Court: 1 theft equals 1 larceny charge

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A Wilson man will see his prison sentence reduced after the N.C. Court of Appeals overturned eight of his nine felony larceny convictions stemming from a January 2015 home break-in.

A three-judge appellate panel ruled July 3 that Jimmy Lee Forte Jr. should not have been convicted of eight counts of felony larceny because all the items he stole were taken together. Judges also threw out Forte’s conviction on attaining habitual felon status due to inconsistencies in the charging document.

Forte was convicted of seven counts of larceny of a firearm, two counts each of breaking and entering and larceny after breaking and entering and one count each of breaking and entering a motor vehicle, misdemeanor larceny and possession of a firearm by a felon on July 27, 2016.

The charges follow a Jan. 16, 2015 break-in at a home on Little John Drive in Wilson. Forte admitted to stealing several guns and several pieces of jewelry from the home, according to a record of the case included in the Court of Appeals opinion.

Special Deputy Attorney General Grady L. Balentine Jr., representing the state on appeal, conceded that Forte had been improperly charged with multiple counts of felony larceny for the same theft.

Writing for the court, Judge Robert N. Hunter Jr. cited the N.C. Supreme Court’s opinion in the 1992 case State v. Adams: “A single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place.”

“There is nothing in the facts of this case to distinguish it from controlling authority,” Hunter wrote. “Because the eight counts of felony larceny all involve property stolen during a single transaction, we vacate seven of the felony larceny convictions.”

The appeals court vacated Forte’s habitual felon conviction due to paperwork errors that made his indictment “fatally defective” — the document stated he was charged with one offense and convicted of a different offense.

Representing himself at trial, Forte failed to preserve the right to appeal the variance in his indictment. The Court of Appeals invoked Rule 2 of the North Carolina Rules of Appellate Procedure in order to reach the issue and overturn the habitual felon conviction. Rule 2 allows judges to suspend appeal preservation rules in order to “prevent manifest injustice to a party or to expedite decision in the public interest.”

While Hunter, Judge Valerie Zachary and Judge Richard Dietz ruled unanimously, Dietz objected to the decision to apply Rule 2 and consider Forte’s appeal of the habitual felon indictment. He spelled out his disagreement in a concurring opinion.

“The majority’s decision to invoke Rule 2 in a case when there is nothing extraordinary and no risk of manifest injustice is flatly inconsistent with Supreme Court precedent,” Dietz wrote. “I will not join the majority in further eroding the consistent, uniform application of our state’s procedural rules.”

The July 3 ruling sends the case back to Wilson County for re-sentencing, but Forte, represented by Assistant Appellate Defender Hannah H. Love, was not entirely successful in his appeal. Forte that the trial court should not have found he had forfeited his right to counsel. Had the Court of Appeals agreed, Forte would be entitled to a new trial.

Superior Court Judge Robert F. Johnson told Forte he’d have to represent himself after Darryl Smith, Forte’s third court-appointed attorney, sought to withdraw from the case due to “irreconcilable differences” with the defendant.”

In a hearing on Smith’s motion, a transcript indicates that Forte continuously interrupted both Smith and the judge and was uncooperative, leading Johnson to find that Forte had forfeited his right to be represented by a court-appointed attorney. Smith was appointed as standby counsel and provided assistance to Forte at trial.

Anyone charged with a crime enjoys the constitutional right to legal representation. Defendants who wish to represent themselves can choose to waive their right to counsel. Forfeiting one’s right to counsel occurs involuntarily when a judge determines the defendant’s failure to cooperate with a court-appointed lawyer reaches the level of “severe misconduct.”

“In finding defendant had forfeited his right to counsel, the trial court noted defendant and his counsel had discussed forfeiture, and defendant continued to be argumentative upon returning to the courtroom following the discussion,” Hunter wrote. “The trial court also found defendant was deliberately difficult with his lawyers and the court. Defendant couldn’t cooperate with two of his three attorneys.”

Forte is currently incarcerated in the medium-custody Tabor Correctional Institution outside Tabor City. Court records do not indicate when his case will return to Wilson for the imposition of a new sentence.