Opinion
No. COA10-72
Filed 7 September 2010 This case not for publication
Appeal by defendant from judgments entered 7 May 2009 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 23 August 2010.
Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State. Paul M. Green for defendant.
Guilford County Nos. 08 CRS 82360-62.
On 7 May 2009, a jury found Jose Ismael-Ruiz Zuniga ("defendant") guilty of one count of trafficking in cocaine by selling 28 or more but less than 200 grams of cocaine, one count of trafficking in cocaine by selling 200 or more but less than 400 grams of cocaine, and one count of attempted trafficking in cocaine by attempting to sell 400 or more grams of cocaine. The trial court entered judgment pursuant to the jury verdict and sentenced defendant to consecutive terms of sixty-four to eighty-six months imprisonment for the conviction for attempted trafficking in cocaine and thirty-five to forty-two months imprisonment and seventy to eighty-four months imprisonment for the two convictions for trafficking in cocaine. The trial court also imposed fines of $25,000 for the conviction for attempted trafficking in cocaine and $50,000 and $100,000 for the two convictions for trafficking in cocaine. Defendant filed notice of appeal on 13 May 2009.
On appeal, counsel appointed to represent defendant states he has been "unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal." Counsel requests that this Court review the entire record to determine whether an error has been made in defendant's case pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985).
In accordance with the holdings of Anders and Kinch, counsel wrote two letters to defendant dated 7 January and 10 March 2010. In the letters, counsel advised defendant of his opinion that he could not raise any meritorious issue on appeal and that he would be asking this Court to conduct an independent review of the record. Counsel further informed defendant that defendant had a right to submit to this Court any written arguments defendant believed to have merit. Counsel supplied defendant with a copy of his brief to this Court filed on defendant's behalf, a copy of the record on appeal, a copy of the transcript of defendant's trial and sentencing proceedings, and a copy of the complete superior court file. Defendant has not filed any written arguments on his own behalf with this Court, and a reasonable time in which he could have done so has passed.
We hold defendant's counsel has fully complied with the holdings in Anders and Kinch. Accordingly, we have fully examined the record and transcript to determine whether any issues of arguable merit exist or whether the appeal is wholly frivolous. Although we find no error necessitating reversal or a new trial, counsel for defendant has brought to our attention a possible clerical error in the amount of the fine imposed in the judgment entered upon defendant's conviction for attempted trafficking in cocaine in file number 08 CRS 82362.
The transcript of the trial filed with this Court states that the trial court imposed a fine of $5,000 for defendant's conviction for attempted trafficking in cocaine. However, the judgment entered imposes a fine of $25,000. Based on our review of the record before this Court and arguments of counsel, we are unable to say with certainty whether there is a clerical error in the judgment or in the transcript of the trial proceedings. Accordingly, we remand this matter for determination of whether the trial court erroneously imposed a fine of $25,000 in 08 CRS 82362 and for correction of any clerical error in the judgment if necessary. Other than the errors relating to the fine imposed in 08 CRS 82362, we have been unable to find any possible prejudicial error and conclude that the appeal is wholly frivolous.
No error in 08 CRS 82360 and 82361.
Remanded for determination and correction of clerical error in 08 CRS 82362.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).