An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 Unpublished opinion 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 
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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.
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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. § 15A1415, 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.
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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 
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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 thenbinding 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.
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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 
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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, 
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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.
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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 
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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).