Opinion
No. COA12–1562.
2013-06-18
STATE of North Carolina v. Jimmy Lee FORTE, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State. Linda B. Weisel, for defendant-appellant.
Appeal by defendant from judgments entered 19 July 2012 by Judge Milton F. Fitch, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State. Linda B. Weisel, for defendant-appellant.
ELMORE, Judge.
Jimmy Lee Forte, Jr. (defendant) appeals from the judgments and restitution order entered upon his guilty plea. We agree with the parties that defendant is entitled to resentencing for the offense of forgery of an instrument in 12 CRS 50233, but affirm the restitution order based on defendant's stipulation to the amount awarded. We dismiss the appeal in 12 CRS 50510.
A grand jury returned true bills of indictment charging defendant with, inter alia, forgery of an instrument in violation of N.C. Gen.Stat. § 14–119(a) (2011), and obtaining property by false pretenses. In exchange for the State's dismissal of additional pending charges, defendant pled guilty to these offenses and stipulated to prior convictions resulting in eleven points and a prior record level IV. In judgments entered 19 July 2012, the trial court sentenced him to consecutive prison terms of eleven to twenty-three months.
Defendant filed a pro se notice of appeal on 1 August 2012, which lacked proof of service and did not clearly designate the judgment or order from which appeal was taken, as required by N.C.R.App. P. 4(a)(2), (b). In the absence of proper notice of appeal, “this Court is without jurisdiction[.]” State v. McCoy, 171 N .C.App. 636, 638, 615 S.E.2d 319, 320,appeal dismissed,360 N.C. 73, 622 S.E.2d 626 (2005). Defendant has since filed a petition for writ of certiorari asking this Court to consider his appeal notwithstanding his failure to take timely action to perfect it. SeeN.C.R.App. P. 21(a)(1).
With regard to the judgment in 12 CRS 50233, defendant has raised a sentencing issue within his limited right of appeal from his guilty plea under N.C. Gen.Stat. § 14A–1444(a2)(3) (2011). Accordingly, we allow the petition for writ of certiorari to review the judgment in 12 CRS 50233, as well as the restitution order. See State v. Rico, ––– N.C.App. ––––, ––––, 720 S.E.2d 801, 804 (citing State v. Davis, 206 N.C.App. 545, 551, 696 S.E.2d 917, 921–22 (2010)), rev'd in non-pertinent part,––– N.C. ––––, 734 S.E.2d 571 (2012) (per curiam). As to the judgment in 12 CRS 50510, defendant has presented no issue cognizable on appeal or reviewable by writ of certiorari. See State v. Demaio, ––– N.C.App. ––––, ––––, 716 S.E.2d 863, 865–66 (2011). His appeal from this judgment is dismissed. State v. Jamerson, 161 N.C.App. 527, 529, 588 S.E.2d 545, 547 (2003) (“Without an appeal of right or the authority to grant certiorari, this Court may not consider the arguments asserted by defendant.”).
Defendant first claims that the trial court erred in sentencing him as a Class H felon for the crime of forgery of an instrument. Although N.C. Gen.Stat. § 14–119(a)(2011) defines this offense as a Class I felony, the trial court treated the offense as a Class H felony throughout the plea proceedings and designated it as such on the final judgment. Moreover, while purporting to sentence defendant within the presumptive range, the court imposed a term of imprisonment that exceeds what is authorized within the presumptive range for a Class I felony and prior record level IV. N.C. Gen.Stat. § 15A–1340.17(c)– (d) (2011). The State concedes that defendant is entitled to resentencing for the forgery offense, and we agree. We therefore reverse the judgment in 12 CRS 50233 in part and remand for resentencing based on the proper offense class.
The judgment records a conviction of “Common Law Forgery” rather than the indicted charge of forgery of an instrument under N.C. Gen.Stat. § 14–119(a).
Defendant also challenges the trial court's restitution order on the ground that it is unsupported by evidence adduced at the plea hearing. He notes that the restitution worksheet identifies victims and amounts due that were not discussed during the hearing, and bears a file number corresponding to charges that were dismissed pursuant to defendant's plea agreement.
Whether an award of restitution is adequately supported by the evidence is a question of law we review de novo. State v. Watkins, –––N.C.App. ––––, ––––, 720 S.E.2d 844, 853 (2012). Accordingly, while the State has conceded error in its appellate brief, this Court “is not bound by the State's concession.” State v. Phifer, 297 N.C. 216, 226, 254 S.E.2d 586, 591 (1979). It is the role of the reviewing court to determine whether “a particular legal conclusion follows from a given state of facts[.]” Id. (internal citations and quotations omitted).
North Carolina law provides that, “[i]n the absence of an agreement or stipulation between defendant and the State, evidence must be presented in support of an award of restitution.” State v. Buchanan, 108 N.C.App. 338, 341, 423 S.E.2d 819, 821 (1992) (emphasis added). Our Supreme Court has made clear that a defendant's restitution obligation “may be established by stipulation of counsel if that stipulation is definite and certain.” State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010) (quotations omitted).
Here, both defendant and his counsel, as well as the prosecutor and trial judge, signed a “Transcript of Plea” which included the following provision marked by a check: “The defendant stipulates to restitution to the party[ies] in the amounts set out on ‘Restitution Worksheet, Notice and Order (Initial Sentencing)’ (AOC–CR–611).” While it is true that the restitution worksheet and the prior record level worksheet bear file numbers of cases dismissed pursuant to the plea agreement, we are persuaded that these discrepancies are mere clerical errors. See State v. Jarman, 140 N.C.App. 198, 202, 535 S.E.2d 875, 878 (2000) (holding that this Court has the power to correct clerical errors to “make its records speak the truth”). The amount of restitution ordered, $499, accords with the amount the trial court confirmed with defendant in open court during his plea colloquy:
THE COURT: You also understand that there is $499 restitution due from you?
THE DEFENDANT: Yes, sir.
We find nothing in the record to contradict the parties' signed stipulation as to the identity of the victims or the amount of restitution owed. A reviewing court will not assume error where “none appears on the record.” State v. Badgett, 361 N.C. 234, 251, 644 S.E.2d 206, 216 (2007) (quoting State v. Daughtry, 340 N.C. 488, 517, 459 S.E.2d 747, 762 (1995)). Because defendant explicitly stipulated to restitution in the amount reflected on the worksheet, the State was relieved of its evidentiary burden. See State v. Hussey, 194 N.C.App. 516, 523, 669 S.E.2d 864, 868 (2008) (honoring signed stipulation on prior record worksheet). Defendant's argument is overruled.
The judgment in 12 CRS 50233 is reversed in part and remanded for resentencing. We affirm the restitution order but remand for correction of the file number listed thereon.
No. 12 CRS 50233—Judgment and Commitment—Sentence reversed and remanded for resentencing.
Nos. 12 CRS 50233, 50510—Restitution Order—Affirmed; remanded for correction of clerical error.
No. 12 CRS 50510—Judgment and Commitment—Appeal dismissed. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).