An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-742-2
                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


STATE OF NORTH CAROLINA


      v.                                      Cabarrus County
                                              Nos. 09 CRS 7222-24, 704463,
                                              709818, 710308
YOSHEIKA CHARMAINE SMITH


      Appeal by Defendant from judgment entered 7 March 2013 by

Judge Tanya T. Wallace in Cabarrus County Superior Court.                     Heard

in the Court of Appeals 21 November 2013.                  Unpublished opinion

filed    4   February     2014.      Petition     for    discretionary      review

allowed by the North Carolina Supreme Court for remand to this

Court for reconsideration 12 June 2014.


      Attorney General Roy Cooper, by Assistant Attorneys General
      Thomas E. Kelly and Joseph L. Hyde, for the State.

      Amanda S. Zimmer for Defendant.


      STEPHENS, Judge.


                              Procedural History

      This opinion is the second filed by this panel in Defendant

Yosheika Charmaine Smith’s appeal from the revocation of her
                                        -2-
probation.         On 24 August 2009, Defendant was indicted for two

counts of possession with intent to sell cocaine, and one count

each   of    selling     cocaine,   delivering       cocaine,   and    selling    or

delivering cocaine near a playground.                    On 24 February 2011,

pursuant to a plea agreement with the State, Defendant entered

an Alford plea to those charges and to three counts of driving

with a revoked license.             Pursuant to the agreement, the State

dismissed         five   other   charges       pending     against      Defendant,

including     speeding,     failure     to    wear   a   seatbelt,    and   driving

while license revoked.           The trial court entered a consolidated

judgment which imposed a suspended prison sentence of 29 to 44

months      and    placed   Defendant    on    supervised    probation      for   24

months.1

       A violation report filed on 28 November 2012 alleged three

violations of the conditions of Defendant’s probation, each of

which Defendant admitted at a March 2013 hearing.                    After finding

that Defendant had “violated her supervised probation in each

and every way cited[,]” on 7 March 2013, the trial court entered



1
  Less than five months later, Defendant’s probation officer
filed a report alleging that Defendant had violated four
conditions of her probation. On 1 December 2011, after finding
that Defendant committed three of the alleged violations, the
trial court modified Defendant’s probation, found her in
contempt, and ordered her to serve a thirty-day jail sentence.
                                         -3-
judgment     revoking      Defendant’s        probation    and     activating        her

suspended    sentence.       From      that    judgment,   Defendant       appealed,

arguing that the trial court (1) lacked jurisdiction to revoke

her   probation      for    selling      or     delivering       cocaine      near    a

playground because the underlying indictment on that charge was

fatally defective and (2) abused its discretion by revoking her

probation.      On   11    July    2013,      Defendant    filed    a     motion     for

appropriate relief (“MAR”) pursuant to N.C. Gen. Stat. § 15A-

1415, again raising the indictment issue and asking that her

sentence for the sale or delivery of cocaine near a playground

be vacated.     In a unanimous, unpublished opinion, we held that

Defendant’s attack on the validity of the underlying judgment

against her was properly before us, citing this Court’s decision

in State v. Pennell, __ N.C. App. __, 746 S.E.2d 431 (2013), and

further    concluded      that   the   challenged     indictment        was   fatally

flawed.     State v. Smith, __ N.C. App. __, 757 S.E.2d 523 (2014)

(unpublished), available at 2014 N.C. App. LEXIS 140.                              As a

result,    we   vacated     both    Defendant’s      original       and    probation

revocation judgments and remanded for resentencing.                     Because the

indictment issue was addressed and resolved in the opinion, we

dismissed Defendant’s MAR.
                                    -4-
      By order entered 12 June 2014, the North Carolina Supreme

Court allowed the State’s petition for discretionary review for

the   limited     purpose     of   remanding     to   this   Court       for

reconsideration in light of its decision in State v. Pennell, __

N.C. __, 758 S.E.2d __ (June 12, 2014).          By order of the Chief

Judge entered 16 June 2014, this panel was reconvened to review

the order of the Supreme Court.           On the same date, Defendant

filed in this Court a motion to reconsider her 11 July 2013 MAR.

The State filed its response to Defendant’s motion to reconsider

her MAR on 26 June 2014.

                               Discussion

      In Pennell, our Supreme Court held

           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 [a] defendant
           may challenge the facial validity of the
           original indictment is by filing a motion
           for appropriate relief under N.C. [Gen.
           Stat.] § 15A-1415(b) or petitioning for a
           writ of habeas corpus.

Id. at __, __ S.E.2d at __.        Defendant has filed a motion asking

this Court to reconsider her MAR.           In its response, the State

contends   that   Defendant   is   essentially   asking   this   Court    to

rehear her MAR and argues we lack the authority to do so because

our Appellate Rules prohibit us from “entertain[ing] petitions
                                       -5-
for rehearing in criminal actions.”             N.C.R. App. P. 31(g).      We

agree.

      We are not, however, persuaded by the State’s contention

that, because the State only “sought review of this Court’s

opinion in Smith, contending this Court erred in relying on [the

opinion of this Court in] Pennell[,] . . . [and] did not seek

review of this Court’s disposition of Defendant’s MAR[,]” our

Supreme Court’s remand of the case for reconsideration in light

of Pennell “does not embrace the disposition of the MAR.”                   As

noted supra, the issue addressed by our Supreme Court in Pennell

was   “the    proper    procedure     through   which    [a]   defendant   may

challenge the facial validity of the original indictment” on

appeal from the revocation of probation and activation of the

original sentence.       Pennell, __ N.C. at __, __ S.E.2d at __.           By

filing   an    MAR     along   with    her   direct     appeal,   Defendant’s

appellate counsel presented this panel two routes by which to

reach the merits of her challenge to the facial validity of the

original indictment in her case, and we relied on the then-

binding precedent of Pennell in selecting the proper route under

which to proceed.        Our Supreme Court has now clarified the law

and directed us to reconsider this very point.
                                                -6-
    Further, as the State correctly notes,                               a panel of       this

Court may, upon motion of a party or upon its own motion, change

its previous ruling “if the court determines that its former

ruling was clearly erroneous.”                        N.C. Nat’l Bank v. Virginia

Carolina       Builders,         307    N.C.    563,       567,   299    S.E.2d   629,    632

(1983).        Under our Supreme Court’s decision in                           Pennell,   our

previous       decision          in    this     matter,      to    address      Defendant’s

argument on direct appeal rather than by consideration of the

merits    of    her       MAR,    was    clearly       erroneous.         Accordingly,     we

address the issue raised in Defendant’s MAR, to wit, that the

trial    court    lacked         jurisdiction         to    revoke      her   probation   and

activate her sentence on the charge of selling or delivering

cocaine    near       a    playground          because      the   indictment      for     that

offense is fatally defective.

    At the time Defendant was charged, certain drug offenses

committed on “property that is a public park or within 1,000

feet of the boundary of real property that is a public park”

constituted Class E felonies.                     N.C. Gen. Stat. § 90-95(e)(10)

(2007).    Defendant contends that the indictment on this charge

“fails to allege [that] the sale or delivery took place in a

public park and fails [to name] the individual to which the
                                    -7-
controlled substance was sold or delivered.”             We agree that the

indictment was fatally defective.

    Superior court criminal jurisdiction cannot rest upon an

invalid    indictment.     “[O]ur   Constitution      requires       a    bill   of

indictment, unless waived, for all criminal actions originating

in the Superior Court, and a valid bill is necessary to vest the

court   with   authority   to    determine    the   question    of       guilt   or

innocence.”     State v. Bissette, 250 N.C. 514, 515, 108 S.E.2d

858, 859 (1959).     It is well settled that an indictment for the

sale or delivery of a controlled substance must name the person

to whom the defendant allegedly sold or delivered the narcotics

or, in the alternative, allege that the name of the person is

unknown.    State v. Bennett, 280 N.C. 167, 168, 185 S.E.2d 147,

148 (1971); Bissette, 250 N.C. at 517, 108 S.E.2d at 861 (“Where

a sale is prohibited, it is necessary, for a conviction, to

allege in the bill of indictment the name of the person to whom

the sale was made or that his name is unknown, unless some

statute eliminates that requirement.”).

    Here,      Defendant   was   charged     with   selling    or    delivering

cocaine near a playground as follows:

            The [j]urors for     the State upon their oath
            present that on      or about the date of the
            offense shown and     in the county named above,
            the   defendant      named   above   unlawfully,
                                 -8-
           willfully, and feloniously did commit an
           offense under North Carolina General Statute
           90-95(a)(1) of sell and deliver, a controlled
           substance [c]ocaine, within 1,000 feet of the
           real property boundary of Concord Chase
           Apartment’s play ground [sic].

The indictment alleges neither the name of the person to whom

Defendant allegedly sold cocaine nor that the name of the person

is   unknown.     “Lacking    either     of    these    allegations,   the

indictment is fatally defective and cannot sustain the judgment

in that case.”    State v. Long, 14 N.C. App. 508, 510, 188 S.E.2d

690, 691 (1972); see also State v. Calvino, 179 N.C. App. 219,

221-22, 632 S.E.2d 839, 842 (2006).2          We therefore vacate the 24

February   2011   judgment   which     was    entered   upon   Defendant’s

consolidated convictions.




2
  In addition, there is no indication in the indictment or the
record as to whether the “Concord Chase Apartment’s play ground
[sic]” is a public park under section 90-95(e)(10). A previous
version of the statute provided that “[a]ny person 21 years of
age or older who commits an offense under [N.C. Gen. Stat. §]
90-95(a)(1) on property that is a playground in a public park or
within 300 feet of the boundary of real property that is a
playground in a public park shall be punished as a Class E
felon.”    N.C. Gen. Stat. § 90-95(e)(10)(2005).       The term
“playground” was defined as “any outdoor facility . . . intended
for recreation open to the public.”   Id.   However, the General
Assembly later amended section 90-95(e)(10) to remove the word
“playground” and the sentence defining “playground.”    See 2007
N.C. Sess. Laws ch. 375, §§ 1-2.          In any event, having
determined that the indictment is flawed on other grounds, we
need not resolve this question.
                                     -9-
       We must    also vacate the     7 March 2013           judgment    revoking

Defendant’s      probation.     A   “trial      judge   is   required     by   the

Structured Sentencing Act to enter judgment on a sentence for

the most serious offense in a consolidated judgment . . . .”

State v. Tucker, 357 N.C. 633, 637, 588 S.E.2d 853, 855 (2003);

see also N.C. Gen. Stat. § 15A-1340.15(b) (2013) (“The judgment

shall contain a sentence disposition specified for the class of

offense and prior record level of the most serious offense, and

its minimum sentence of imprisonment shall be within the ranges

specified for that class of offense and prior record level . . .

.”).     Here, Defendant’s conviction for the sale or delivery of

cocaine near a playground pursuant to N.C. Gen. Stat. § 90-

95(e)(10) was a Class E felony, the most serious offense of

those    consolidated    for   judgment    by    the    trial   court.     Thus,

Defendant’s sentence was entered upon her conviction for the

sale or delivery of cocaine          near a playground, a conviction

based upon a fatally flawed indictment.             Such a sentence is void

and a nullity, see McClure v. State, 267 N.C. 212, 215, 148

S.E.2d    15,    17-18   (1966),    and    a    void    sentence    cannot     be

activated.       Accordingly, we also vacate the judgment revoking

Defendant’s probation.

       Finally, we remand this case             to the superior court for
                                    -10-
disposition on all of the remaining original charges against

Defendant.     As noted supra, Defendant’s sentence was the result

of a plea agreement, a crucial part of which was Defendant’s

plea of guilty to the charge of selling or delivering cocaine

near a playground.      Defendant has repudiated that portion of the

agreement.     “Although a plea agreement occurs in the context of

a criminal proceeding, it remains contractual in nature.         A plea

agreement will be valid if both sides voluntarily and knowingly

fulfill every aspect of the bargain.”         State v. Rico, 218 N.C.

App. 109, 122, 720 S.E.2d 801, 809 (Steelman, J., dissenting in

part) (citations and internal quotation marks omitted), reversed

in part per curiam for the reasons stated in the dissent, 366

N.C.    327,   734   S.E.2d   571   (2012).   “[A   d]efendant   cannot

repudiate [a plea agreement] in part without repudiating the

whole.”    Id.   In such cases, the entire plea agreement must be

set aside and the case remanded for disposition on all of the

charges affected by the plea agreement.       Id.

       VACATED and REMANDED.

       Judges GEER and ERVIN concur.

       Report per Rule 30(e).
