              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-904

                                 Filed: 7 June 2016

Catawba County, No. 13 CRS 52263

STATE OF NORTH CAROLINA

             v.

SANDRA MESHELL BRICE, Defendant.


      Appeal by defendant from judgment entered 12 February 2015 by Judge

Michael D. Duncan in Catawba County Superior Court.           Heard in the Court of

Appeals 24 February 2016.


      Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel L.
      Spiegel, for defendant.

      Attorney General Roy Cooper, by Assistant Attorney General Nancy Dunn
      Hardison, for the State.


      ELMORE, Judge.


      Defendant argues on appeal that the indictment against her was fatally

defective because it failed to comply with the requirements set forth in N.C. Gen.

Stat. § 15A-928. Defendant’s petition for certiorari is allowed by this Court so that

we may review the judgment entered. In accordance with State v. Williams, 153 N.C.

App. 192, 568 S.E.2d 890 (2002), we hold that the indictment was insufficient to

confer jurisdiction upon the trial court. We vacate defendant’s conviction for habitual
                                  STATE V. BRICE

                                 Opinion of the Court



misdemeanor larceny and remand for entry of judgment and sentence for

misdemeanor larceny.


                                  I. Background

      On 22 July 2013, a Catawba County Grand Jury indicted Sandra Meshell Brice

(defendant) on one count of “habitual misdemeanor larceny” for stealing five packs of

steaks valued at $70.00. The indictment alleged:

             that on or about [21 April 2013] and in [Catawba County]
             the defendant named unlawfully, willfully, and feloniously
             did steal, take, and carry away FIVE PACKS OF STEAKS,
             the personal property of FOOD LION, LLC, such property
             having a value of SEVENTY DOLLARS ($70.00), and the
             defendant has had the following four prior larceny
             convictions in which he was represented by counsel or
             waived counsel:

             On or about MAY 8, 1996 the defendant committed the
             misdemeanor of LARCENY in violation of the law of the
             State of North Carolina, G.S. 14-72, and on or about
             SEPTEMBER 10, 1996 the defendant was convicted of the
             misdemeanor of LARCENY in the District Court of Lincoln
             County, North Carolina; and that

             On or about FEBRUARY 19, 1997 the defendant
             committed the misdemeanor of LARCENY in violation of
             the law of the State of North Carolina, GS. 14-72, and on
             or about JULY 29, 1997 the defendant was convicted of the
             misdemeanor of LARCENY in the District Court of
             Catawba County, North Carolina; and that

             On or about JUNE 13, 2003 the defendant committed the
             misdemeanor of LARCENY in violation of the law of the
             State of North Carolina, G.S. 14-72, and on or about
             OCTOBER 17, 2003 the defendant was convicted of the
             misdemeanor of LARCENY in the District Court of

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             Catawba County, North Carolina; and that

             On or about JULY 7, 2007 the defendant committed the
             misdemeanor of LARCENY in violation of the law of the
             State of North Carolina, G.S. 14-72, and on or about
             SEPTEMBER 24, 2007 the defendant was convicted of the
             misdemeanor of LARCENY in the District Court of
             Catawba County, North Carolina.

      At the beginning of trial, defendant stipulated to four prior misdemeanor

larceny convictions outside the presence of the jury. The trial court informed counsel

that it intended to proceed as if the trial was for misdemeanor larceny. The court

also informed the jury that defendant had been charged “with the offense larceny.”

      At the conclusion of trial, the jury found defendant guilty of larceny. The court

entered judgment against defendant for habitual misdemeanor larceny, and

sentenced defendant to ten to twenty-one months of imprisonment, suspended for

twenty-four months of supervised probation, and a seventy-five-day active term as a

condition of special probation. Defendant appeals.

                                   II. Discussion

      Defendant argues that the trial court lacked jurisdiction to enter a judgment

for habitual misdemeanor larceny because the indictment was fatally defective in

that it failed to comply with the mandates of N.C. Gen. Stat. § 15A-928. Although

defendant failed to challenge the sufficiency of the indictment in the trial court,

“where an indictment is alleged to be invalid on its face, thereby depriving the trial

court of its jurisdiction, a challenge to that indictment may be made at any time, even


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if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481, 503, 528

S.E.2d 326, 341 (citations omitted), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498

(2000), reh’g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001). Therefore, we address

defendant’s argument on the merits.

      A valid indictment is required to confer jurisdiction upon the trial court. State

v. Covington, 258 N.C. 501, 503, 128 S.E.2d 827, 829 (1963); State v. Morgan, 226

N.C. 414, 415, 38 S.E.2d 166, 167 (1946).        “ ‘When the record shows a lack of

jurisdiction in the lower court, the appropriate action on the part of the appellate

court is to arrest judgment or vacate any order entered without authority.’ ” State v.

Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 836 (1993) (quoting State v. Felmet, 302

N.C. 173, 176, 273 S.E.2d 708, 711 (1981)). Challenges to the sufficiency of an

indictment are reviewed de novo. State v. Pendergraft, ____ N.C. App. ____, ____, 767

S.E.2d 674, 679 (Dec. 31, 2014) (COA14-39) (citing State v. Marshall, 188 N.C. App.

744, 748, 656 S.E.2d 709, 712 (2008)).

      In trials in superior court where a defendant’s prior convictions are alleged as

part of a charged offense, the pleading must comply with the provisions of section

15A-928. N.C. Gen. Stat. § 15A-924(c) (2015). Section 15A-928 provides, in pertinent

part, as follows:

             (a) When the fact that the defendant has been previously
             convicted of an offense raises an offense of lower grade to
             one of higher grade and thereby becomes an element of the
             latter, an indictment or information for the higher offense


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                                   Opinion of the Court



             may not allege the previous conviction. . . .

             (b) An indictment or information for the offense must be
             accompanied by a special indictment or information, filed
             with the principal pleading, charging that the defendant
             was previously convicted of a specified offense. At the
             prosecutor’s option, the special indictment or information
             may be incorporated in the principal indictment as a
             separate count. . . .

             ....

             (d) When a misdemeanor is tried de novo in superior court
             in which the fact of a previous conviction is an element of
             the offense affecting punishment, the State must replace
             the pleading in the case with superseding statements of
             charges separately alleging the substantive offense and the
             fact of any prior conviction, in accordance with the
             provisions of this section relating to indictments and
             informations.


N.C. Gen. Stat. § 15A-928(a), (b) & (d) (2015) (emphasis added).

      Turning to the offenses at issue, larceny is punishable as a Class 1

misdemeanor where the value of the property stolen is not more than $1,000.00. N.C.

Gen. Stat. § 14-72(a) (2015). If, however, at the time of the offense the defendant had

four prior larceny convictions, then the offense is punishable as a Class H felony.

N.C. Gen. Stat. § 14-72(a) & (b)(6) (2015). In such a case, the defendant’s prior

convictions are treated as elements to elevate the principal offense from a

misdemeanor to a felony. Therefore, an indictment for habitual misdemeanor larceny

is subject to the provisions of N.C. Gen. Stat. § 15A-928.



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                                   Opinion of the Court



      On its face, the indictment here failed to comply with N.C. Gen. Stat. § 15A-

928. The State used the instrument to charge defendant with habitual misdemeanor

larceny and to list defendant’s prior convictions. Although section 15A-928(b) allows

the State to incorporate “the special indictment or information” into the principal

indictment, defendant’s prior convictions were not alleged in a separate count.

Rather, the sole indictment issued in this case lists a single count of “habitual

misdemeanor larceny,” alleging defendant’s prior convictions thereafter.

      Nevertheless, the State cites State v. Jernigan, 118 N.C. App. 240, 455 S.E.2d

163 (1995), for the proposition that errors under section 15A-928 are not reversible

unless the defendant was prejudiced. In Jernigan, the trial court failed to arraign

defendant in accordance with N.C. Gen. Stat. § 15A-928(c), as it “did not formally

arraign defendant upon the charge alleging the previous convictions and did not

advise defendant that he could admit the previous convictions, deny them, or remain

silent . . . .” Id. at 243, 455 S.E.2d at 165. Before trial, however, defendant stipulated

to his previous convictions which were set forth in the indictment. Id. at 243–44, 455

S.E.2d at 165–66. We held that the trial court’s failure to follow the arraignment

procedures under section 15A-928(c) was not reversible error because it was “clear

that defendant was fully aware of the charges against him, that he understood his

rights and the effect of the stipulation, and that he was in no way prejudiced by the




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failure of the court to formally arraign him and advise him of his rights.” Id. at 245,

455 S.E.2d at 167.

      While the State’s argument under Jernigan is persuasive, its proposition fails

because a formal arraignment under section 15A-928(c) is not a matter of

jurisdictional consequence. In State v. Williams, 153 N.C. App. 192, 568 S.E.2d 890

(2002), disc. review improvidently allowed, 375 N.C. 45, 577 S.E.2d 618 (2003), we

held that where the State failed to charge the defendant with habitual misdemeanor

assault in a special indictment or separate count of the principal indictment, in

accordance with section 15A-928(b), the trial court was without jurisdiction to

sentence defendant for habitual misdemeanor assault. Id. at 194–95, 568 S.E.2d at

892. Despite this Court’s previous decision in Jernigan, no showing of prejudice was

required to vacate the judgment in Williams. We believe Williams controls the

disposition sub judice.

                                  III. Conclusion

      Because the indictment did not comply with the requirements of N.C. Gen.

Stat. § 15A-928 regarding indictments and informations, the trial court was without

jurisdiction to enter judgment against defendant for habitual misdemeanor larceny.

We vacate defendant’s conviction and remand for entry of judgment and sentence on

misdemeanor larceny.      See Williams, 153 N.C. App. at 196, 568 S.E.2d at 893

(remanding for entry of judgment on misdemeanor assault on a female).



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                       Opinion of the Court



VACATED AND REMANDED. NEW SENTENCING.

Judges HUNTER, JR. and DAVIS concur.




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