Opinion
No. COA10-1606
Filed 2 August 2011 This case not for publication
Appeal by defendant from judgments entered 5 August 2010 by Judge James U. Downs in Haywood County Superior Court. Heard in the Court of Appeals 7 June 2011.
Attorney General Roy Cooper, by Assistant Attorney General Phillip T. Reynolds, for the State. Bushnaq Law Office, PLLC, by Faith S. Bushnaq, for the Defendant.
Haywood County File No. 10 CRS 467, 732.
Defendant Thomas Cleveland Trammell appeals from judgments sentencing him to concurrent terms of a minimum of 125 months and a maximum term of 159 months imprisonment in the custody of the North Carolina Department of Correction, coupled with a recommendation that he be required to pay restitution in the amount of $317.14 as a condition of work release or post-release supervision, based upon his convictions for felonious breaking or entering, felonious larceny, and having attained the status of an habitual felon. On appeal, Defendant contends that the trial court erred by (1) refusing to dismiss the felonious breaking and entering and felonious larceny charges that had been lodged against him for insufficiency of the evidence, (2) instructing the jury in such a manner as to permit Defendant's conviction of felonious larceny on the basis of an "abstract" theory not alleged in the indictment, (3) failing to adequately inquire into Defendant's request that his court-appointed counsel be removed, and (4) adopting a restitution recommendation that lacked adequate evidentiary support. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant's convictions should remain undisturbed. We do, however, conclude that the record lacks sufficient evidence to support the trial court's restitution recommendation, compelling us to vacate that restitution recommendation and remand this case to the trial court for further proceedings not inconsistent with this opinion.
I. Factual Background A. Substantive Facts
At approximately 3:00 p.m. on 9 November 2009, Cass McGaha left his mobile home in order to pick up his daughter from work. A video surveillance camera was located on Mr. McGaha's porch and focused on his driveway. After Mr. McGaha's departure, Defendant and Mr. McGaha's neice, Julie Guffey, came to Mr. McGaha's mobile home to get food. Ms. Guffey and Defendant had been drinking since 9:00 a.m. and had not eaten breakfast or lunch.
Ms. Guffey testified for the State pursuant to a plea agreement.
Although Ms. Guffey had lived with Mr. McGaha in the past, Mr. McGaha claimed that he had "run [Ms. Guffey] off" about a year earlier, that he had told Ms. Guffey that she was no longer welcome at his residence, that Ms. Guffey had not been in his home since that date, and that he had not given Ms. Guffey permission to enter his residence on the date in question. Ms. Guffey confirmed the essential accuracy of this portion of Mr. McGaha's testimony. However, Ms. Guffey also testified that it was her idea to go to Mr. McGaha's residence and that she told Defendant that Mr. McGaha would not have a problem if they got something to eat in Mr. McGaha's absence because Mr. McGaha had "been there for her" since she was 16.
As Ms. Guffey approached Mr. McGaha's residence, she waved to Brittany Winchester, a neighbor who saw Defendant and Ms. Guffey as they walked up the driveway. Upon reaching Mr. McGaha's residence, discovering that Mr. McGaha was not at home, and finding that the front door was padlocked, Ms. Guffey told Defendant to wait on the front porch and went to the rear of the residence. At that point, Ms. Guffey forced her way into Mr. McGaha's mobile home by kicking or hitting the back door. When Ms. Guffey opened the door, one of Mr. McGaha's dogs escaped. Ms. Guffey did not have a key to Mr. McGaha's mobile home and had not been invited to enter his residence on that date. Defendant followed Ms. Guffey into Mr. McGaha's mobile home.
After entering the mobile home, Ms. Guffey disabled Mr. McGaha's surveillance camera in order to prevent Mr. McGaha from learning that the two of them had entered his residence. While in Mr. McGaha's residence, Defendant and Ms. Guffey ate a sandwich and consumed a glass of milk. Ms. Guffey testified that Defendant participated in the entire event with her.
Upon returning home, Mr. McGaha noticed that one of his dogs was out and that another dog was missing. When he walked around the back of the residence, Mr. McGaha noted that milk had been poured in the yard, that the back door was open, and that a glass pane in the back door had been broken. After entering the mobile home, Mr. McGaha observed that some food had been disturbed and that a broken drinking glass was on the floor. Mr. McGaha discovered that a sword, a BB gun, a cell phone, his dog and a knife were missing after the break-in. Each of these items had been present in the mobile home before Mr. McGaha left to go pick up his daughter.
Mr. McGaha eventually located the missing dog.
After learning from Ms. Winchester that Defendant and Ms. Guffey had been seen approaching his mobile home, Mr. McGaha called the police. Detective P. T. Trantham of the Waynesville Police Department came to Mr. McGaha's residence in response to his call. After restoring power to the surveillance camera and retrieving the tape that the machine made before being disabled, Mr. McGaha and Detective Trantham observed footage of Defendant and Ms. Guffey coming to Mr. McGaha's mobile home. As a result, Detective Trantham obtained warrants for the arrest of Defendant and Ms. Guffey.
A few minutes later, another law enforcement officer informed Detective Trantham that Defendant and Ms. Guffey were at the residence of Defendant's father, at which the other officer had responded to a disturbance. After learning that Detective Trantham had obtained warrants for their arrest, the second officer took Defendant and Ms. Guffey into custody. Following her arrest, Ms. Guffey told Detective Trantham that she would tell investigating officers where the stolen property was located in the event that the State elected to prosecute her rather than Defendant. Aside from the dog, none of the other missing items were ever recovered.
Subsequently, Ms. Guffey retracted this admission, claiming that nothing had been taken from Mr. McGaha's residence.
B. Procedural History
On 29 March 2010, the Haywood County grand jury returned bills of indictment charging Defendant with felonious breaking and entering, felonious larceny and having attained the status of an habitual felon. On 2 August 2010, the State filed a response to Defendant's motion for a bill of particulars in which the State informed Defendant that it "intends to prove that at the time of the breaking or entering, defendant had the intent to commit a larceny therein of at least the following items, if not other items: one knife, one BB gun, a pit bull dog mix, one sword, and/or possibly a ham sandwich, and a glass of milk."
The charges against Defendant came on for trial before the trial court and a jury at the 2 August 2010 criminal session of the Haywood County Superior Court. Prior to trial, Defendant's trial counsel moved to withdraw from his representation of Defendant on the grounds that Defendant lacked faith in him. After engaging in a colloquy with Defendant and Defendant's trial counsel, the trial court declined to replace Defendant's trial counsel. The trial court did, however, advise Defendant that he was free to hire his own attorney or to represent himself.
Although the parties' briefs state that Defendant's trial counsel filed a withdrawal motion, there is no written withdrawal motion in the record on appeal.
On 4 August 2010, the jury returned verdicts convicting Defendant of felonious breaking or entering and felonious larceny. On the same date, the jury convicted Defendant of having attained the status of an habitual felon. At the ensuing sentencing hearing, the trial court found that Defendant had accumulated ten prior record points and should be sentenced as a Level IV offender. Based upon these determinations, the trial court sentenced Defendant to a minimum term of 125 months and a maximum term of 159 months imprisonment for felonious breaking or entering and to a concurrent term of a minimum of 125 months and a maximum term of 159 months imprisonment for felonious larceny, with both sentences to be served in the custody of the North Carolina Department of Correction. In addition, the trial court recommended that Defendant be required, jointly and severally with Ms. Guffey, to pay restitution in the amount of $317.40 as a condition of post-release supervision or work release. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis A. Sufficiency of the Evidence
On appeal, Defendant initially argues that the trial court erred by denying his motion to dismiss the charges against him because the evidence was insufficient to support his convictions. We disagree.
The standard of review "for ruling on a motion to dismiss is `whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.'" State v. Harris, 145 N.C. App. 570, 578, 551 S.E.2d 499, 504 (2001) (quoting State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990)), disc. review denied, 355 N.C. 218, 560 S.E.2d 146 (2002). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (citing State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000)), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403, 123 S. Ct. 495 (2002). "In resolving this question, the trial court must examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor of the State's case." Id. (citing State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001), overruled on other grounds in State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005)).
Defendant was convicted of breaking and entering in violation of N.C. Gen. Stat. § 14-54(a), which provides that "[a]ny person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon." In addition, Defendant was convicted of larceny, which requires proof of "(1) the taking of the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to permanently deprive the owner of the property." State v. Barbour, 153 N.C. App. 500, 502, 570 S.E.2d 126, 127 (2002) (citing State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982), overruled in part on other grounds in State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 916 (2010)). In challenging his convictions, Defendant argues that the evidence presented by the State failed to establish that he lacked a good faith belief that his entry into Mr. McGaha's mobile home was anything other than consensual, that the record contained no evidence that he acted in conjunction with Ms. Guffey as part of a common scheme to commit larceny, and that the record provided no support for a conclusion that he intended to deprive Mr. McGaha of his property permanently.
1. Consent
First, Defendant argues that the evidence did not suffice to support his conviction for feloniously breaking or entering into Mr. McGaha's residence because Ms. Guffey told him that she was welcome in Mr. McGaha's home. Although "[a] person entering a residence with the good faith belief that he has the consent of the owner or occupant or his authorized agent is not chargeable with the offense of breaking and entering," State v. Tolley, 30 N.C. App. 213, 215, 226 S.E.2d 672, 674, disc. review denied, 291 N.C. 178, 229 S.E.2d 691 (1976), Defendant's reliance on this principle is misplaced. A careful examination of the record reveals the presence of ample evidence tending to show that Ms. Guffey was not and had not for some time been authorized to enter Mr. McGaha's residence. State v. Upchurch, 332 N.C. 439, 458, 421 S.E.2d 577, 588 (1992) (stating that "consent as a defense is not established until authority to consent is determined to be valid"). In addition, the fact that Ms. Guffey broke into Mr. McGaha's mobile home and disabled the surveillance camera provides more than adequate justification for a jury determination that Defendant knew or had reason to believe that neither he nor Ms. Guffey had permission to be in Mr. McGaha's mobile home. As a result, the record contains ample evidence tending to show both that Ms. Guffey lacked the authority to consent to Defendant's entry into Mr. McGaha's mobile home and that Defendant knew that his entry into Mr. McGaha's mobile home was not permissive in nature. Thus, this aspect of Defendant's argument lacks merit.
2. Absence of Intent
Secondly, Defendant contends that the State failed to elicit sufficient evidence to permit a reasonable jury to find that he acted in concert with Ms. Guffey in connection with their unlawful entry into Mr. McGaha's mobile home. Although the contours of Defendant's argument are not entirely clear, Defendant appears to be claiming that the record lacks sufficient evidence to support a finding that he acted in concert with Ms. Guffey for the purpose of committing a crime and that this deficiency in the State's evidence deprives his convictions of adequate evidentiary support. Once again, we find Defendant's contention unpersuasive.
In order for a jury to find that two or more individuals acted in concert, the State must show that they "act[ed] together, in harmony or in conjunction one with another pursuant to a common plan or purpose." State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979).
Where the state seeks to convict a defendant using the principle of concerted action, that this defendant did some act forming a part of the crime charged would be strong evidence that he was acting together with another who did other acts leading toward the crimes' commission. . . . It is not, therefore, necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.
Id. at 356-57, 255 S.E.2d at 395. As the Supreme Court concluded in Joyner, a jury can reasonably infer that the alleged perpetrators of a crime had a common purpose based upon evidence that they were together before the offense, entered the home of the victim together, and were arrested together. Id.
The same factors that supported a finding of concerted action in Joyner are present here. The record contains evidence tending to show that Defendant spent the entire day with Ms. Guffey, that they came to Mr. McGaha's residence for the common purpose of obtaining food, that they arrived at Mr. McGaha's mobile home together, that Defendant participated in the activities in which Ms. Guffey engaged at Mr. McGaha's mobile home, that various items of property were present in Mr. McGaha's mobile home before Defendant and Ms. Guffey arrived and were gone following their departure, and that Defendant was with Ms. Guffey at the time of their arrest. As a result, the record evidence, when taken in the light most favorable to the State, clearly permits an inference that Defendant was not "merely present" at Mr. McGaha's residence while Ms. Guffey committed various crimes. State v. Capps, 77 N.C. App. 400, 402-403, 335 S.E.2d 189, 190 (1985) (stating that "[a] defendant's mere presence at the scene of the crime does not make him guilty of felonious larceny even if he sympathizes with the criminal and does nothing to prevent it"). Thus, the second component of Defendant's challenge to the sufficiency of the evidence to support his convictions lacks merit.
3. Intent to Deprive Mr. McGaha of his Property Permanently
Finally, Defendant appears to argue that the record lacks sufficient evidence to permit a finding that he intended to deprive Mr. McGaha of the stolen items permanently. Although Defendant focuses on the allegedly stolen dog for the majority of his relatively brief discussion of this contention, we understand his argument to encompass all of the allegedly stolen property instead of being limited to the allegedly stolen dog. However, when we view the record in the light most favorable to the State, as we are required to do under the applicable standard of review, we conclude that the record contains ample evidence tending to show the existence of the necessary intent to deprive Mr. McGaha of his property permanently. According to the undisputed evidence, a number of items of property disappeared between the time that Mr. McGaha left his mobile home and the time that he returned. In addition, the record shows that Defendant and Ms. Guffey entered Mr. McGaha's residence during his absence and that Defendant fully participated in Ms. Guffey's activities at Mr. McGaha's mobile home. Finally, the record indicates that Ms. Guffey told Detective Trantham that she could ensure the return of the stolen property in the event that he refrained from proceeding against Defendant. Thus, the record contains more than sufficient evidence to permit the jury to find the necessary intent to deprive Mr. McGaha of his property permanently.
B. Jury Instructions
Next, Defendant argues that the trial court erred by instructing the jury that it could convict Defendant of felonious larceny on the basis of a theory not alleged in the indictment. As a result of the fact that Defendant did not object to this aspect of the trial court's instructions in a timely manner, N.C.R. App. P. 10(a)(2) (stating that "[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict. . . ."), we must review the Defendant's contention utilizing a plain error standard of review. State v. Hardy, 353 N.C. 122, 131, 540 S.E.2d 334, 342 (2000), cert. denied, 534 U.S. 840, 151 L. Ed. 2d 56, 122 S. Ct. 96 (2001).
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
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, 103 S. Ct. 381 (1982)) (internal quotations omitted). "Under a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result." Hardy, 353 N.C. at 131, 540 S.E.2d at 342 (citing State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993)).
According to Defendant, the trial court erred by instructing the jury that it could convict Defendant of felonious larceny in the event that it found that Defendant, acting individually or in concert with someone else, took Mr. McGaha's "property" despite the fact that the felonious larceny indictment returned against Defendant alleged that he stole "a BB gun, a Pit Bull mix dog, and a sword. . . ." In Defendant's view, the generalized manner in which the trial court described the property Defendant was alleged to have stolen violated the principle that "the trial court should not give instructions which present to the jury possible theories of conviction which are either not supported by the evidence or not charged in the bill of indictment." State v. Shipp, 155 N.C. App. 294, 300, 573 S.E.2d 721, 725 (2002) (quoting State v. Taylor, 304 N.C. 249, 274, 283 S.E.2d 761, 777 (1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, 103 S. Ct. 3552, (1983)). Defendant is not entitled to relief on the basis of this argument.
An "indictment must allege all of the essential elements of the crime sought to be charged." State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996) (citing State v. Courtney, 248 N.C. 447, 451, 103 S.E.2d 861, 864 (1958)). Although "[a]llegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage," Westbrooks, 345 N.C. at 57, 478 S.E.2d at 492 (quoting State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972)), a valid larceny indictment, regardless of whether the crime charged is alleged to be a felony on the basis of the value of the goods stolen or the fact that the theft resulted from an unlawful breaking or entry, must allege the identity of the items of property alleged to have been stolen with sufficient specificity to allow the defendant to protect himself or herself from a subsequent prosecution for the same offense. See State v. Ingram, 271 N.C. 538, 542-43, 157 S.E.2d 119, 123-24 (1967) (holding that an indictment describing the allegedly stolen property as "merchandise, chattels, money, valuable securities, and other personal property" was insufficient to charge larceny); State v. Nugent, 243 N.C. 100, 102-103, 89 S.E.2d 781, 784 (1955) (holding that an indictment describing the allegedly stolen property as "meat" was insufficient to charge a crime because "[t]he defendant has a constitutional right to have the bill of indictment state the kind of meat he is alleged to have taken or received").
The fact that the trial court's instructions referred to the allegedly stolen items as "property" rather than listing each of the items listed in the indictment did not, contrary to Defendant's contention, result in a violation of the prohibition against permitting "conviction on an abstract theory, not supported by the bill of indictment." Shipp, 155 N.C. App. at 301, 573 S.E.2d at 725-26. Statutes such as N.C. Gen. Stat. § 14-17, which sets out a number of different bases upon which a defendant can be convicted of first degree murder, or N.C. Gen. Stat. § 14-39, which sets out a number of different bases upon which a defendant can be convicted of first and second degree kidnapping, are examples of statutes which create multiple theories of liability on the basis of which a defendant can be convicted of the same crime. Here, however, since the larceny indictment returned against Defendant in this case alleged that he was guilty of felonious larceny on the basis of "a violation of Section 14-54 of the General Statutes of North Carolina" and since the trial court's instructions only allowed the jury to convict Defendant on the basis that the allegedly stolen property was taken following a breaking or entering, the challenged instruction did not permit the jury to convict Defendant of felonious larceny on the basis of a theory that had not been alleged in the indictment. See State v. Bollinger, 192 N.C. App. 241, 247, 665 S.E.2d 136, 140 (2008), aff'd, 363 N.C. 251, 675 S.E.2d 333 (2009) (holding that the trial court did not commit plain error by instructing the jury in a case in which the defendant was charged with carrying a concealed weapon that it could convict the defendant in the event that it found that the defendant possessed two knives and a set of brass knuckles despite the absence of any reference to knives in the indictment). Thus, Defendant's argument is without merit.
C. Removal of Counsel
Thirdly, Defendant claims that the trial court failed to conduct an adequate inquiry when he objected to continued representation by his trial counsel. As he informed the trial court, Defendant did not believe that his counsel had spent enough time discussing his case with him and that Defendant's trial counsel had failed to make himself adequately available for the purpose of obtaining information about a prospective defense witness. At the time that Defendant's trial counsel raised this issue before the trial court, the trial court advised Defendant that his counsel had considerable experience and questioned Defendant's trial counsel concerning the extent to which he was prepared to represent Defendant at trial. At the end of this discussion, the trial court concluded that there was no reason to remove Defendant's trial counsel and advised Defendant that he had the option of either representing himself or hiring private counsel. Immediately prior to the beginning of jury selection, when the trial court inquired if there was "[a]nything else in the way of preliminary remarks to the jury" from the State or Defendant, Defendant reiterated that "I don't want him as my attorney." We do not believe that Defendant is entitled to relief from his convictions based on the manner in which the trial court handled this issue.
"A criminal defendant has a constitutional right to the assistance of counsel in his defense, which implicitly includes the right to refuse the assistance of counsel and conduct his own defense." State v. Johnson, 341 N.C. 104, 110, 459 S.E.2d 246, 249 (1995) (citing Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S. Ct. 2525 (1975). A defendant does not, however, have "a right to have the attorney of his choice appointed to represent him." State v. Robinson, 290 N.C. 56, 65, 224 S.E.2d 174, 179 (1976). "In the absence of any substantial reason for the appointment of replacement counsel, an indigent defendant must accept counsel appointed by the court, unless he wishes to present his own defense." State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). In the event that a defendant wishes to proceed pro se, he or she may not be forced to accept unwanted counsel. Id. However, "[o]nly if a defendant clearly expresses his desire to have counsel removed and to proceed pro se is the trial court obligated to make further inquiry pursuant to N.C. [Gen. Stat.] § 15A-1242 to determine if defendant understands the consequences of his decision and voluntarily and intelligently wishes to waive his right to the representation of counsel." Johnson, 341 N.C. at 111, 459 S.E.2d at 250 (citing State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981)). "In the absence of such an expression by defendant of a desire to proceed pro se, when faced with a conflict between defendant and his attorney, the trial court must determine only that defendant's present counsel is able to render competent assistance and that the nature of the conflict will not render such assistance ineffective." Id. at 111, 459 S.E.2d at 250.
Although Defendant argues that, based upon Defendant's repetition of "his request a day after expressing his belief that he would not be able to hire counsel from the jail, an inference could be drawn that [Defendant] had elected to represent himself", we cannot agree with this contention. A careful review of the record demonstrates that, despite Defendant's dissatisfaction with his trial counsel, he never indicated any desire to represent himself. A reiterated expression of dissatisfaction with one's attorney is simply not tantamount to a request to be allowed to proceed pro se. Moreover, although Defendant has claimed that the trial court failed to conduct a sufficient colloquy with Defendant to "establish[] that trial counsel would not be ineffective" or that "any conflict between counsel and client [would] render counsel's performance ineffective," Defendant has failed to suggest the additional information that the trial court should have elicited or demonstrated any basis for a belief that Defendant's trial counsel could not have provided him with adequate representation. While discussing this situation with Defendant and his trial counsel, the trial court elicited the nature of Defendant's complaints, ascertained how many times Defendant's trial counsel had met with his client, and satisfied itself that Defendant was not about to be deprived of adequate legal representation. As a result of the fact that Defendant never asked to be allowed to proceed pro se and the fact that Defendant has not shown that the trial court failed, given the available information, to conduct a sufficient inquiry into the risk that Defendant would receive constitutionally deficient representation, the trial court did not err by failing to make an additional inquiry in the aftermath of Defendant's expressions of dissatisfaction with his trial counsel. Thus, this argument lacks merit.
D. Restitution Amount
Finally, Defendant contends that the trial court's restitution recommendation lacks adequate evidentiary support. This argument has merit.
"When an active sentence is imposed, the court shall consider whether . . . it should recommend to the Secretary of Correction that restitution or reparation be made by the defendant out of any earnings gained by the defendant if [the defendant] is granted work-release privileges" pursuant to N.C. Gen. Stat. § 148-33.2(c) or whether "restitution or reparation by the defendant [should] be made a condition of any parole or post-release supervision granted the defendant" pursuant to N.C. Gen. Stat. § 148-57.1(c). "[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing." State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995); see also State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d 557, 560, aff'd 318 N.C. 502, 349 S.E.2d 576 (1986) (stating that "[a]n order of restitution as a condition of work-release must be supported by evidence adduced at trial or at sentencing") (citing State v. Killian, 37 N.C. App. 234, 238, 245 S.E.2d 812, 815 (1978)). "The unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered." State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (citing State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). Although the "defendant did not specifically object to the trial court's entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. § 15A-1446(d)(18)." Shelton, 167 N.C. App. at 233, 605 S.E.2d at 233 (citing State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003)).
At the sentencing hearing, the State relied exclusively on the restitution worksheet and argued that the amount in question related to damage to Mr. McGaha's home and the property that had been stolen from him. The record contains no evidence tending to show the manner in which the $317.40 restitution amount awarded was derived. At the time that the parties and the trial court discussed the restitution issue at Defendant's sentencing hearing, the following proceedings took place:
[Prosecutor]: . . . Your Honor, in this matter the State would ask the Court to consider the restitution worksheet in the amount of $317.40, for damage to the house and some of the missing property from Mr. Cass McGaha being joint and several with Julie Guffey in 09CRS54717. As far as proving up the prior convictions, Your Honor, and the restitution worksheets. That would be the evidence for the State as to his prior convictions and his level as calculated under [N.C. Gen. Stat. § 15A-1340.14(c)].
THE COURT: All right. What says the defendant about the contended record level?
[Def. Coun.]: Your Honor, as to that, as to the documents that have been handed-up. We believe they comply with current law. We don't have any argument to that effect but we would want to register an Objection to serve future appellate argument.
Although the State contends that the response given by Defendant's trial counsel constitutes a stipulation to the amount of restitution requested by the State, we do not read his comments in that manner. The first problem with this argument is that, taken in context, it appears to us that the comments made by Defendant's trial counsel are addressed to the prior record level issue rather than to the amount of restitution that Defendant should be required to make. Secondly, to the extent that the comments made by Defendant's trial counsel address the restitution issue, they amount to little more than an acknowledgement that the "documents" tendered by the State "comply with current law," coupled with an objection. As a practical matter, Defendant's trial counsel stood silent in the face of the State's request for an award of restitution and never tacitly accepted the State's restitution figure. Although "`[s]ilence, under some circumstances, may be deemed assent,' a stipulation's terms must nevertheless `be definite and certain in order to afford a basis for judicial decision, and it is essential that they be assented to by the parties or those representing them.'" State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007) (quoting State v. Alexander, 359 N.C. 824, 828, 616 S.E.2d 914, 917 (2005)). "We do not consider Defendant's silence or lack of objection to the restitution amount to constitute a `definite and certain' stipulation as required by North Carolina law." State v. Smith, ___ N.C. App. ___, ___, 707 S.E.2d 779, 783 (citing State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010)). As a result of the fact that Defendant did not stipulate as to the restitution amount ultimately recommended by the trial court, the trial court erred by ordering restitution without adequate record support. See State v. Mauer, ___ N.C. App. ___, ___, 688 S.E.2d 774, 778 (2010) (vacating a restitution award where the only evidence presented to support restitution was the restitution worksheet). Thus, the trial court's restitution recommendation must be vacated and this case remanded for further proceedings directed toward the restitution issue. Smith, ___ N.C. App. at ___, 707 S.E.2d at 783; State v. Blount, ___ N.C. App. ___, ___, 703 S.E.2d 921, 927 (2011); Shelton, 167 N.C. App. at 233, 605 S.E.2d at 234.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant received a fair trial that was free from prejudicial error, so that Defendant is not entitled to any relief from his convictions on appeal. We do, however, conclude that the trial court erred by recommending that Defendant be required to make restitution in the amount of $317.40 as a condition of work release or post-release supervision when the amount of restitution deemed appropriate by the trial court lacked adequate evidentiary support. As a result, although we find no error in the proceedings leading to Defendant's convictions, we vacate the trial court's restitution recommendation and remand this case to the Haywood County Superior Court for further proceedings not inconsistent with this opinion.
NO ERROR IN PART; VACATED AND REMANDED IN PART.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).