Earlier this month, the state supreme court rejected a defendant’s challenge to his conviction for possession of a firearm by a felon pursuant to an indictment that failed to comport with a statutory pleading requirement. That case, State v. Newborn, 330PA21, ___ N.C. ___ (June 16, 2023), is the latest in a decade of rulings determining that technical pleading defects do not deprive the trial court of jurisdiction. This post will review Newborn and consider its place among jurisprudence departing from the traditional view that a defective pleading fails to vest jurisdiction.
jurisdiction
Convictions Vacated for “Technical” Pleading Defects
Two recent cases from the North Carolina appellate courts indicate that reports of the demise of technical pleading requirements may have been greatly exaggerated. I am responsible for at least one of those reports. Several years ago, I posted about State v. Brawley, 370 N.C. 626 (2018) (per curiam), in which the North Carolina Supreme Court affirmed a conviction based on an indictment charging the defendant with stealing shirts belonging to “Belk’s Department Stores, an entity capable of owning property,” even though “Belk’s Department Stores” was not the full legal name of the entity that suffered the loss. I noted then that Brawley was one in a series of recent state supreme court opinions rejecting claims that technical pleading defects deprived the trial court of jurisdiction over the offense. See also State v. Jones, 255 N.C. App. 364 (2017) (failure to allege every element in a citation was not a jurisdictional defect).
Yet, in recent months, the North Carolina Court of Appeals has issued two published opinions vacating convictions based on fatally defective indictments. The first was a rape conviction pursuant to an indictment that failed to allege the defendant knew the victim was physically helpless. State v. Singleton, 285 N.C. App. 630 (2022). The second was a conviction for possessing a firearm at a protest where the pleading failed to state that the offense occurred on public property. State v. Reavis, __ N.C. App. __, 882 S.E.2d 590 (2022). To be sure, each of these cases involves the failure to plead elements of the offense, which is distinguishable from the victim-naming requirements in Brawley and related cases. Nevertheless, each relies on the notion that defects in an indictment deprive the court of its power to adjudicate a case, even when the pleading is sufficient to pass constitutional muster. This post will discuss these cases and consider potential future developments.
So Your Indictment May Be Flawed: What Now?
A non-lawyer might be forgiven for being somewhat confused by the rules governing indictments. The basics are summarized easily enough: a trial court’s jurisdiction depends on a facially valid indictment; an indictment is facially valid so long as it sufficiently alleges all the essential elements of the offense; and the essential elements consist of what the State must prove in order to obtain a conviction. But these basics are so pocked with exceptions, so piled with caveats, that few cases are resolved by reference to them alone. Our appellate courts have decided a few cases in the last several months which illustrate this complexity. This post attempts to provide a brief recurrence to fundamental principles applicable to indictments and to throw a lifeline to prosecutors who discover a potential defect during a trial. My colleagues have blogged pretty frequently about indictment issues, most recently Shea Denning addressing a recent opinion here.
Prosecutors Beware: State v. Newborn Provides a Word of Caution for Felon In Possession Indictments
Author’s Note: The opinion discussed below was reversed by the North Carolina Supreme Court in State v. Newborn, 330PA21, ___ N.C. ___ (June 16, 2023). The North Carolina Supreme Court’s opinion is discussed here.
The first sentence of State v. Newborn, ___ N.C. App. ___, 2021-NCCOA-426 (Aug. 17, 2021) sums up the issue: “When the charge of possession of a firearm by a felon is brought in an indictment containing other related offenses, the indictment for that charge is rendered fatally defective and invalid, thereby depriving a trial court of jurisdiction over it.”
Even after I read it that straightforward statement, I questioned my understanding. This rule struck me as inconsistent with recent caselaw holding that the violation of statutory pleading rules for prior convictions does not deprive the trial court of jurisdiction. See State v. Brice, 370 N.C. 244 (2017). But (ipso facto) that is the rule for felon in possession indictments, which prosecutors ignore at the case’s peril.
Status and Authority of Off-Duty Officers
Jeff Welty blogged last week about State v. Capps, __ N.C. App. __, 2019 WL 2180435 (May 21, 2019). The central issue in that case was the state’s use of a misdemeanor statement of charges, but there was a minor detail in the facts that caught my eye because it raises an issue I’ve been asked about more than once.
What is the status and authority of a law enforcement officer when he or she is off-duty?
North Carolina Sticks with the Rule that Omitting an Element in an Indictment Deprives the Court of Jurisdiction – at Least for Now
Shortly before Christmas, the state supreme court decided a littering case captioned State v. Rankin, __ N.C. __, __ S.E.2d __, 2018 WL 6714931 (Dec. 21, 2018). The majority ruled that because the indictment “failed to . . . allege all . . . elements of the offense . . . the trial court had no jurisdiction to enter a conviction . . . against defendant.” The rule that the omission of an element is a jurisdictional defect is long-standing law in North Carolina, but many other jurisdictions, including the federal courts, have abandoned it. Chief Justice Martin, in dissent, argued that North Carolina should follow suit. This post summarizes the North Carolina rule, explains the controversy in Rankin, discusses why other jurisdictions have left the rule behind, and considers whether the General Assembly might address the issue.
Is the Statute of Limitations Jurisdictional or Waivable?
Last week, I blogged about the lack of a statute of limitations for felony offenses in North Carolina. There is, of course, a two-year statute of limitations for misdemeanors, a matter that has been the subject of a fair amount of recent litigation. A reader posed an excellent question at the end of that post: Is the statute of limitations a defense that may be waived or does a trial court lack jurisdiction over a time-barred offense?
May a Defendant Appeal an Infraction to Superior Court?
Suppose a defendant is found responsible in district court for one of the many infractions codified in Chapter 20. Take your pick: speeding, a seat belt violation, jaywalking, improper passing, or one of the many other non-criminal motor vehicle offenses. The defendant wishes to appeal that adjudication. May she appeal the case to superior court?
Surviving Your Next Sovereign Citizen
This scenario will sound familiar to many criminal attorneys: you’re in court, the DA calls the next case, and the judge asks John Q. Defendant how he pleads?
“Your Honor, I am not ‘JOHN Q. DEFENDANT,’ which is a fictional corporate entity. I am a natural living being, appearing pro per on behalf of John Q. Defendant, free citizen, for the limited purpose of challenging jurisdiction….” What follows next is a confusing series of questions to the judge about standing and injured parties, and quasi-legal arguments full of buzz words about the U.C.C., admiralty court, strawmen, right to travel, capital letters, red ink, fiduciaries, de facto government, accepted for value, etc. On and on and on it goes, for however long the court is willing to listen.
Yep, you’ve got a “sovereign citizen” on your hands.
Readers may have different opinions on the best way to handle these defendants in court (which I hope you will share in the comments), but I recommend taking the simplest approach of all: don’t play the game.
State v. Brice: Pleading Rules for Habitual Offenses Are Not Jurisdictional
The court of appeals last year vacated Sandra Brice’s conviction for habitual misdemeanor larceny for stealing five packs of steaks valued at $70 from a Food Lion in Hickory. The reason? The indictment alleged the steak theft and Brice’s four prior convictions for misdemeanor larceny in a single count. That violated a statutory rule requiring that prior convictions be alleged in a separate count, and, in the court of appeals’ view, deprived the superior court of jurisdiction to enter judgment against Brice for habitual misdemeanor larceny, a felony offense. Earlier this month, the North Carolina Supreme Court reversed the court of appeals and remanded the case for reinstatement of the trial court’s judgment. Read on to find out why.