IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-418

No. COA20-250

Filed 21 June 2022

Wake County, Nos. 15 CRS 217444, 18 CRS 001526

STATE OF NORTH CAROLINA

v.

NICODEMUS WRIGHT, Defendant.

Appeal by Defendant from judgment entered 18 September 2019 by Judge 

Michael A. Stone in Wake County Superior Court. Heard in the Court of Appeals 13 

April 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Robert C. 

Ennis, for the State.

Daniel J. Dolan for defendant-appellant.

MURPHY, Judge.

¶ 1 An indictment must sufficiently allege all essential elements, or the facts 

underlying all essential elements, of an offense to put a defendant on notice as to the 

offense being charged in order to grant the trial court jurisdiction to hear a felony 

case. However, an indictment need not follow hyper-technical rules to be valid. Here, 

the trial court properly recognized the validity of the indictment, which sufficiently

alleged the underlying facts essential for each element to apprise Defendant that he 
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was charged with a failure to notify the last registering sheriff of a change of address. 

¶ 2 Jury instructions are subject to plain error review when a defendant fails to 

preserve an alleged instructional error for appellate review, requiring a showing that 

the alleged error had a probable impact of the jury’s verdict as opposed to a possible 

impact. Here, the trial court did not plainly err in instructing the jury regarding the 

State’s burden of proof as it properly instructed that the State was required to prove 

all elements beyond a reasonable doubt. Additionally, the trial court did not plainly 

err in instructing the jury on the elements of failure to notify the last registering 

sheriff of a change of address, even assuming it erred by not indicating that there 

must be a willful failure to notify the sheriff’s office of a change of address, because 

such an error would not have had a probable impact on the jury’s verdict due to the 

clear, accurate statement of the mens rea requirement immediately prior to the 

assumed error.

¶ 3 A motion to dismiss for insufficiency of the evidence should be denied if, when 

viewing the evidence in the light most favorable to the State, there is substantial 

evidence of each essential element of the offense. Here, there was substantial

evidence of each essential element of Defendant’s failure to notify the last registering 

sheriff of a change of address and his attaining habitual felon status. 

¶ 4 In non-capital cases, defendants have a statutory right to allocution when they 

assert that right prior to sentencing. Here, because the trial court denied Defendant 
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his right to allocution after he clearly and repeatedly articulated his desire to exercise 

this right, we vacate the trial court’s sentence and remand for a new sentencing 

hearing.

¶ 5 Finally, a petition for writ of certiorari is a discretionary writ that should only 

be allowed when the petition shows merit in the underlying issue. There can be no 

merit in an appeal regarding an underlying issue when the record does not show the 

order from which a defendant requests review was actually entered. An order is not 

considered entered where it has not been filed with the county clerk of court. Here, 

the civil judgment order for attorney fees for which Defendant seeks our review does 

not reflect that it was filed with the county clerk of court, and therefore there is no 

merit to the petition for writ of certiorari. We deny Defendant’s petition for writ of 

certiorari and dismiss the portion of his appeal related to the civil judgment order for 

attorney fees.

BACKGROUND

¶ 6 Defendant Nicodemus Wright was convicted of second-degree rape in 2006. In 

November 2011, following his release from prison, he was required to enroll in the

sex offender and public protection registry and required to inform his local sheriff’s 

office of his address in accordance with N.C.G.S. § 14-208.7. In early July 2015, 

Defendant’s registered address was a men’s shelter in Raleigh; however, on 9 July 

2015, Defendant was taken to a month-long drug treatment program in Goldsboro by 
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his post-release supervisor. Defendant left this program after two days and did not 

return to the men’s shelter. From 11 July 2015, when Defendant left the drug 

treatment program, until his eventual arrest on 4 August 2015, Defendant did not 

update his registered address. As a result, Defendant’s registered address remained 

listed as the men’s shelter in Raleigh, but he did not stay there at any point after he 

left the program.

¶ 7 Defendant’s former girlfriend, Linda Burt, testified that Defendant began 

staying at her home two days after his departure from the program, kept his clothes 

and books at her home during this time period, and was staying with her at the time 

of his arrest. 

¶ 8 Following the State’s evidence, Defendant made motions to dismiss on the 

basis of the indictment being fatally defective and for insufficiency of the evidence.

Specifically, Defendant alleged that the indictment failed to state explicitly that he 

was required to register as a sex offender and to notify the sheriff’s office of a move 

within three days. The indictment read: 

THE JURORS FOR THE STATE UPON THEIR OATH 

PRESENT that on or about the [4 August] 2015, in Wake 

County, the defendant named above unlawfully, willfully 

and feloniously did violate the North Carolina Sex 

Offender and Public Protection Registration Program, by 

having been convicted in Wake County Superior Court on 

18th day of September 2006 of Second[-]Degree Rape, a 

reportable offense and failing to notify the Sheriff of Wake 

County of a change of address as required by [N.C.G.S.] § 
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14-208.9. This act was done in violation of [N.C.G.S.] § 14-

208.11(A)(2)[.] 

The trial court denied the motions.

¶ 9 Defendant then presented evidence. Defendant testified that he understood 

his obligation to notify his local sheriff’s office of any address change and he had 

consistently updated his address. Defendant testified on cross-examination that, in 

2011, he had acknowledged his understanding of his obligations regarding the 

registry in writing. Additionally, Defendant testified that the Goldsboro program had 

registered him in Goldsboro and that he never lived with his girlfriend, instead 

claiming he stayed in Goldsboro until around 2 August 2015.

¶ 10 Defendant also called his post-release officer to testify. Defendant’s postrelease officer confirmed that a program officer had indicated that the program was 

going to notify the Wayne County Sheriff’s Office of Defendant’s change of address, 

but he was unaware if this actually occurred. Defendant renewed his motions to 

dismiss at the conclusion of all evidence, and the trial court again denied the motions. 

The trial court instructed the jury, and the jury found Defendant guilty of violating 

the sex offender and public protection registry.

¶ 11 Defendant was then tried for having attained habitual felon status. Two prior 

convictions for attempted robbery and attempted criminal sale of a controlled 

substance in the fifth degree from New York were used as the first two underlying 
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felonies, with the third being his second-degree rape conviction in North Carolina. At 

the conclusion of the State’s evidence, Defendant made a motion to dismiss, which 

the trial court denied. Defendant was found guilty of attaining habitual felon status, 

and the trial court proceeded to sentencing. At sentencing, the following exchange 

occurred:

THE COURT: All right. Stand up, [Defendant]. Anything 

you want to say?

THE DEFENDANT: Yes. I need – to say what I want to 

say, I need to get my paperwork.

THE COURT: Well, we’re not going to do that. Anything 

you want to say to me right now before you’re sentenced?

THE DEFENDANT: Yes. I asked to get it before I even 

came out here, and they rushed me and said, “Come on 

now.” Please. I mean, this is my chance to speak to you.

THE COURT: Anything you want to say to me before you’re 

sentenced?

THE DEFENDANT: Yes, I do. I have it right there in –

THE COURT: All right. Your papers aren’t relevant right 

now. All right. Moving to sentencing, Madam Clerk, it is 

a class C on the habitual felon status, record level two. The 

sentence will be in the presumptive range. He’s sentenced 

to a minimum term of 83 months, maximum terms of 112 

months active time. He’s to receive credit for all pretrial 

confinement. All right. Good luck to you, [Defendant] . . . 

.

MS. STROMBOTNE: Sorry, Judge. I didn’t mean to 

interrupt. I would like to enter notice of appeal in open 

court.
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THE COURT: All right. Enter notice of appeal.

THE DEFENDANT: I don’t just – I don’t get to say 

anything now to you, Judge?

THE COURT: No. 

¶ 12 On 18 September 2019, the trial court imposed an active sentence of 83 to 112 

months. The criminal judgment provided for $0.00 in attorney fees. On 25 October 

2019, a Non-Capital Criminal Case Trial Level Fee Application Order for Payment 

Judgment Against Indigent was signed by the trial court, purporting to approve a 

civil judgment for attorney fees in the amount of $3,562.50.

ANALYSIS

¶ 13 On appeal, Defendant argues (A) “[t]he judgment must be vacated because the 

indictment charging a violation of the sex offender and public protection registry fails 

to allege three essential elements, depriving the trial court of jurisdiction and 

violating [Defendant’s] right to due process”; (B) “[Defendant] must receive a new 

trial because the trial court plainly erred by [(1)] failing to instruct the jury as to an 

element of an offense and [(2)] by misstating an element of an offense”; (C) “[t]he trial 

court erroneously denied [Defendant’s] motion to dismiss the charge of a violation of 

the sex offender and public protection registry and the charge of attaining habitual 

felon status because there was not substantial evidence of either charge”; (D) “[t]his 

case must be remanded for a new sentencing hearing because the trial court deprived 

[Defendant] of his right to allocution”; and (E) “[t]he trial court erred by ordering 
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[Defendant] to pay attorney[] fees and the attorney appointment fee without affording 

him notice and an opportunity to be heard.”1 

A. Sufficiency of the Indictment for Failure to Notify the Last Registering 

Sheriff of a Change of Address

¶ 14 Defendant contends the indictment fails to sufficiently allege any of the three 

essential elements of failure to notify the last registering sheriff of a change of 

address and the trial court therefore lacked jurisdiction to enter the judgment. The 

State responds that the Defendant is employing a hyper-technical reading of the 

indictment and that a plain reading reveals the essential elements are laid out, even 

if not in the most explicit terms.

It is well settled that a valid bill of indictment is essential 

to the jurisdiction of the trial court to try an accused for a 

felony. Lack of jurisdiction in the trial court due to a fatally 

defective indictment requires the appellate court to arrest 

judgment or vacate any order entered without authority. 

The issue of subject matter jurisdiction may be raised at 

any time, even for the first time on appeal. The subject 

matter jurisdiction of the trial court is a question of law, 

which this Court reviews de novo on appeal. 

State v. Barnett, 223 N.C. App. 65, 68, 733 S.E.2d 95, 97-98 (2012) (marks and 

citations omitted).

¶ 15 “The North Carolina Constitution guarantees that, ‘in all criminal 

 

1 Defendant has also filed a petition for writ of certiorari regarding this issue, which 

we address in our discussion of this issue.
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prosecutions, every person charged with [a] crime has the right to be informed of the 

accusation.’” State v. Williams, 368 N.C. 620, 623, 781 S.E.2d 268, 270 (2016) 

(quoting N.C. Const. art. I, § 23). For felonies, this often occurs by indictments, which 

must contain

[a] plain and concise factual statement in each count 

which, without allegations of an evidentiary nature, 

asserts facts supporting every element of a criminal offense 

and the defendant’s commission thereof with sufficient 

precision clearly to apprise the defendant or defendants of 

the conduct which is the subject of the accusation.

N.C.G.S. § 15A-924(a)(5) (2021). Our Supreme Court has interpreted this statute, 

holding “that it is not the function of an indictment to bind the hands of the State 

with technical rules of pleading, and that we are no longer bound by the ancient strict 

pleading requirements of the common law.” Williams, 368 N.C. at 623, 781 S.E.2d at 

270-71. “Instead, contemporary criminal pleading requirements have been designed 

to remove from our law unnecessary technicalities which tend to obstruct justice.” Id. 

at 623, 781 S.E.2d at 271 (marks omitted). Our statutes reflect this, providing:

Every criminal proceeding by warrant, indictment, 

information, or impeachment is sufficient in form for all 

intents and purposes if it express[es] the charge against 

the defendant in a plain, intelligible, and explicit manner; 

and the same shall not be quashed, nor the judgment 

thereon stayed, by reason of any informality or refinement, 

if in the bill or proceeding, sufficient matter appears to 

enable the court to proceed to judgment.

N.C.G.S. § 15-153 (2021). 
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¶ 16 Our caselaw has elaborated on what indictments must contain based on 

contemporary standards:

In order to be valid and thus confer jurisdiction upon the 

trial court, an indictment charging a statutory offense 

must allege all of the essential elements of the offense. The 

indictment is sufficient if it charges the offense in a plain, 

intelligible and explicit manner. Indictments need only 

allege the ultimate facts constituting each element of the 

criminal offense and an indictment couched in the 

language of the statute is generally sufficient to charge the 

statutory offense. While an indictment should give a 

defendant sufficient notice of the charges against him, it 

should not be subjected to hyper technical scrutiny with 

respect to form. The general rule in this State and 

elsewhere is that an indictment for a statutory offense is 

sufficient, if the offense is charged in the words of the 

statute, either literally or substantially, or in equivalent 

words.

Barnett, 223 N.C. App. at 68-69, 733 S.E.2d at 98 (marks and citations omitted).

¶ 17 Here, Defendant challenges his indictment for failure to notify the last 

registering sheriff of his change of address. This offense is described in N.C.G.S. § 

14-208.11(a)(2), which states, in relevant part, “[a] person required by this Article to 

register who willfully does . . . the following is guilty of a Class F felony: . . . Fails to 

notify the last registering sheriff of a change of address as required by this Article.” 

N.C.G.S. § 14-208.11(a)(2) (2021). The obligation to notify the last registering sheriff 

of a change of address appears in N.C.G.S. § 14-208.9(a), which states, in relevant 

part, “[i]f a person required to register changes address, the person shall report in 
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person and provide written notice of the new address not later than the third business 

day after the change to the sheriff of the county with whom the person had last 

registered.” N.C.G.S. § 14-208.9(a) (2021). 

¶ 18 Based on these statutes, we have previously held that the three essential 

elements of the failure to notify the last registering sheriff of a change of address

under N.C.G.S. § 14-208.11(a)(2) are “(1) the defendant is a person required to 

register; (2) the defendant changes his or her address; and (3) the defendant fails to 

notify the last registering sheriff of the change of address within three business days 

of the change.” Barnett, 223 N.C. App. at 69, 733 S.E.2d at 98.

¶ 19 Here, the indictment reads:

THE JURORS FOR THE STATE UPON THEIR OATH 

PRESENT that on or about the [4 August] 2015, in Wake 

County, the defendant named above unlawfully, willfully 

and feloniously did violate the North Carolina Sex 

Offender and Public Protection Registration Program, by 

having been convicted in Wake County Superior Court on

18th day of September 2006 of Second[-]Degree Rape, a 

reportable offense and failing to notify the Sheriff of Wake 

County of a change of address as required by [N.C.G.S.] § 

14-208.9. This act was done in violation of [N.C.G.S.] § 14-

208.11(A)(2)[.] 

We analyze each of the essential elements separately below.

1. Required to Register

¶ 20 Defendant first contends that, like in Barnett, the indictment does not 

explicitly state Defendant was required to register. The State responds that, unlike 
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the indictment in Barnett, the indictment here instead provides the “facts indicating 

why it would be a crime for Defendant to ‘fail to provide written notice or notify the . 

. . Sheriff's Department [sic] within three business days after a change of address.’”

Id. at 69, 733 S.E.2d at 98-99. We hold the first element is sufficiently alleged here. 

¶ 21 In Barnett, we assessed the validity of an indictment that read:

The jurors for the State upon their oath present that on or 

about 8 June 2010 and in Gaston County the defendant 

named above unlawfully, willfully and feloniously did fail 

to provide written notice or notify the Gaston County 

Sheriff's Department [sic] within three business days after 

a change of address as required by the North Carolina 

General Statute 14–208.9.

Id. at 69, 733 S.E.2d at 98. We stated: 

While the indictment substantially tracks the statutory 

language set forth in [N.C.G.S.] § 14–208.9(a) with respect 

to the second and third elements of the offense, it makes no 

reference to the first essential element of the offense, i.e., 

that Defendant be “a person required to register.” The 

indictment does not allege that Defendant is a registered sex 

offender, nor any facts indicating why it would be a crime 

for Defendant to “fail to provide written notice or notify the

Gaston County Sheriff's Department [sic] within three 

business days after a change of address.” Moreover, the 

State’s contention that the indictment language “as 

required by the North Carolina General Statute 14–208.9” 

was adequate to “put Defendant on notice of the charge[] 

and [] inform[] him with reasonable certainty the nature of 

the crime charged” is unavailing, as “it is well established 

that ‘“[m]erely charging in general terms a breach of [a] 

statute and referring to it in the indictment is not 

sufficient”’ to cure the failure to charge ‘the essentials of 

the offense’ in a plain, intelligible, and explicit manner.”
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Id. at 69-70, 733 S.E.2d at 98-99 (emphasis added). We ultimately concluded that the 

indictment was insufficient to confer subject matter jurisdiction on the trial court and 

vacated the defendant’s conviction without prejudice to re-prosecution. Id. at 72, 733 

S.E.2d at 100.

¶ 22 Although, like in Barnett, the indictment here does not explicitly state that 

Defendant was required to register, the indictment instead provides the factual basis 

for the requirement that he register—his conviction of the reportable offense of 

second-degree rape—and therefore is distinguishable from Barnett and complies with

N.C.G.S. § 15A-924(a)(5) and N.C.G.S. § 15-153. See State v. Rambert, 341 N.C. 173, 

176, 459 S.E.2d 510, 512 (1995) (“[I]ndictments need only allege the ultimate facts 

constituting each element of the criminal offense.”).

¶ 23 The indictment alleges that Defendant was previously convicted of seconddegree rape in 2006 and pleads facts that constitute the first essential element of

failure to notify the last registering sheriff of a change of address—that Defendant 

was required to register. This satisfies the requirements of our statutes, caselaw, 

and Constitution.

2. Change of Address

¶ 24 Defendant next contends the indictment must have specifically alleged that 

Defendant changed his address. The State responds that the indictment necessarily 

indicates that a change in address occurred. We hold that the indictment here 
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sufficiently alleges the second essential element of failing to register.

¶ 25 In State v. Reynolds, we upheld an indictment that did not state the defendant 

changed his address and instead simply stated:

[A]s a person required by Article 27A of Chapter 14 of the 

General Statutes to register as a sex offender, fail to notify 

the last registering Sheriff, Graham Atkinson, of an address 

change by failing to appear in person and provide written 

notice of his address after his release from incarceration[.]

State v. Reynolds, 253 N.C. App. 359, 367-68, 800 S.E.2d 702, 708 (2017) (emphasis 

added), disc. rev. denied, 370 N.C. 693, 811 S.E.2d 159 (2018). In Reynolds, we upheld 

the indictment as it “substantially track[ed] the language of . . . the statute under 

which [the defendant] was charged, thereby providing defendant adequate notice.” 

Id. (quoting Williams, 368 N.C. at 626, 781 S.E.2d at 273). 

¶ 26 Here, like in Reynolds, the indictment substantially tracks the language of 

N.C.G.S. § 14-208.11(a)(2) by stating “the defendant named above unlawfully, 

willfully and feloniously did violate the North Carolina Sex Offender and Public 

Protection Registration Program, by . . . failing to notify the Sheriff of Wake County 

of a change of address as required by [N.C.G.S.] § 14-208.9.” (Emphasis added).

N.C.G.S. § 14-208.11(a)(2) states “[a] person required by this Article to register who 

willfully does any of the following is guilty of a Class F felony: . . . Fails to notify the 

last registering sheriff of a change of address as required by this Article.” N.C.G.S. § 

14-208.11(a)(2) (2021). The indictment sufficiently alleges the second essential 
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element of failure to notify the last registering sheriff of a change of address—that 

Defendant changed his address—by mirroring the statutory language.

3. Update Address within Three Days

¶ 27 Finally, Defendant contends the indictment fails to indicate that the change in 

address occurred within three business days. He argues this, in part, because the 

change in address is not sufficiently indicted; however, given our holding that the 

second element is sufficiently alleged, we need not address this portion of Defendant’s

argument here. 

¶ 28 To the extent that Defendant challenges the lack of the inclusion of “three 

business days” in the indictment, we have previously addressed this issue in State v. 

McLamb, 243 N.C. App. 486, 777 S.E.2d 150 (2015). In McLamb, we held:

[T]he indictment in this case, which alleged “[the] 

defendant . . . did, as a person required by Article 27A of 

Chapter 14 of the General Statutes to register, fail[] to 

notify the last registering sheriff of a change of address in 

that he moved from 1134 Renfrow Road in Clinton, North 

Carolina, on or about [18 December] 2012 to 206 Smith Key 

Lane in Clinton, North Carolina without notifying the 

Sampson County Sheriff[,]” was couched in the language of 

the statute and sufficiently alleged the third element of the 

offense. To hold otherwise would be to subject the 

indictment to hyper technical scrutiny where in this case, 

over a period of months, [the] defendant failed to give any 

notice to the sheriff of his change of address.

Id. at 490, 777 S.E.2d at 152-53. Although Defendant’s failure to notify the Wake 

County Sheriff’s Office here did not occur over a period of months, McLamb’s holding 
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is equally applicable here as Defendant did not update his address for 24 days at the 

least, which far outlasts the statutory timeframe of three business days. Like the 

argument in McLamb, Defendant’s hyper-technical argument fails. Defendant’s 

indictment sufficiently alleged the third essential element of failure to notify the last 

registering sheriff of a change of address—that Defendant failed to notify the Wake 

County Sheriff’s Office of his change of address within three business days of the 

change.

¶ 29 As a result, the indictment sufficiently alleged all three essential elements, 

and the trial court had jurisdiction over the case. While the indictment could have 

been more explicit as a best practice, the indictment here was sufficient to provide 

Defendant notice of the charge against him, and we will not subject it to hypertechnical scrutiny. See Barnett, 223 N.C. App. at 68, 733 S.E.2d at 98 (marks and 

citations omitted) (“While an indictment should give a defendant sufficient notice of 

the charges against him, it should not be subjected to hyper technical scrutiny with 

respect to form.”).

B. Plain Error in Jury Instruction

¶ 30 Defendant contends the trial court committed plain error in improperly 

instructing the jury on the elements of failing to update an address when,

[e]arly in the instruction for the offense of violating the sex 

offender and public protection registry, the trial court did 

not instruct the jury that the prosecution had to prove 
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beyond a reasonable doubt that [Defendant] changed his 

address.

Defendant also contends the trial court erroneously instructed that Defendant must 

have willfully changed his address rather than willfully failed to report his change of 

address, when

[i]n the final mandate, the trial court instructed the jury 

that if it found beyond a reasonable doubt that “the 

defendant willfully changed the defendant’s address and 

failed to provide written notice of the defendant’s new 

address in person at the Sheriff’s Office no later than three 

business days after the change of address to the Sheriff’s 

Office in the county with whom the defendant had last 

registered, it would be [their] duty to return a verdict of 

guilty.”

¶ 31 “Whether a jury instruction correctly explains the law is a question of law, 

reviewable by this Court de novo.” State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d 

22, 29, disc. rev. denied, 364 N.C. 327, 700 S.E.2d 926 (2010). “This Court reviews 

jury instructions contextually and in its entirety.” See State v. Glynn, 178 N.C. App. 

689, 693, 632 S.E.2d 551, 554 (marks omitted), appeal dismissed, 360 N.C. 651, 637 

S.E.2d 180 (2006). “When reviewed as a whole, isolated portions of a charge will not 

be held prejudicial when the charge as a whole is correct. The fact that isolated 

expressions, standing alone, might be considered erroneous will afford no ground for 

a reversal.” Id. (marks omitted). Generally, “an error in jury instructions is 

prejudicial and requires a new trial only if ‘there is a reasonable possibility that, had 
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the error in question not been committed, a different result would have been reached 

at the trial out of which the appeal arises.’” State v. Castaneda, 196 N.C. App. 109, 

116, 674 S.E.2d 707, 712 (2009) (quoting N.C.G.S. § 15A-1443(a) (2007)). However, 

we employ a more demanding standard of prejudice when we review an unpreserved 

issue for plain error:

[T]he North Carolina plain error standard of review applies 

only when the alleged error is unpreserved, and it requires 

the defendant to bear the heavier burden of showing that 

the error rises to the level of plain error. To have an alleged 

error reviewed under the plain error standard, the 

defendant must specifically and distinctly contend that the 

alleged error constitutes plain error. Furthermore, plain 

error review in North Carolina is normally limited to 

instructional and evidentiary error.

State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (marks and citations 

omitted); see also N.C. R. App. P. 10(a)(4) (2022). Plain error arises when the error is 

“‘so basic, so prejudicial, so lacking in its elements that justice cannot have been 

done[.]’” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United 

States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. 

Ed. 2d. 513 (1982)). “Under the plain error rule, [a] defendant must convince this 

Court not only that there was error, but that absent the error, the jury probably would 

have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 

697 (1993). 

1. Burden of Proof
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¶ 32 Here, the first error alleged by Defendant—that the trial court erred in failing 

to instruct the jury that the prosecution had to prove that Defendant changed his 

address beyond a reasonable doubt—is undermined by the transcript. The 

instructional language that Defendant refers to is:

[D]efendant has been charged with willfully failing to 

comply with the Sex Offender Registration law. For you to 

find [] [D]efendant guilty of this offense, the State must 

prove three things beyond a reasonable doubt. First, that [] 

[D]efendant was a resident of North Carolina. Second, that 

[] [D]efendant had previously been convicted of a 

reportable offense for which [] [D]efendant must register. 

If you find beyond a reasonable doubt that on [18 

September 2006], in Wake County Superior Court, [] 

[D]efendant was convicted of second-degree rape, then this 

would constitute a reportable offense for which [] 

[D]efendant must register. And, third, [] [D]efendant 

willfully failed to provide written notice of a change of 

address in person at the Sheriff's Office no later than three 

business days after the change of address to the Sheriff's 

Office in the county with whom the defendant had last 

registered.

(Emphasis added). 

¶ 33 As an initial matter, the instruction provided indicates that all of the elements 

listed must be proven beyond a reasonable doubt. Additionally, the paragraphs 

before and after the instruction make abundantly clear that the elements must be 

proven beyond a reasonable doubt:

[D]efendant has entered a plea of not guilty. The fact that 

[] [D]efendant has been indicted and charged is no evidence 

of guilt. Under our system of justice, when a defendant 
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pleads not guilty, the defendant is not required to prove the 

defendant's innocence. [] [D]efendant is presumed to be 

innocent. The State must prove to you that [] [D]efendant 

is guilty beyond a reasonable doubt. A reasonable doubt is 

a doubt based on reason and common sense, arising out of 

some or all of the evidence that has been presented, or lack 

or insufficiency of the evidence, as the case may be. Proof 

beyond a reasonable doubt is proof that fully satisfies or 

entirely convinces you of [D]efendant’s guilt. 

. . . .

If you find from the evidence beyond a reasonable doubt

that on or about the alleged date, [] [D]efendant was a 

resident of North Carolina, that [] [D]efendant had 

previously been convicted of a reportable offense for which 

[] [D]efendant must register, and that [] [D]efendant

willfully changed [] [D]efendant’s address and failed to 

provide written notice of [] [D]efendant’s new address in 

person at the Sheriff's Office no later than three business 

days after the change of address to the Sheriff's Office in 

the county with whom [] [D]efendant had last registered, it 

would be your duty to return a verdict of guilty. If you do 

not so find or have a reasonable doubt as to one or more of 

these things, it would be your duty to return a verdict of 

not guilty. 

(Emphases added). In light of the explicit and repeated instructions that the jury 

must be convinced beyond a reasonable doubt, we find no error, much less plain error, 

under Defendant’s first argument regarding jury instructions. See, e.g., Glynn, 178 

N.C. App. at 694, 632 S.E.2d at 555 (“Taken as a whole, the trial court’s clarifying 

instructions properly set out the elements of the crime and did not lessen the State’s 

burden of proof. [The] [d]efendant’s assignment of error is overruled.”).

2. Mens Rea
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Opinion of the Court

¶ 34 Defendant’s second plain error argument—that the trial court erroneously 

instructed that Defendant must have willfully changed his address rather than 

willfully failed to report his change of address—is based on the following instruction2:

If you find from the evidence beyond a reasonable doubt 

that on or about the alleged date, [] [D]efendant was a 

resident of North Carolina, that [] [D]efendant had 

previously been convicted of a reportable offense for which 

[] [D]efendant must register, and [] [D]efendant willfully 

changed [] [D]efendant’s address and failed to provide 

written notice of [] [D]efendant’s new address in person at 

the Sheriff’s Office no later than three business days after 

the change of address to the Sheriff’s Office in the county 

with whom [] [D]efendant had last registered, it would be 

[your] duty to return a verdict of guilty. 

(Emphasis added). Defendant contends:

The final mandate erroneously instructed the jury that [it] 

must find that [Defendant] willfully changed his address, 

not that he willfully failed to report his change of address. 

There is a significant difference between willfully changing 

an address and failing to report the change, as opposed to 

changing an address and willfully failing to report the 

change. The trial court’s instruction misstated the mens 

rea requirement that the [General Assembly] has imposed 

on the offense. The erroneous instructions were confusing 

and they lowered the State’s burden of proof.

 

2 We note that this portion of the jury instruction verbatim tracks the pattern jury 

instruction for failure to notify the last registering sheriff of a change of address. See 

N.C.P.I.—Crim. 207.75 (2021). Although pattern jury instructions “have neither the force 

nor the effect of law, [our Supreme Court has] often approved of jury instructions that are 

consistent with the pattern instructions.” State v. Walston, 367 N.C. 721, 731, 766 S.E.2d 

312, 318-19 (2014) (marks and citations omitted).
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Opinion of the Court

¶ 35 If the jury interpreted the instruction in the manner suggested by Defendant,3

assuming this was an error, such an erroneous instruction did not constitute plain 

error because it was not sufficiently prejudicial. The immediately preceding portion 

of the jury instructions provided:

[D]efendant has been charged with willfully failing to 

comply with the Sex Offender Registration law. For you to 

find [] [D]efendant guilty of this offense, the State must 

prove three things beyond a reasonable doubt. First, that 

[] [D]efendant was a resident of North Carolina. Second, 

that [] [D]efendant had previously been convicted of a 

reportable offense for which [] [D]efendant must register. 

If you find beyond a reasonable doubt that on [18 

September 2006], in Wake County Superior Court, [] 

[D]efendant was convicted of second-degree rape, then this 

would constitute a reportable offense for which the 

defendant must register. And, third, [] [D]efendant 

willfully failed to provide written notice of a change of 

address in person at the Sheriff’s Office no later than three 

business days after the change of address to the Sheriff’s 

Office in the county with whom [] [D]efendant had last 

registered. 

(Emphasis added). Considering this prior instruction, the jury was informed that the 

Defendant must have willfully failed to provide written notice of the change of 

 

3 We believe that another logical interpretation of this instruction would be for 

“willfully” to modify both the change of address and failure to provide written notice of the 

new address. If this were how the jury interpreted this language, there would be no 

prejudicial error as such an interpretation would increase the showing required by the State 

to attain a conviction. See State v. Farrar, 361 N.C. 675, 679, 651 S.E.2d 865, 867 (2007) 

(“[T]he trial court’s charge to the jury in this case [benefited] [the] defendant, because the 

instructions required the State to prove more elements than those alleged in the indictment. 

Therefore, there was no prejudicial error in the instructions.”).
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Opinion of the Court

address. See, e.g., State v. Harris, 222 N.C. App. 585, 590, 730 S.E.2d 834, 838 (“Both 

instructions reiterated multiple times that the State must prove that [the] defendant

was the perpetrator of each of the crimes. Given in connection with the entire jury 

instruction, the trial court’s jury instruction substantively included an instruction 

regarding identity. [The] [d]efendants cannot show that the trial court’s failure to 

give a separate instruction on identity beyond that included in the armed robbery 

instruction caused the jury to reach a verdict convicting [the] defendants that it 

probably would not have reached had a separate instruction been given.”), disc. rev. 

denied sub nom, State v. Whitaker, 366 N.C. 413, 736 S.E.2d 175 (2012), cert. denied, 

569 U.S. 952, 185 L. Ed. 2d 876 (2013). Additionally, we “presume[] that jurors follow 

the trial court’s instructions.” State v. Steen, 352 N.C. 227, 249, 536 S.E.2d 1, 14 

(2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001). Thus, we presume the 

jury interpreted the allegedly unclear instruction in conjunction with the instruction 

clearly indicating that Defendant must have willfully failed to provide written notice. 

When these two portions are read together, the jury instructions required the jury to 

find a willful failure to provide written notice of a change in address. Even assuming 

this instruction was erroneous, it was not prejudicial as it was not probable that any 

lack of clarity as to what “willfully” modified impacted this jury’s verdict. Instead, it 

was resolved by the prior jury instructions. 

¶ 36 The trial court did not commit plain error when instructing the jury.
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Opinion of the Court

C. Motion to Dismiss for Insufficient Evidence

¶ 37 Defendant contends the trial court also improperly denied his motion to 

dismiss the charge of failure to notify the last registering sheriff of a change of 

address because there was insufficient evidence that Defendant willfully failed to 

notify the Wake County Sheriff’s Office of the change in address. Defendant also 

argues the trial court erred as there was insufficient evidence that Defendant 

committed two of the underlying felonies used to establish that he attained habitual 

felon status. 

¶ 38 “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “‘Upon [a] defendant’s 

motion for dismissal, the question for the Court is whether there is substantial 

evidence (1) of each essential element of the offense charged, or of a lesser offense 

included therein, and (2) of [the] defendant’s being the perpetrator of such offense. If 

so, the motion is properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 

451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. 

denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” 

State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its 

determination, the trial court must consider all evidence admitted, whether 

competent or incompetent, in the light most favorable to the State, giving the State 
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Opinion of the Court

the benefit of every reasonable inference and resolving any contradictions in its 

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 

U.S. 1135, 132 L. Ed. 2d 818 (1995).

Circumstantial evidence may withstand a motion to 

dismiss and support a conviction even when the evidence 

does not rule out every hypothesis of innocence. If the 

evidence presented is circumstantial, the court must

consider whether a reasonable inference of [the] 

defendant’s guilt may be drawn from the circumstances. 

Once the court decides that a reasonable inference of [the] 

defendant’s guilt may be drawn from the circumstances, 

then it is for the jury to decide whether the facts, taken 

singly or in combination, satisfy [it] beyond a reasonable 

doubt that the defendant is actually guilty. 

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (marks and citation omitted). 

1. Sufficient Evidence of Defendant’s Failure to Notify the Last Registering 

Sheriff of a Change of Address

¶ 39 Defendant argues the evidence of his willful failure to notify the Wake County 

Sheriff's Office of his change of address was insufficient because he was involuntarily 

moved to another county for his drug treatment and had previously willingly 

complied with the registration requirements. However, the evidence shows, at a 

minimum, that Defendant willfully failed to update his address following his 

departure from the drug treatment program within the time provided by the statute.

¶ 40 We have held:

‘‘Willful” as used in criminal statutes means the wrongful 
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Opinion of the Court

doing of an act without justification or excuse, or the 

commission of an act purposely and deliberately in 

violation of law.

The word wil[l]ful, used in a statute creating a criminal 

offense, means something more than an intention to do a 

thing. It implies the doing [of] the act purposely and 

deliberately, indicating a purpose to do it without 

authority—careless whether he has the right or not—in 

violation of law, and it is this which makes the criminal 

intent without which one cannot be brought within the 

meaning of a criminal statute.

State v. Moore, 240 N.C. App. 465, 478, 770 S.E.2d 131, 141 (citation omitted), disc. 

rev. denied, 368 N.C. 353, 776 S.E.2d 854 (2015).

¶ 41 The evidence, in the light most favorable to the State, shows that Defendant 

was aware of his obligation to update his address,

4 and was capable of updating his 

address, but did not. In the light most favorable to the State, the evidence indicates 

that Defendant left the treatment program in Wayne County on 11 July 2019. 

Defendant was not found at his former address at the men’s shelter, and the shelter 

records reflect that he did not stay there from 11 July 2019 until his arrest on 4 

August 2019. Instead, based on the testimony of Defendant’s then-girlfriend, it 

appears Defendant stayed at her home in Wake County starting on 13 July 2019 until 

the time of his arrest. As a whole, the evidence, when viewed in the light most 

 

4 This is supported by Defendant’s testimony acknowledging his knowledge of this 

obligation, his signature on forms indicating his obligations to register, and his past conduct

in updating his address when he has moved.
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Opinion of the Court

favorable to the State, makes clear that Defendant did not update the Wake County

Sheriff’s Office of his change of address from the men’s shelter within three business 

days of his change of address.5 Furthermore, when viewed in the light most favorable 

to the State, the evidence shows Defendant understood his obligation to notify his

last registered sheriff’s office when he moved. Based on these showings, we conclude 

that Defendant’s failure to notify the Wake County Sheriff’s Office of his change of 

address was done “purposely and deliberately, indicating a purpose to do it without

authority—careless whether he has the right or not—in violation of law,” and was 

thus willful. Id. Accordingly, the trial court did not err.

2. Sufficient Evidence of the Felonies Underlying Defendant Having 

Attained Habitual Felon Status

¶ 42 In terms of the sufficiency of the underlying convictions for Defendant having 

attained habitual felon status, Defendant argues there was no evidence indicating 

the date that the first and second prior felonies were committed. Defendant contends 

this is problematic because it thwarts efforts to determine if there was an overlap 

between when the felonies occurred or if Defendant was of age. See N.C.G.S. § 14-

7.1(c) (2021) (“For the purposes of this Article, felonies committed before a person 

attains the age of 18 years shall not constitute more than one felony. The commission 

 

5 We note there the relevant time period here is from 13 July 2019 until 4 August 

2019.
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Opinion of the Court

of a second felony shall not fall within the purview of this Article unless it is 

committed after the conviction of or plea of guilty to the first felony.”). The parties 

dispute whether our caselaw requires this evidence to survive a motion to dismiss. 

However, assuming—without deciding—the evidence is required, there was evidence,

when viewed in the light most favorable to the State, that reflects the date the first 

and second prior felonies were committed. 

¶ 43 The trial court admitted State’s Exhibit 7-H, which is a criminal record for 

Defendant developed from the Division of Criminal Information. This exhibit 

contains an incident date for each offense included, information regarding the 

disposition of the case, and information regarding sentencing in the case.6 For the 

first two offenses constituting the underlying felonies here—first-degree attempted 

robbery and fifth-degree attempted criminal sale of a controlled substance—the 

incident date is represented to be the same as the arrest date. For Defendant’s 

conviction for first-degree attempted robbery, the exhibit shows, in the light most 

favorable to the State, that Defendant committed the offense on the incident date of 

18 December 1995 and pleaded guilty to the offense on 16 October 1997. For 

Defendant’s conviction for fifth-degree attempted criminal sale of a controlled 

 

6 Defendant contends that we do not know what the “incident date” means; however,

in the light most favorable to the State, we can reasonably infer that the “incident date” refers 

to the date the offense was committed.
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Opinion of the Court

substance, the exhibit shows, in the light most favorable to the State, that Defendant 

committed the offense on the incident date of 7 April 2000 and pleaded guilty to the 

offense on 5 July 2001. Finally, for Defendant’s conviction for second-degree rape,

the exhibit shows, in the light most favorable to the State, that Defendant committed 

the offense on 3 September 20057 and pleaded guilty to the offense on 18 September 

2006. State’s Exhibit 7-H also contains Defendant’s date of birth, 24 May 1975. 

¶ 44 Using this information from State’s Exhibit 7-H, in the light most favorable to 

the State, we hold that each underlying felony conviction used to conclude that 

Defendant attained habitual felon status was committed after Defendant pleaded 

guilty to the previous offense used. Additionally, we hold that all of the underlying 

offenses occurred after Defendant had attained the age of eighteen, with the earliest 

occurring when Defendant was 20 years old.

¶ 45 As a result, when viewed in the light most favorable to the State, there was

sufficient evidence of the dates of offenses of these felonies to determine that there 

was no overlap between the date of the commission of the felonies and the date of the

preceding felony’s conviction. Also, it appears Defendant had attained the age of 18

years old for all of the underlying offenses. As a result, the evidence underlying the 

first and second prior felonies was sufficient to survive Defendant’s motion to dismiss.

 

7 Defendant acknowledges that the State presented sufficient evidence regarding the 

dates concerning the second-degree rape charge. 
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Opinion of the Court

D. Right to Allocution

¶ 46 Defendant contends that the trial court improperly deprived him of the right 

to allocution when the following exchange occurred at sentencing:

THE COURT: All right. Stand up, [Defendant]. Anything 

you want to say?

DEFENDANT: Yes. I need -- to say what I want to say, I 

need to get my paperwork.

THE COURT: Well, we’re not going to do that. Anything 

you want to say to me right now before you’re sentenced?

DEFENDANT: Yes. I asked to get it before I even came 

out here, and they rushed me and said, “Come on now.” 

Please. I mean, this is my chance to speak to you.

THE COURT: Anything you want to say to me before you’re 

sentenced?

DEFENDANT: Yes, I do. I have it right there in --

THE COURT: All right. Your papers aren’t relevant right 

now. All right. Moving to sentencing, Madam Clerk, it is 

a class C on the habitual felon status, record level two. The 

sentence will be in the presumptive range. He’s sentenced 

to a minimum term of 83 months, maximum terms of 112 

months active time. He’s to receive credit for all pretrial 

confinement. All right. Good luck to you, [Defendant] . . . 

.

[DEFENSE COUNSEL]: Sorry, Judge. I didn’t mean to 

interrupt. I would like to enter notice of appeal in open 

court.

THE COURT: All right. Enter notice of appeal.

DEFENDANT: I don’t just -- I don’t get to say anything now 

to you, Judge?
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Opinion of the Court

THE COURT: No.

¶ 47 N.C.G.S. § 15A-1334(b) reads “[t]he defendant at the hearing may make a 

statement in his own behalf.” N.C.G.S. § 15A-1334(b) (2021). In a past case involving 

the right to allocution, we have stated:

[A]llocution, or a defendant’s right to make a statement in 

his own behalf before the pronouncement of a sentence, 

was a right granted a defendant at common law. The 

United States Supreme Court has also emphasized the 

significance of this right, observing that “the most 

persuasive counsel may not be able to speak for a 

defendant as the defendant might, with halting eloquence, 

speak for himself.” 

Our appellate cases have held that where defense counsel 

speaks on the defendant’s behalf and the record does not 

indicate that the defendant asked to be heard, the statute 

does not require the court to address the defendant and 

personally invite him or her to make a statement. [N.C. 

G.S.] § 15A-1334, while permitting a defendant to speak at 

the sentencing hearing, does not require the trial court to 

personally address the defendant and ask him if he wishes 

to make a statement in his own behalf.

However, a trial court’s denial of a defendant's request to 

make a statement prior to being sentenced is reversible 

error that requires the reviewing court to vacate the 

defendant’s sentence and remand for a new sentencing 

hearing. 

State v. Jones, 253 N.C. App. 789, 797, 802 S.E.2d 518, 523-24 (2017) (quoting Green 

v. United States, 365 U.S. 301, 304, 5 L. Ed. 2d 670, 673 (1961)) (marks and citations 

omitted); see also State v. Miller, 137 N.C. App. 450, 461, 528 S.E.2d 626, 632 (2000) 

(marks and citations omitted) (“[N.C.G.S.] § 15A-1334(b) expressly gives a non-capital 
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Opinion of the Court

defendant the right to make a statement in his own behalf at his sentencing hearing 

if the defendant requests to do so prior to the pronouncement of sentence. Because 

the trial court failed to do so, we must remand these cases for a new sentencing 

hearing.”).

¶ 48 Here, we conclude Defendant’s right to allocution was violated. Once the trial 

court asked Defendant if he had anything to say, Defendant made an unambiguous 

request to make a statement. Defendant proceeded to request that he receive his 

papers, which the trial court refused to allow.8 In the exchange with the trial court, 

Defendant had three opportunities to make a statement without the papers; however,

each opportunity he spent discussing his desire for his papers. 

¶ 49 On this Record, we hold the trial court committed reversible error by denying 

Defendant his statutory right to allocution. N.C.G.S. § 15A-1334(b) states “[t]he 

defendant at the hearing may make a statement in his own behalf.” N.C.G.S. § 15A1334(b) (2021). Further, our caselaw unambiguously holds “a trial court’s denial of a 

defendant’s request to make a statement prior to being sentenced is reversible error 

that requires the reviewing court to vacate the defendant’s sentence and remand for 

a new sentencing hearing.” Jones, 253 N.C. App. at 797, 802 S.E.2d at 524. We have 

 

8 We are unaware of any statute or caselaw that obligates the trial court to permit a 

defendant to receive papers to aid in a statement to the trial court, and we make no ruling

regarding this request.
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Opinion of the Court

applied the rule to broader circumstances and “have held that a trial court effectively 

denied a defendant the right to be heard prior to sentencing even when the court did 

not explicitly forbid the defendant to speak.” Id. at 798, 802 S.E.2d at 524. In Jones, 

we held:

Our review of the transcript shows that the trial court was 

informed that [the] defendant wished to address the court 

and that the trial court acknowledged this request.

However, during [the] defense counsel’s presentation, the 

court indicated that it had already decided how to sentence 

[the] defendant. After hearing from a detective who had 

investigated the case, the trial court became impatient, 

asking if those present expected the court to give [the] 

defendant ‘a merit badge’ and accusing them of portraying 

[the] defendant as ‘a choir boy.’ Immediately thereafter, 

the trial court pronounced judgment. We conclude that, on 

the facts of this case, [the] defendant was denied the 

opportunity to be heard prior to entry of judgment.

Id. at 802, 802 S.E.2d at 526. Similarly, in State v. Griffin, we held:

[the] defense counsel could have reasonably interpreted the 

trial judge’s statement [that it ‘would be a big mistake’ to 

permit the defendant to speak at sentencing] to mean that 

the defendant would receive a longer sentence if he 

testified. Accordingly, we find that the defendant’s right to 

testify under [N.C.G.S.] § 15A-1334(b) was effectively 

chilled by the trial judge’s comment.

State v. Griffin, 109 N.C. App. 131, 133, 425 S.E.2d 722, 723 (1993).

¶ 50 Like in Jones and Griffin, we believe this case presents a circumstance 

justifying remand for a new sentencing hearing, despite the facts here being less 

egregious. Due to the clear invocation of Defendant’s right to allocution, the trial 
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Opinion of the Court

court should have indicated that Defendant was not going to be permitted to receive 

his papers and clarify whether Defendant was still interested in making a statement 

without his papers before it proceeded to sentencing. Instead, the trial court 

summarily indicated “we’re not going to do that. Anything you want to say to me 

right now before you’re sentenced?”9 

¶ 51 We acknowledge that there is caselaw indicating that “[N.C.G.S.] § 15A-1334, 

while permitting a defendant to speak at the sentencing hearing, does not require the 

trial court to personally address the defendant and ask him if he wishes to make a 

statement in his own behalf.” State v. McRae, 70 N.C. App. 779, 781, 320 S.E.2d 914, 

915 (1984), disc. rev. denied, 313 N.C. 175, 526 S.E.2d 35 (1985). To some extent, this 

suggests that if a defendant fails to take advantage of his opportunity to exercise his 

right to allocution, he waives it. See also State v. Rankins, 133 N.C. App. 607, 613, 

515 S.E.2d 748, 752 (1999) (“The purpose of allocution is to afford [a] defendant an 

opportunity to state any further information which the trial court might consider 

when determining the sentence to be imposed.”). However, there is no binding 

caselaw that holds a defendant waives his right to allocution where there is a clear 

 

9 The Record does not indicate how much time passed between the trial court’s 

question and pronouncement of Defendant’s sentence.
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Opinion of the Court

invocation of the right to allocution and an attempt to make a statement.10 

¶ 52 We find Griffin and Jones to present similar factual scenarios. Ultimately, like 

in Griffin and Jones, we conclude the trial court effectively denied Defendant the 

opportunity to allocute by foreclosing his opportunity without clearly indicating 

Defendant would only be allowed to make a statement without his papers and 

inquiring into Defendant’s interest in doing so. We vacate Defendant’s sentence and 

 

10 The closest our caselaw comes is in State v. Moseley and in State v. Pearson, an 

unpublished case. In Moseley, the trial court granted the defendant’s motion for allocution;

but, “when given the opportunity at the appropriate stage of the proceedings, [the] defendant 

failed to remind the trial court of his wish to allocute.” State v. Moseley, 338 N.C. 1, 53-54, 

449 S.E.2d 412, 444 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d 738 (1995). Our 

Supreme Court reasoned that “[s]ince [the] defendant does not have a constitutional, 

statutory, or common law right to allocution [at the conclusion of a capital sentencing 

proceeding] and since [the] defendant failed to remind the court of his desire to speak to the 

jury at the appropriate stage of the case, we conclude that there was no error.” Id. at 54, 449 

S.E.2d at 444. This case is distinct from Moseley in that Defendant does have a statutory 

right to allocution upon invoking it in a non-capital case and Defendant did not fail to assert 

his right at the appropriate time.

In Pearson, we held:

[The] defendant was given the opportunity to make a statement. 

However, rather than address issues related to sentencing, [the] 

defendant complained about the performance of his attorney. 

Thus, we conclude that the trial court did not abuse its discretion 

by refusing to allow [the] defendant to continue his statement.

State v. Pearson, No. COA04-585, 168 N.C. App. 409, 2005 WL 221503, at *3 (2005) 

(unpublished). In addition to being unpublished, and therefore non-binding, Pearson is also 

distinct from the facts sub judice. Defendant did not use his opportunity to complain about 

something unrelated to his right to allocution; instead, Defendant attempted to gain access 

to papers that he intended to use to exercise his right to allocution. Indeed, each time 

Defendant spoke, he indicated his intent to exercise his right to allocution. 

In light of the factual differences in Moseley and Pearson, in addition to Pearson being 

unpublished, we do not find them controlling or persuasive on this issue. 
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Opinion of the Court

remand for a new sentencing hearing. See Jones, 253 N.C. App. at 797, 802 S.E.2d 

at 524.

E. Attorney Fees

¶ 53 Defendant argues the trial court improperly entered a civil judgment for 

attorney fees without notice or opportunity to be heard regarding the fees. However, 

Defendant did not properly appeal this issue11 and instead filed a petition for writ of 

certiorari to seek our review. 

¶ 54 We may issue a writ of certiorari “in appropriate circumstances.” N.C. R. App. 

P. 21(a)(1) (2022). A writ of certiorari is discretionary, “to be issued only for good and 

sufficient cause shown.” State v. Rouson, 226 N.C. App. 562, 564, 741 S.E.2d 470, 471 

(citation omitted), disc. rev. denied, 367 N.C. 220, 747 S.E.2d 538 (2013). “A petition 

for the writ must show merit or that error was probably committed below.” Id. at 

563-64, 741 S.E.2d at 471.

¶ 55 Here, because there are no civil judgments entered against him for attorney

fees in the Record, we deny Defendant’s petition for writ of certiorari and do not reach 

the underlying issue. “[A] judgment is entered when it is reduced to writing, signed 

by the judge, and filed with the clerk of court[.]” N.C.G.S. § 1A-1, Rule 58 (2017)

 

11 On 18 September 2019, Defendant was sentenced and entered oral notice of appeal, 

with written notice of appeal being entered on 20 September 2019. However, subsequently,

the order for attorney fees was entered on 25 October 2019. As a result, Defendant’s original 

notice of appeal did not include the order as it was entered prior to the attorney fees order. 
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Opinion of the Court

(emphasis added); see also In re Thompson, 232 N.C. App. 224, 228, 754 S.E.2d 168, 

171 (2014) (“Because the order was not filed, it was not entered.”). Although there is 

a civil judgment order for attorney fees in the Record, there is no indication it has 

been filed with the Wake County Clerk of Court. As a result, “[w]e lack subject matter 

jurisdiction to review an appeal from an order for attorney[] fees not entered as a civil 

judgment. [A] [d]efendant will not be prejudiced unless and until a civil judgment is 

entered.” State v. Hutchens, 272 N.C. App. 156, 160, 846 S.E.2d 306, 310 (2020).

¶ 56 We deny Defendant’s petition for writ of certiorari as it is without merit due to 

the lack of evidence that a judgment was entered against Defendant that he may

appeal from. We dismiss the portion of Defendant’s appeal regarding the civil 

judgment for attorney fees.

CONCLUSION

¶ 57 Defendant’s indictment sufficiently alleged the essential elements of failure to 

notify the last registering sheriff of a change of address under N.C.G.S. § 14-

208.11(a)(2), bestowing the trial court jurisdiction over the case. Additionally, the 

trial court did not plainly err in its jury instructions and properly denied Defendant’s 

motions to dismiss. However, the trial court denied Defendant his statutory right to 

allocution, requiring us to vacate Defendant’s sentence and remand for a new 

sentencing hearing. Finally, we deny Defendant’s petition for writ of certiorari and 

dismiss his argument regarding attorney fees.
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Opinion of the Court

NO ERROR IN PART; NO PLAIN ERROR IN PART; VACATED AND 

REMANDED FOR NEW SENTENCING HEARING IN PART; DISMISSED IN 

PART.

Judges INMAN and WOOD concur.