              IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 371PA13

                              FILED 12 JUNE 2014

STATE OF NORTH CAROLINA

             v.
WILLIAM HERBERT PENNELL, IV


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

decision of the Court of Appeals, ___ N.C. App. ___, 746 S.E.2d 431 (2013), affirming

in part, vacating and remanding in part, and arresting in part judgments entered

on 5 June 2012 by Judge Christopher W. Bragg in Superior Court, Iredell County.

Heard in the Supreme Court on 19 February 2014.


      Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy
      Attorney General, and Joseph L. Hyde, Assistant Attorney General, for the
      State-appellant.

      Staples S. Hughes, Appellate Defender, by Jason Christopher Yoder, Assistant
      Appellate Defender, for defendant-appellee.


      BEASLEY, Justice.

      We consider whether, on direct appeal from the activation of a suspended

sentence, a defendant may challenge the jurisdictional validity of the indictment

underlying his original conviction.    Because a challenge to the validity of the

original judgment constitutes an impermissible collateral attack, we hold that

defendant’s appeal was not proper.     Accordingly, we reverse the decision of the

Court of Appeals with respect to this issue.
                                 STATE V. PENNELL

                                 Opinion of the Court



      Defendant William Herbert Pennell pleaded guilty on 2 December 2010 to

two counts of felony breaking or entering, two counts of felony larceny after

breaking or entering, and one count of possession of cocaine. Defendant received

four consecutive sentences of eight to ten months for each of the property offenses

and one sentence of six to eight months for the drug possession conviction. Under a

plea arrangement, defendant’s sentences were suspended and he was placed on

thirty-six months of supervised probation.

      On 16 June 2011, defendant’s probation officer filed five probation violation

reports.   After a hearing, the trial court modified defendant’s sentences by

extending the length of his probation by twenty-four months. Defendant’s probation

officer filed five additional violation reports on 18 August 2011. On 13 October

2011, the trial court revoked defendant’s probation and activated his sentence on

one count of larceny after breaking or entering in case number 10 CRS 57417. The

trial court modified defendant’s other sentences to add six months of intensive

supervised probation following his release from his activated sentence.

      On 3 February 2012, defendant’s probation officer filed four additional

probation violation reports. After a hearing, the trial court entered judgment on 5

June 2012 revoking defendant’s probation and activating his sentences for the

remaining offenses for which he was on probation.

      Defendant appealed the 5 June 2012 judgments to the Court of Appeals. In



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his appeal defendant first argued that the trial court erred in activating his

sentence for larceny after breaking or entering in case number 10 CRS 57417

because his sentence for this count of larceny had already been activated and served

pursuant to the trial court’s revocation of defendant’s probation on 13 October 2011.

The Court of Appeals agreed. State v. Pennell, ___ N.C. App. ___, ___, 746 S.E.2d

431, 444 (2013). The Court of Appeals concluded that the trial court intended to

revoke defendant’s probation for the count of breaking or entering in case number

10 CRS 57417 rather than the count of larceny after breaking or entering in the

case having the same number, and remanded the judgment and commitment to the

trial court to correct the clerical mistake in its judgment. Id. at ___, 746 S.E.2d at

444.

       Defendant’s second argument before the Court of Appeals was that the trial

court lacked subject matter jurisdiction to revoke his probation on the count of

felony larceny in case number 09 CRS 53255 because the original indictment for the

offense was fatally defective.   Relying predominantly on this Court’s holding in

State v. Ray, 212 N.C. 748, 194 S.E. 472 (1938), the Court of Appeals held that

defendant’s appeal was proper, determined that the original indictment was

defective, and arrested revocation of defendant’s probation on that count. Pennell,

___ N.C. App. at ___, 746 S.E.2d at 442-44. On 3 October 2013, we allowed the

State’s petition for discretionary review. State v. Pennell, ___ N.C. ___, 748 S.E.2d

534 (2013).

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                                  Opinion of the Court



      The issue now before this Court is whether a defendant may collaterally

challenge the validity of an underlying indictment by means of an appeal from

revocation of his probation. The State contends that defendant may not challenge

the indictment underlying his conviction in an appeal from a judgment revoking

probation because the appeal constitutes an impermissible collateral attack on the

initial judgment accepted by defendant under his 2 December 2010 guilty plea. In

response, defendant argues that because the original indictment was facially

defective, the trial court lacked subject matter jurisdiction to adjudicate one charge

of larceny, and therefore, the court’s initial judgment is void. Defendant asserts

that a challenge to the trial court’s jurisdiction “may be raised at any time” and that

“a collateral attack is permissible when the underlying judgment is void.”

Defendant contends that it is therefore appropriate to hear a challenge to the trial

court’s jurisdiction over the original conviction and sentence in an appeal from the

probation revocation activating his suspended sentence.

      The Court of Appeals agreed with defendant’s arguments and held that

defendant’s appeal was proper. Pennell, ___ N.C. App. at ___, 746 S.E.2d at 442.

Central to its conclusion was this Court’s holding in State v. Ray. Id. at ___, 746

S.E.2d at 439. There, the defendant was indicted for embezzlement but pleaded

guilty to a charge of trespass.     Ray, 212 N.C. at 748, 194 S.E. at 472.         The

defendant’s sentence was suspended on the condition that he pay specific

remuneration to the trial court for the benefit of individuals we presume to be the

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                                  Opinion of the Court



victims of his embezzlement. Id. at 748-49, 194 S.E. at 472-73. After the defendant

failed to comply with these conditions, the trial court ordered that “the jail sentence

imposed by the previous judgment be put into execution.” Id. at 750, 194 S.E. at

473.   In response to the defendant’s appeal, this Court concluded that “[t]he

defendant’s motion in arrest of judgment, on account of defect in the bill of

indictment for embezzlement, cannot be sustained, since he was neither tried nor

sentenced under that bill nor for that offense.” Id. at 750, 194 S.E. at 473-74. From

this determination the Court of Appeals concluded that, because this Court

“addressed a defendant’s argument, in an appeal from the revocation of a suspended

sentence, that the indictment for the underlying sentence was defective,” our

precedent demonstrated that such an appeal was properly before the Court and

thus may be addressed on its merits. Pennell, ___ N.C. App. at ___, 746 S.E.2d at

439.

       We take this opportunity to address Ray and reemphasize the limitations this

Court has since recognized with respect to challenges to jurisdiction on appeal.

First, this Court in Ray did not squarely address whether a jurisdictional challenge

to an original judgment may be raised in an appeal from the activation of a

suspended sentence. Rather, this Court observed that the defendant’s assertion of

error was baseless because the defendant was not convicted under the indictment

he was attempting to challenge.       This brief conclusion by our Court that the

defendant’s appeal lacked merit for this reason is altogether insufficient to support

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the weight placed upon it by the Court of Appeals.

        Moreover, since deciding Ray this Court has recognized limitations on

challenges to jurisdiction on appeal.      “While it is true that a defendant may

challenge the jurisdiction of a trial court, such challenge may be made in the

appellate division only if and when the case is properly pending before the appellate

division.” State v. Absher, 329 N.C. 264, 265 n.1, 404 S.E.2d 848, 849 n.1 (1991)

(per curiam). Our inquiry is thus whether defendant’s case is properly before our

appellate courts.

        In State v. Holmes, 361 N.C. 410, 646 S.E.2d 353 (2007), this Court addressed

“whether a suspended sentence can be challenged when appealing the trial court’s

order revoking probation and activating the sentence.” Id. at 411, 646 S.E.2d at

354.    There the defendant pleaded guilty to second-degree kidnapping, assault

inflicting serious bodily injury, and accessory after the fact to second-degree rape.

Id.    He was sentenced in the aggravated range for the kidnapping and assault

charges, but all his sentences were suspended. 361 N.C. at 411-12, 646 S.E.2d at

354. The defendant did not appeal the sentences. Id. at 412, 646 S.E.2d at 354. A

year later, defendant violated the conditions of his probation and his three

sentences were activated. Id. He appealed the activation of his sentences, arguing,

inter alia, that “his sentences for kidnapping and assault were unconstitutionally

aggravated in violation of the United States Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).”             Id.


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                                  Opinion of the Court



Recognizing the reasoning of prior cases from the Court of Appeals, we held that “a

direct appeal from the original judgment lies only when the sentence is originally

entered.” 361 N.C. at 411, 646 S.E.2d at 354.

      In reaching our holding in Holmes, we were persuaded by the reasoning of

the Court of Appeals in State v. Noles, 12 N.C. App. 676, 184 S.E.2d 409 (1971), and

State v. Rush, 158 N.C. App. 738, 582 S.E.2d 37 (2003). Holmes, 361 N.C. at 412-13,

646 S.E.2d at 355.   The Court of Appeals in Noles addressed facts similar to those

presently before us: in an appeal from the revocation of his probation, the defendant

in Noles attacked “the validity of the warrant upon which he was originally tried . . .

because there was no affirmative showing on the record that the defendant entered

a plea of guilty understandingly and voluntarily.” Noles, 12 N.C. App. at 678, 184

S.E.2d at 410. The Court of Appeals concluded that the defendant’s appeal was not

proper because “inquiries [when appealing from an order activating a suspended

sentence] are permissible only to determine whether there is evidence to support a

finding of a breach of the conditions of the suspension, or whether the condition

which has been broken is invalid because it is unreasonable or is imposed for an

unreasonable length of time.” Id. (citing State v. Caudle, 276 N.C. 550, 173 S.E.2d

778 (1970)). The Court of Appeals thus concluded that “[q]uestioning the validity of

the original judgment where sentence was suspended on appeal from an order

activating the sentence is, we believe, an impermissible collateral attack.” Id.

      More than thirty years later, the Court of Appeals again addressed similar


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                                 Opinion of the Court



facts. The defendant in State v. Rush entered into a plea agreement with the State

in which the defendant “would receive two 24-month suspended sentences.” Rush,

158 N.C. App. at 739, 582 S.E.2d at 38. But the judgment documents suspending

the sentences and signed by the defendant stated that the two sentences being

suspended were “for a minimum term of 24 months and a maximum term of 38

months.”   Id.   The defendant later violated her probation, and the trial court

activated the sentences as stated in the judgment forms. 158 N.C. App. at 740, 582

S.E.2d at 38. On appeal from the revocation of the defendant’s probation, the Court

of Appeals determined that “by failing to exercise any of her options” to assert that

the judgment entered was inconsistent with her plea agreement, the defendant’s

appeal “amount[ed] to an impermissible collateral attack on the initial judgment.”

Id. at 741, 582 S.E.2d at 39 (citing Noles, 12 N.C. App. at 678, 184 S.E.2d at 410)

(summarizing the defendant’s options to assert error as (1) filing a motion under

N.C.G.S. § 15A-1024 to withdraw her guilty plea based on the judgments being

inconsistent with the plea agreement, (2) appealing within ten days after entry of

the judgments if her grounds of appeal fell under N.C.G.S. § 15A-1444, and (3) filing

a petition for writ of certiorari as permitted under section 15A-1444(e)). In Holmes

this Court summarized the Court of Appeals’ determination in Rush to be that “by

failing to appeal from the original judgment suspending her sentences, the

defendant waived any challenge to that judgment and thus could not attack it in the

appeal of a subsequent order activating her sentence.” Holmes, 361 N.C. at 413,


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                                 Opinion of the Court



646 S.E.2d at 355 (citing Rush, 158 N.C. App. at 741, 582 S.E.2d at 39).

      In finding Noles and Rush to be persuasive, this Court observed that the

defendant in Holmes could have appealed his initial judgments, but failed to do so.

Id. The Court thus concluded that the defendant’s attempt to subsequently attack

the sentences imposed in those original judgments in an appeal from the order

revoking his probation and activating his sentence was “an impermissible collateral

attack on the original judgments.” Id.

      The reasoning this Court found persuasive in Holmes is also persuasive here.

As in Holmes, defendant failed to appeal from his original judgment. He may not

now appeal the matter collaterally via a proceeding contesting the activation of the

sentence imposed in the original judgment.1 As such, defendant’s present challenge

to the validity of his original conviction is improper.    Because a jurisdictional

challenge may only be raised when an appeal is otherwise proper, Absher, 329 N.C.

at 265 n.1, 404 S.E.2d at 849 n.1, we hold that a defendant may not challenge the

jurisdiction over the original conviction in an appeal from the order revoking his

probation and activating his sentence.         The proper procedure through which

defendant may challenge the facial validity of the original indictment is by filing a


      1  State v. Neeley, 307 N.C. 247, 249, 297 S.E.2d 389, 391 (1982), establishes
that a defendant may raise a constitutional claim of right to counsel for the first
time after a suspended sentence has been activated. Id. As we observed in Neeley,
however, our holding there “only addresses those circumstances in which a
defendant seeks to challenge the validity of an original uncounseled prison sentence
at a later time when the prison sentence is activated.” 307 N.C. at 250, 297 S.E.2d
at 391 (emphasis added).

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                                  Opinion of the Court



motion for appropriate relief under N.C.G.S. § 15A-1415(b) or petitioning for a writ

of habeas corpus. Our holding here does not prejudice defendant from pursuing

these avenues.

      For the reasons stated above, we reverse the decision of the Court of Appeals

on the issue of whether defendant’s appeal may be based solely upon a challenge to

the trial court’s original jurisdiction and instruct the Court of Appeals to reinstate

the judgment of the trial court revoking defendant’s probation on the felony larceny

count in case number 09 CRS 53255.           The holding by the Court of Appeals

addressing the trial court’s clerical error in activating a sentence that defendant

had already served is not before this Court and remains undisturbed.



REVERSED IN PART.




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