State v. Walston, COA24-58, ___ N.C. App. ___ (Jul. 2, 2024)

In this Wayne County case, defendant appealed his convictions for two counts of indecent liberties with a child, arguing error in finding that he was a recidivist. The Court of Appeals determined that defendant’s claims were meritless or procedurally barred and dismissed for lack of appellate jurisdiction. 

Defendant entered into a plea agreement where he agreed to plead guilty based on allegations made against him in Duplin and Wayne Counties. In Duplin County, defendant pleaded guilty to two counts of first-degree statutory sexual offense in April 2020. In Wayne County, defendant pleaded guilty to the two indecent liberties charges giving rise to the current case in July 2023. When sentencing defendant in Wayne County, the trial court found that defendant qualified as a recidivist based on his prior Duplin County convictions and ordered him to register as a sex offender for life. Defendant filed a notice of appeal for the “Judicial Findings and Order for Sex Offenders” but did not appeal the underlying judgment. Subsequently, defendant filed a petition for writ of certiorari with the Court of Appeals. 

The core of defendant’s argument was that the Duplin County charges for sexual offense were “joined in the same plea agreement” with the Wayne County charges for indecent liberties, and thus “should be treated in the same way as charges that are joined for trial.” Slip Op. at 3. Looking through applicable precedent, the court quickly dispensed with defendant’s argument, noting the cases cited by defendant were “readily distinguishable from the present case because the Duplin County charges and Wayne County charges were not joined for trial.” Id. at 5. The court explained that it was irrelevant that defendant entered a plea agreement for all the charges at the same time because defendant “was convicted and sentenced at different times for two separate sets of qualifying offenses.” Id. at 5-6. The court thus declined to grant the petition for lack of merit and dismissed defendant’s appeal.  

The court also briefly considered defendant’s argument that his due process rights were infringed by the recidivist determination, explaining that defendant did not raise this argument in front of the trial court and that the court declined to invoke Rule of Appellate Procedure 2 to consider it.