             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-787

                              Filed: 5 February 2019

New Hanover County, No. 04 CRS 54032

STATE OF NORTH CAROLINA

            v.

CORNELIUS EDWARD NIXON, III


      Appeal by Defendant from an Order entered 4 December 2017 by Judge Jay D.

Hockenbury in New Hanover County Superior Court. Heard in the Court of Appeals

14 January 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
      Hyde, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
      Katz, for defendant-appellant.


      HAMPSON, Judge.


                      I. Factual and Procedural Background

      On 7 November 2017, Cornelius Nixon (Defendant) filed a Motion for

Appropriate Relief (MAR), seeking relief from criminal convictions. The Record based

upon the proceedings on the MAR below tends to show the following relevant facts:

      On 26 July 2004, a New Hanover County grand jury indicted Defendant for

committing a Crime Against Nature. Subsequently, and at some point on or before 2

March 2006, a Bill of Information issued which charged Defendant with the offenses
                                          STATE V. NIXON

                                         Opinion of the Court



of Crime Against Nature, Indecent Liberties with a Child, and Contributing to the

Delinquency of a Juvenile.1 The Bill of Information included in the Record before us,

although signed by Defendant and his trial counsel, contains no express language

waiving indictment and no waiver of indictment is attached to the Bill of Information.

      On 2 March 2006, in accordance with a plea arrangement, Defendant pleaded

guilty to the charges of Indecent Liberties with a Child and Contributing to the

Delinquency of a Minor, and the State agreed to dismiss the charge of Crime Against

Nature. The presiding Superior Court Judge entered a consolidated Judgment on

two charges, sentencing Defendant to a minimum of 19 months and a maximum of

23 months in the custody of the North Carolina Department of Adult Correction. The

Judgment, however, erroneously included the charge of Crime Against Nature rather

than the charge of Contributing to the Delinquency of a Minor.

      On 7 November 2017, Defendant filed his MAR seeking to have the Judgment

against him arrested or vacated and alleging two claims for relief: (1) the trial court

lacked subject matter jurisdiction over all the charges because no waiver of

indictment was attached to or executed upon the Bill of Information such that

Defendant had not validly waived indictment; and (2) the Judgment erroneously

included the charge of Crime Against Nature, and should be corrected.




      1   The Bill of Information before us in the Record contains no date.

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                                   Opinion of the Court



      On 4 December 2017, the trial court entered its Order on Defendant’s MAR

granting Defendant relief in part. The trial court vacated the erroneous Crime

Against Nature conviction, but denied Defendant relief on his jurisdictional claim.

Specifically, the trial court found Defendant had signed the Bill of Information,

although the trial court recognized the document lacked specific language reciting

Defendant’s waiver of an indictment. The trial court concluded that, “[b]y signing the

bill of information, Defendant accepted it in lieu of an indictment and acknowledged

that he had received notice of the charges against him[,]” which “operate[d] as a

waiver of Defendant’s right to an indictment[.]”

      On 27 April 2018, this Court granted Defendant’s Petition for Writ of

Certiorari for the purpose of reviewing the 4 December 2017 Order. See N.C. Gen.

Stat. § 15A-1422(c)(3) (2017).

                                        II. Issue

      The sole issue is whether the trial court erred in denying Defendant’s MAR

alleging the trial court lacked subject matter jurisdiction to enter the original

Judgment where Defendant was charged by way of a Bill of Information which did

not include or attach an express waiver of indictment for the crimes of Indecent

Liberties with a Minor and Contributing to the Delinquency of a Minor.

                                     III. Analysis

                                 A. Standard of Review



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                                   Opinion of the Court



      “When considering rulings on motions for appropriate relief, we review the

trial court’s order to determine ‘whether the findings of fact are supported by

evidence, whether the findings of fact support the conclusions of law, and whether

the conclusions of law support the order entered by the trial court.’ ” State v. Frogge,

359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712,

720, 291 S.E.2d 585, 591 (1982)). “Conclusions of law are reviewed de novo and are

subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).

      “A defendant who seeks relief by motion for appropriate relief must show the

existence of the asserted ground for relief.” N.C. Gen. Stat. § 15A-1420(c)(6) (2017).

“If an evidentiary hearing is held, the moving party has the burden of proving by a

preponderance of the evidence every fact essential to support the motion.” N.C. Gen.

Stat. § 15A-1420(c)(5). As a result, a defendant seeking an MAR bears the burden of

proof before the trial court. State v. Hyman, ___ N.C. ___, ___, 817 S.E.2d 157, 172

(2018).

                            B. Denial of Defendant’s MAR

      A trial court “acquires jurisdiction of the offense by valid information, warrant,

or indictment.” State v. Willis, 285 N.C. 195, 201, 204 S.E.2d 33, 37 (1974). “There

can be no trial, conviction, or punishment for a crime without a formal and sufficient

accusation. In the absence of an accusation the court acquires no jurisdiction

whatever, and if it assumes jurisdiction a trial and conviction are a nullity.” McClure



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                                   Opinion of the Court



v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17-18 (1966) (citation and quotation marks

omitted). “[A] court has no authority to accept a plea to a charge until it has properly

acquired jurisdiction.” State v. Brown, 21 N.C. App. 87, 88, 202 S.E.2d 798, 798

(1974). “[A] plea of guilty standing alone does not waive a jurisdictional defect.” State

v. Stokes, 274 N.C. 409, 412, 163 S.E.2d 770, 772 (1968).

      Under the North Carolina Constitution:

          Except in misdemeanor cases initiated in the District Court
          Division, no person shall be put to answer any criminal charge
          but by indictment, presentment, or impeachment. But any
          person, when represented by counsel, may, under such
          regulations as the General Assembly shall prescribe, waive
          indictment in noncapital cases.

N.C. Const. Art. I, Sec. 22. In felony cases initiated in Superior Court, the General

Assembly has prescribed the pleading must be a bill of indictment, “unless there is a

waiver of the bill of indictment as provided in G.S. 15A-642.” N.C. Gen. Stat. § 15A-

923(a), (c) (2017). N.C. Gen. Stat. § 15A-642 allows for the waiver of an indictment in

non-capital cases in Superior Court where a defendant is represented by counsel. N.C.

Gen. Stat. § 15A-642(b) (2017). The statute further requires: “Waiver of Indictment

must be in writing and signed by the defendant and his attorney. The waiver must

be attached to or executed upon the bill of information.” N.C. Gen. Stat. § 15A-642(c).

      In this case, it is undisputed Defendant, along with his trial counsel, signed a

Bill of Information informing him of the charges against him and the relevant factual

details thereof. The form used for the Bill of Information itself contains absolutely no


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                                         Opinion of the Court



language waiving indictment and no waiver appears to be attached or included in the

Record before us. This Court has previously held “the absence of a sufficient

accusation or a formal waiver of indictment deprived the trial court of jurisdiction to

accept defendant’s plea and to enter judgment.” State v. Neville, 108 N.C. App. 330,

333, 423 S.E.2d 496, 497 (1992).

      The State contends we should not deem the specific statutory requirements of

section 15A-642 to be jurisdictional. The State further contends Defendant has

offered no evidence Defendant did not, in fact, waive indictment even if it is not

evidenced in writing and, thus, cannot meet his burden to show grounds for relief on

his MAR.2 However, in light of Neville, these statutory requirements intended to

carry out the constitutional mandate of Article I, Section 22 are jurisdictional and

mandatory. See, e.g., State v. Wolfe, 158 N.C. App. 539, 540-41, 581 S.E.2d 117, 118

(2003) (“Both our State Constitution and Criminal Procedure Act require indictment

or waiver thereof in order for a superior court to have jurisdiction in a criminal case”);

State v. Daniel, 19 N.C. App. 313, 314, 198 S.E.2d 464, 464 (1973) (under a

predecessor statute: “In non-capital felony cases a defendant may waive a bill of

indictment only when represented by counsel and when both defendant and his

counsel sign a written waiver of indictment” (emphasis in original)).




      2   The State offered no evidence of a waiver in fact to rebut Defendant’s claims.

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                                   Opinion of the Court



      The absence, in this case, of a formal waiver signed by both Defendant and his

counsel on or attached to the Bill of Information meeting the statutory requirements

of N.C. Gen. Stat. § 15A-642(c) deprived the trial court of jurisdiction to accept

Defendant’s guilty plea and enter the original Judgment.

      Moreover, the initial indictment for the charge of Crime Against Nature – a

charge which was ultimately dismissed pursuant to the plea arrangement – does not

vest the trial court with jurisdiction over the subsequent charges of Indecent Liberties

and Contributing to the Delinquency of a Minor. While it is true an indictment for

one offense may permit a defendant to be lawfully convicted of lesser included

offenses, neither Indecent Liberties nor Contributing to the Delinquency of a Minor

is a lesser included offense of Crime Against Nature. See State v. Copeland, 11 N.C.

App. 516, 520, 181 S.E.2d 722, 724 (1971) (Indecent Liberties is not a lesser included

offense of Crime Against Nature); State v. Cronan, 100 N.C. App. 641, 646, 397 S.E.2d

762, 765 (1990) (“the act of sexual intercourse is not inherent to the crime of

contributing to the delinquency of a minor”). We hold Defendant has met his burden

to show the existence of the asserted grounds for relief in his MAR. See Hyman, ___

N.C. at ___, 817 S.E.2d at 172.

                                    IV. Conclusion

      Accordingly, we reverse the portion of the trial court’s 4 December 2017 Order

denying Defendant’s MAR. We remand this matter to the trial court, with



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                               Opinion of the Court



instructions to grant the MAR, and to vacate the 2 March 2006 Judgment against

Defendant.

     REVERSED AND REMANDED.

     Chief Judge McGEE and Judge HUNTER concur.




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