State v. Garmon, COA 23-544, ___ N.C. App. ___ (Dec. 3, 2024)

In this Union County case, defendant appealed his conviction for maintaining a vehicle for keeping or selling controlled substances, arguing error in denying his motion to dismiss, and filed a motion for appropriate relief (MAR) challenging the indictment for habitual felon status. The Court of Appeals found no error, but granted defendant’s MAR, vacating and remanding for resentencing.

In October of 2020, the Union County Sheriff's Office received a tip from a confidential informant that a silver Hyundai car with body damage was involved in drug trafficking. The vehicle, with defendant as the driver, was subsequently pulled over and defendant admitted during the stop he did not have a driver’s license. A K-9 walkaround was conducted, and the K-9 alerted for narcotics, leading to the discovery of various controlled substances. Defendant was convicted of drug trafficking, possession of drug paraphernalia, and maintaining a vehicle for keeping or selling controlled substances, and defendant pleaded guilty to habitual felon status.

Defendant argued that insufficient evidence showed he (1) kept or maintained the silver Hyundai, and (2) did so for keeping or selling controlled substances. Exploring (1), the Court of Appeals looked to the meaning of “kept or maintained” in the applicable caselaw, determining that no evidence supported defendant “maintained” the vehicle. Slip Op. at 6-7. Noting that “there is no specific period of possession that indicates a car was or was not ‘kept,’” the court looked to the circumstances, as officers found “a hotel receipt from the day before, as well as mail and a social security card with Defendant’s name on them,” indicating sufficient possession to represent keeping the vehicle. Id. at 7-8. Reaching (2), the court noted the drug paraphernalia found “scattered about the car” and the drug reside inside supported a conclusion that defendant was using the vehicle for keeping or selling drugs. Id. at 12.

The court then took up defendant’s MAR, where defendant contended “the habitual felon indictment predate[d] the offense date of the felonies for which he was being tried [and] the trial court thus lacked subject matter jurisdiction.” Id. at 13. The court explained that defendant’s indictment for being a habitual felon was dated January 14, 2020. The principal felony in this case was committed on October 12, 2020, and defendant was not indicted for the felony until January 14, 2021. The court looked to State v. Ross, 221 N.C. App. 185 (2012), for the conclusion that there was no pending prosecution for the habitual felon indictment to attach to, and “the trial court lacked jurisdiction over the habitual felon charge and erred by accepting Defendant’s habitual felon guilty plea.” Slip Op. at 15.

Judge Hampson dissented and would have held that the State’s evidence did not establish defendant “kept or maintained” a vehicle for keeping or selling controlled substances.