STATE OF NORTH CAROLINA v. NICOLAS OLIVARES PINEDA

A detailed account of the facts and procedural history of this case can be found

in our previous opinion in this matter. See State v. Pineda, 782 S.E.2d 582 (2016)

(unpublished), available at 2016 N.C. App. LEXIS 177. In summary, Pineda was

identified as a heroin trafficker as the result of an undercover investigation of a

heroin distribution network in the Raleigh area conducted by the Wake County

Sheriff’s Office in 2010-2011. As a result of the evidence collected during the

investigation, on 19 April 2011, the Wake County Grand Jury returned twenty

indictments charging Pineda with trafficking in heroin on five dates. The trafficking

indictments for 3 November 2010, 21 December 2010, 4 February 2011, and 14

February 2011 charge that Pineda trafficked in 28 grams or more of heroin by

possession, transportation, sale, and delivery. The indictments for 23 November 2010

charge that Pineda trafficked in 14 grams or more of heroin by possession,

transportation, sale, and delivery. On 25 February 2014, the Grand Jury returned

an additional indictment charging that, between 3 November 2010 and 14 February

2011, Pineda conspired to traffic in heroin by sale of 28 grams or more.

All charges were joined for trial at the 19 May 2014 criminal session of Wake

County Superior Court, the Honorable Henry W. Hight, Jr., Judge presiding. Prior

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to jury selection, the State took a voluntary dismissal of two of the charges alleged to

have occurred on 14 February 2011, trafficking heroin by sale and by delivery. The

jury found Pineda guilty on the remaining nineteen charges. On 23 May 2014, the

trial court entered the following sentences: on each of the fifteen charges involving

28 grams or more of heroin, including the conspiracy charge, Pineda was sentenced

to 225-279 months in prison and fined $500,000, while on each of the four charges

involving 14 grams or more of heroin, Pineda was sentenced to 90-117 months in

prison and fined $100,000. All sentences were ordered to be served consecutively.

Pineda gave notice of appeal in open court. In his appeal, Pineda argued that the

trial court erred in denying his motions to (1) arrest judgment on the jury’s four

verdicts finding him guilty of trafficking heroin by delivery and (2) dismiss the

charges with offense dates 3 November 2010, 21 December 2010, and 14 February

2011.

The matter was heard in this Court on 18 December 2015, and, in an

unpublished opinion filed 16 February 2016, this panel found no error in the denial

of Pineda’s motion to dismiss, but held that the trial court erred in entering

judgments upon Pineda’s convictions for trafficking the same heroin by both sale and

delivery, citing case law on N.C. Gen. Stat. § 90-95(a)(1) (2015) (providing that “it is

unlawful for any person . . . [t]o manufacture, sell or deliver, or possess with intent

to manufacture, sell or deliver, a controlled substance”). On 4 March 2016, the State

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filed a petition for discretionary review in our Supreme Court, correctly noting that

Pineda was actually indicted and convicted of violating a different subsection of the

Controlled Substances Act, N.C. Gen. Stat. § 90-95(h)(4). By order entered 10 June

2016, the Supreme Court allowed the State’s petition for the limited purpose of

remanding to this Court for reconsideration in light of the correct statute of

conviction, to wit, section 90-95(h)(4).

Discussion

As noted supra, the jury found Pineda guilty of violating N.C. Gen. Stat. § 90

95(h)(4) by trafficking heroin by sale and trafficking heroin by delivery on 3

November 2010, 23 November 2010, 21 December 2010, and 14 February 2011. At

sentencing, Pineda moved the trial court to arrest judgment on the four charges of

trafficking heroin by delivery, contending that those convictions merged into the

convictions for trafficking by sale of the same heroin on the same dates. The court

denied that motion. Pineda contends that this denial was error. We disagree.

Section 90-95(h)(4) provides that “[a]ny person who sells, manufactures,

delivers, transports, or possesses four grams or more of opium or opiate . . . shall be

guilty of a felony which felony shall be known as ‘trafficking in opium or heroin . . . .’ ”

N.C. Gen. Stat. § 90-95(h)(4). Our Supreme Court has held that the various statutory

trafficking offenses in subsection 90-95(h)(4) are “separate and distinct offenses” for

which a defendant “may be convicted and punished separately . . . .” State v. Perry,

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316 N.C. 87, 103-04, 340 S.E.2d 450, 461 (1986). Pineda contends that any

applicability of this language to the offenses of sale and delivery is dicta and suggests

that four years later in State v. Moore, 327 N.C. 378, 395 S.E.2d 124 (1990), our

Supreme Court “took a more careful look at the acts of sale and delivery . . . .

reach[ing] the conclusion that sale and delivery were parts of the same act, transfer

of possession of heroin.” After careful review, we conclude that Pineda misreads the

holding in Moore and ignores the Court’s reasoning in Perry.

In Perry, the defendant had been convicted of violating subsection 90-95(h)(4)

by trafficking in heroin by possessing 28 grams or more, trafficking in heroin by

transporting 28 grams or more, and trafficking in heroin by manufacturing 28 grams

or more, as well as conspiracy to possess 28 grams or more of heroin and conspiracy

to manufacture 28 grams or more of heroin. 316 N.C. at 89, 340 S.E.2d at 453. On

appeal, the defendant argued “that the trial judge erred by refusing to direct the State

to elect between prosecuting [him] for trafficking in heroin and the offenses of

possessing, manufacturing and transporting heroin.” Id. at 102, 340 S.E.2d at 460.

In discussing the legislative intent behind subsection 90-95(h), the Supreme Court

cited and relied upon State v. Anderson, for the proposition that “[t]he distinct acts

denounced by the statute (manufacture, sell, deliver, possess) have been held to

constitute separate and distinct offenses.” 57 N.C. App. 602, 605, 292 S.E.2d 163, 166

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(citations omitted; emphasis added), disc. review denied, 306 N.C. 559, 294 S.E.2d

372 (1982). The Supreme Court held

that possessing, manufacturing, and transporting heroin are separate and distinct offenses. Further, when a person commits any one of these offenses which involves 4 grams or more of heroin, he is guilty of trafficking. Therefore, [a] defendant may be convicted and punished separately for trafficking in heroin by possessing 28 grams or more of heroin, trafficking in heroin by manufacturing 28 grams or more of heroin, and trafficking in heroin by transporting 28 grams or more of heroin even when the contraband material in each separate offense is the same heroin.

Perry, 316 N.C. at 103-04, 340 S.E.2d at 461. Thus, while the defendant in Perry had

not been convicted of trafficking by sale and by delivery, he did present the question

of whether the individual acts of trafficking enumerated in the statute were distinct

offenses which could each sustain a separate conviction even when the same

contraband was involved. Regarding subsection 90-95(h)(4), the Supreme Court

answered that question in the affirmative, and Perry remains good law on that point.

In contrast, in Moore, the Supreme Court did not consider subsection 90

95(h)(4) at all, but rather was asked “to determine whether a defendant may be

convicted under [subsection] 90-95(a)(1) for both the sale and the delivery of a

controlled substance arising from one transaction.” 327 N.C. at 379, 395 S.E.2d at

125 (analyzing the language making it unlawful “[t]o manufacture, sell or deliver, or

possess with intent to manufacture, sell or deliver, a controlled substance”). To

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answer this question, the Court engaged in a careful and detailed analysis of the

wording and punctuation of that subsection:

Having examined the statute, we now conclude that the language of [subsection] 90-95(a)(1) creates three offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled substance by sale or delivery, and (3) possession with intent to manufacture, sell or deliver a controlled substance. . . . By phrasing [subsection] 90-95(a)(1) to make it unlawful to “manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance” (emphasis added), the legislature, solely for the purpose of this statutory subsection, has made each single transaction involving transfer of a controlled substance one criminal offense, which is committed by either or both of two acts—sale or delivery.

A sale is a transfer of property for a specified price payable in money. Delivery is the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. We need not address the relationship between the acts of sale and delivery as it might exist under any other statutory or common law provision, because by the statutory language at issue here the legislature has made it one criminal offense to sell or deliver a controlled substance under [subsection] 90-95(a)(1).

Id. at 381-82, 395 S.E.2d at 126-27 (citations and some internal quotation marks

omitted; some emphasis in original; some emphasis added). Ultimately, the Court

held that, while “[a] defendant may be indicted and tried under [subsection] 90

95(a)(1) . . . for the transfer of a controlled substance . . . by selling . . . or by delivering

the substance, or both. . . . . [he] may not . . . be convicted under [the subsection] of

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both the sale and the delivery of a controlled substance arising from a single transfer.”

Id. at 382, 395 S.E.2d at 127.

Thus, not only does the textual analysis underlying the Court’s reasoning in

Moore not apply to the wording of subsection 90-95(h)(4), the Court in Moore explicitly

stated that its interpretation regarding sale and delivery applied “solely for the

purpose of this statutory subsection [90-95(a)(1)]” and further emphasized that its

holding did not “address the relationship between the acts of sale and delivery as it

might exist under any other statutory . . . provision . . . .” Id. at 382, 395 S.E.2d at

126-27 (emphasis in original). In the case before us, Perry, interpreting section 90

95(h)(4), controls such that trafficking heroin by sale and trafficking heroin by

delivery are “separate and distinct offenses” for which Pineda was properly “convicted

and punished separately.”