No - NC Office of Indigent Defense Services



No. 108A02 TWENTY-FIRST DISTRICT

SUPREME COURT OF NORTH CAROLINA

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STATE OF NORTH CAROLINA )

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v. ) From Forsyth County

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BELVIN E. WAGNER )

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AMICUS CURIAE BRIEF

(North Carolina Academy of Trial Lawyers)

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Question Presented

DOES THE CRIME FOR WHICH THE DEFENDANT WAS SENTENCED AS AN HABITUAL FELON IN 00 CRS 22085 EXIST IN NORTH CAROLINA?

Statement of the Case and facts

Amicus adopts the Statement of the Case and the Statement of the Facts as set forth in the Defendant-Appellant’s New Brief.

Argument

THE DEFENDANT’S CONVICTION FOR FELONIOUS POSSESSION OF DRUG PARAPHERNALIA MUST BE VACATED BECAUSE THERE IS NO SUCH CRIME IN NORTH CAROLINA.

One of the defendant’s purported felony convictions in this case is a conviction for a crime which is not and cannot be a felony in North Carolina. The conviction in 00 CRS 22085 for felonious possession of drug paraphernalia, punished in this case as a Class C felony under the Habitual Felon Statute, must be vacated. The indictment in 00 CRS 22085 is invalid on its face to charge a felony because there is no crime of felonious possession of drug paraphernalia. This issue is properly before this Court as the facial invalidity of an indictment to charge an offense can be raised at any time. See State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000).

The indictment in 00 CRS 22085 alleges that the defendant feloniously “did knowingly possess with intent to use drug paraphernalia, to wit: crack pipe.” (R p. 13). N.C. Gen. Stat. §90-113.22 makes possession of drug paraphernalia a violation of law.

90-113.22. Possession of drug paraphernalia.

(a) It is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance which it would be unlawful to possess, or to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess.

(b) Violation of this section is a Class 1 misdemeanor.

Possession of drug paraphernalia is not a felony under this statute, and there is no enhancement provision in the statute raising is to a felony. In contrast, N.C. Gen. Stat. §90-113, which prohibits the manufacture or delivery of drug paraphernalia and punishes manufacture or delivery as Class 1 misdemeanor, does contain an enhancement provision.

90-113.23. Manufacture or delivery of drug paraphernalia.

(a) It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia knowing that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance which it would be unlawful to possess, or that it will be used to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess.

(b) Delivery, possession with intent to deliver, or manufacture with intent to deliver, of each separate and distinct item of drug paraphernalia is a separate offense.

(c) Violation of this section is a Class 1 misdemeanor. However, delivery of drug paraphernalia by a person over 18 years of age to someone under 18 years of age who is at least three years younger than the defendant shall be punishable as a Class I felony.

(emphasis added) This section shows that the legislature knew how to create an enhancement provision by which possession of drug paraphernalia could be elevated from a misdemeanor to a felony. That the legislature chose not to use such a provision, when it knew how to do so, evidences its intention that possession of drug paraphernalia not be a felony. See State v. Martin, 102 Wash. 2nd 300, 384 P.2d 1290 (1984); Myers v. Hawkins, 362 So.2d 926 (Fla. 1978).

Where statutory language is clear and definite, it is to be construed literally, even though reasonable minds might differ on the apparent policy decision underlying the statute. See Board of Commissioners v. Town of Henderson, 163 N.C. 114, 79 S.E.442 (1913). In the case of drug paraphernalia, the legislature clearly determined that in one aggravated circumstances, the delivery of drug paraphernalia would be raised to a felony, but that possession of drug paraphernalia would in all circumstances be a misdemeanor. Delivery of drug paraphernalia to a minor was neither alleged nor proven in this case.

The indictment in 00 CRS 22085 does allege, in addition to the allegation that the defendant possessed drug paraphernalia, that the defendant previously had been convicted of sale and delivery of marijuana, an offense under Chapter 90 of the General Statutes. Id. This latter allegation apparently was made pursuant to N.C. Gen. Stat. §90-95(e)(3), which is noted in the indictment as the statute that defendant allegedly violated. Id.

Section 90-95(e)(3), which is within Article 5 of Chapter 90, reads as follows:

If any person commits a Class 1 misdemeanor under this Article and if he has previously been convicted for one or more offenses under any law of North Carolina or any law of the United States or any other state, which offenses are punishable under any provision of this Article, he shall be punished as a Class I felon. The prior conviction used to raise the current offense to a Class I felony shall not be used to calculate the prior record level.

(emphasis added) “[Article 5 of Chapter 90] shall be known and may be cited as the “North Carolina Controlled Substances Act.” N.C. Gen. Stat. §90-86. Nowhere in Article 5 is drug paraphernalia defined, prohibited, or even mentioned.

Article 5B of Chapter 90 is a separate article; “[Article 5B] shall be known and may be cited as the “North Carolina Drug Paraphernalia Act.” N.C. Gen. Stat. §90-113.20. Article 5B defines three crimes with regard to drug paraphernalia, but none, of course, are contained within Article 5. The reference in G.S. §90-95(e)(3) to Class 1 misdemeanor offenses “under this Article” obviously means drug offenses under Article 5, not drug paraphernalia offenses under Article 5B.

In sum, the defendant was convicted of a felony and sentenced as a habitual felon in 00 CRS 22085 on the basis of an indictment which was invalid on its face and did not confer jurisdiction on the court to sentence the defendant for a felony offense, much less as an habitual felon. As the trial court was without jurisdiction to treat defendant as an habitual felon in 00 CRS 22085, the resulting judgment must be vacated.

Conclusion

For the foregoing reasons, Amicus respectfully contends that defendant’s conviction for felonious possession of drug paraphernalia must be vacated

Respectfully submitted this the 27th day of March, 2002.

Electronic Submission

M. Gordon Widenhouse, Jr.

Rudolph, Maher, Widenhouse & Fialko

312 W. Franklin Street

Chapel Hill, North Carolina 27516

(919) 967 4900

mgwidenhouse@

Counsel for

The North Carolina Academy of Trial Lawyers

Amicus Curiae

certificate of filing and service

I hereby certify that the original of this brief has been filed pursuant to Rule 26 by electronic means with the Clerk of the Supreme Court of North Carolina.

I hereby certify that copies of this brief were served upon counsel of record by placing the copies in the United States Mail, first-class postage prepaid, addressed to:

Joan M. Cunningham

Assistant Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602-0629

J. Clark Fischer

Attorney for Defendant-Appellant

601 N. Cherry Street, Suite 230

Winston-Salem, North Carolina 27101

This the 27th day of March, 2002.

Electronic Submission

M. Gordon Widenhouse, Jr.

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