, 333 S.E.2d 743, 746 (1985). According

to the State, N.C.G.S. § 14-7.3 simply does not require that an habitual felon

indictment identify the nature of the prior offense aside from alleging that it was a

felony. In the State’s view, the habitual felon indictment returned against defendant

in this case adequately alleged that defendant had attained habitual felon status by

alleging that defendant had committed and had been convicted of three prior felony

offenses, specifying the date upon which each felony offense had been committed,

asserting that the offenses in question were committed against the State of North

Carolina, listing the date upon which each conviction occurred, and identifying the

court in which defendant was convicted on each occasion, with the name of the prior


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                                  STATE V. LANGLEY

                                   Opinion of the Court



felony being mere surplusage unnecessary to the existence of a facially valid

indictment.

      Defendant, on the other hand, asserts that the mere fact that an individual has

been convicted of three prior felony offenses does not suffice to establish that the

individual in question is an habitual felon given that the felonies necessary to

establish the existence of that status cannot overlap. For example, defendant notes

that the second felony must have been “committed after the conviction of or plea of

guilty to the first felony” and that the third felony must have been “committed after

the conviction of or plea of guilty to the second felony,” quoting N.C.G.S. § 14-7.1. In

light of that fact, a valid habitual felon indictment must allege “both the date the

defendant committed the felony and the date the defendant was convicted of that

same felony in the habitual felon indictment,” quoting Langley, ___ N.C. App. at ___,

803 S.E.2d at 171. In other words, in order for an habitual felon indictment to show

that the prior felony convictions upon which the State relies do not impermissibly

overlap, the dates upon which those felonies were committed and the dates upon

which defendant was convicted of committing those felonies must be set out in that

indictment. In defendant’s view, the habitual felon indictment returned against him

in this case is fatally defective because it did not provide conviction dates for the

second and third of the three felony offenses that defendant allegedly committed,

making it impossible to know whether defendant’s second and third common law

robbery convictions impermissibly overlapped given that the indictment did not


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                                    STATE V. LANGLEY

                                    Opinion of the Court



indicate when those two common law robbery offenses were committed, and because

the indictment did not provide offense dates for the second and third offenses for

which defendant was allegedly convicted, making it impossible to know whether

defendant’s second and third robbery with a dangerous weapon offenses did not

impermissibly overlap given that the indictment did not indicate when defendant was

convicted of committing those offenses.

      “A valid . . . indictment is an essential of jurisdiction.” State v. McBane, 276

N.C. 60, 65, 170 S.E.2d 913, 916 (1969) (quoting State v. Morgan, 226 N.C. 414, 415,

36 S.E.2d 166, 167 (1946)).      “The . . . indictment must charge all the essential

elements of the alleged criminal offense,” id. at 65, 170 S.E.2d at 916 (citing Morgan,

226 N.C. 414, 38 S.E.2d 166), “in a plain, intelligible, and explicit manner,” id. at 65,

170 S.E.2d at 916 (quoting N.C.G.S. § 15-153 (1969)).2 “The purpose of an indictment

‘is (1) to give the defendant notice of the charge against him to the end that he may

prepare his defense . . . [and] (2) to enable the court to know what judgment to

pronounce in case of conviction.’ ” State v. Russell, 282 N.C. 240, 243-44, 192 S.E.2d

294, 296 (1972) (quoting State v. Burton, 243 N.C. 277, 278, 90 S.E.2d 390, 391

(1955)). “[I]t is not the function of an indictment to bind the hands of the State with

technical rules of pleading; rather, its purposes are to identify clearly the crime being

charged. . . .” State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981). For




      2   The relevant statutory language has not changed since McBane was decided.

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                                   Opinion of the Court



that reason, indictment drafting is “no longer bound by the ‘ancient strict pleading

requirements of the common law.’ ” State v. Williams, 368 N.C. 620, 623, 781 S.E.2d

268, 271 (2016) (quoting Freeman, 314 N.C. at 436, 333 S.E.2d at 746).

      The content of a valid indictment alleging that a defendant has attained

habitual felon status is specified in N.C.G.S. 14-7.3, which provides that the

indictment “shall be separate from the indictment charging [that person] with the

principal felony” and “must set forth the date that the prior felony offenses were

committed, the name of the state or other sovereign against whom said felony offenses

were committed, the dates that pleas of guilty were entered to or convictions returned

in said felony offenses, and the identity of the court wherein said pleas or convictions

took place.” N.C.G.S. § 14-7.3 (2017). In view of the fact that the ultimate question

before us in this case is whether N.C.G.S. § 14-7.3 requires that an indictment

charging that the defendant has attained habitual felon status must allege that the

defendant committed the same felony offense for which he was ultimately convicted,

we are required to interpret the relevant statutory provision to see if it embodies a

requirement of the type for which defendant contends.

      “Legislative intent controls the meaning of a statute.” Midrex Techs., Inc. v.

N.C. Dep’t of Revenue, 369 N.C. 250, 258, 794 S.E.2d 785, 792 (2016) (quoting Brown

v. Flowe, 349 N.C. 520, 522, 507 S.E.2d 894, 895 (1998)). “The intent of the General

Assembly may be found first from the plain language of the statute, then from the

legislative history, ‘the spirit of the act and what the act seeks to accomplish.’ ” Id.


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                                   STATE V. LANGLEY

                                   Opinion of the Court



at 258, 794 S.E.2d at 792 (quoting Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d

513, 517 (2001)). “Where the language of a statute is clear and unambiguous, there

is no room for judicial construction and the courts must construe the statute using its

plain meaning.” State v. Hooper, 358 N.C. 122, 125, 591 S.E.2d 514, 516 (2004)

(quoting Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134,

136 (1990)). “[I]t is our duty to give effect to the words actually used in a statute and

not to delete words used or to insert words not used.” Lunsford v. Mills, 367 N.C.

618, 623, 766 S.E.2d 297, 301 (2014) (citations omitted).

      The language of the relevant statutory provision is clear, unambiguous, and

requires no construction. N.C.G.S. § 14-7.3 states that an habitual felon indictment

must set forth (1) “the date that prior felony offenses were committed,” (2) “the name

of the state or other sovereign against whom said felony offenses were committed,”

(3) “the dates that pleas of guilty were entered to or convictions returned in said

felony offenses,” and (4) “the identity of the court wherein said pleas or convictions

took place.” N.C.G.S. § 14-7.3; accord Cheek, 339 N.C. at 729-30, 453 S.E.2d at 865

(explaining that an “habitual felon indictment fully comports with the requirements

of N.C.G.S. § 14-7.3 by setting forth the three prior felony convictions relied on by the

State, the dates these offenses were committed, the name of the state against whom

they were committed, the dates defendant’s guilty pleas for these offenses were

entered, and the identity of the court wherein these convictions took place”). The

indictment at issue in this case alleged that the three prior felony offenses upon which


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                                  STATE V. LANGLEY

                                   Opinion of the Court



the State relied in attempting to establish that defendant had attained habitual felon

status were committed on 11 September 2006, 8 October 2009, and 24 August 2011;

that the offenses that led to defendant’s felony convictions were committed against

the State of North Carolina; that defendant was convicted of committing these

offenses, the identity of which was specified in the body of the habitual felon

indictment, on 15 February 2007, 21 September 2010, and 5 May 2014; and that each

of these convictions occurred in the Superior Court, Pitt County. As a result, the

habitual felon indictment returned against defendant in this case contains all of the

information required by N.C.G.S. § 14-7.3 and provides defendant with adequate

notice of the bases for the State’s contention that defendant had attained habitual

felon status.

      In addition, we note that the habitual felon indictment returned against

defendant in this case alleged that defendant had committed the offenses of robbery

with a dangerous weapon and had been convicted of the lesser included offenses of

common law robbery. “[I]t is well settled that an indictment for an offense includes

all the lesser degrees of the same crime,” State v. Baker, 369 N.C. 586, 595, 799 S.E.2d

816, 822 (2017) (quoting State v. Roy, 233 N.C. 558, 559, 64 S.E.2d 840, 841 (1951)),

so that, “[w]hen a defendant is indicted for a criminal offense, he may be convicted of

the charged offense or a lesser included offense when the greater offense charged in

the bill of indictment contains all of the essential elements of the lesser,” State v.

Thomas, 325 N.C. 583, 591, 386 S.E.2d 555, 559 (1989) (quoting State v. Weaver, 306


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                                 STATE V. LANGLEY

                                  Opinion of the Court



N.C. 629, 633, 295 S.E.2d 375, 377 (1982), abrogated on other grounds by State v.

Collins, 334 N.C. 54, 431 S.E.2d 188 (1993)). As a result, when defendant allegedly

committed the offense of robbery with a dangerous weapon on 8 October 2009 and 24

August 2011, he also committed the lesser included offense of common law robbery.

Thus, the Court of Appeals’ statement that “[i]t would be an impermissible inference

to read into the indictment that common law robbery took place on 8 October 2009 or

24 August 2011 because that is not what the grand jury found when it returned its

bill of indictment,” Langley, ___ N.C. App. at ___, 803 S.E.2d at 171, to the contrary

notwithstanding, the habitual felon indictment returned against defendant in this

case did effectively allege that defendant had both committed and been convicted of

common law robbery.

      As a result, for all of these reasons, we hold that the habitual felon indictment

returned against defendant in this case was not fatally defective, reverse the Court

of Appeals’ decision, and remand this case to the Court of Appeals consideration of

defendant’s remaining challenge to the trial court’s judgments.

      REVERSED AND REMANDED.




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