Opinion
No. COA14–474.
03-17-2015
STATE of North Carolina v. Robert Earl MURPHY, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Matthew Tulchin, for the State. Amanda S. Zimmer for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Matthew Tulchin, for the State.
Amanda S. Zimmer for defendant-appellant.
GEER, Judge.
Defendant Robert Earl Murphy appeals from judgments entered 6 August 2013 originally sentencing him for possession with intent to sell or deliver cocaine (“PWISD”) and delivery of cocaine. Defendant was later resentenced on 5 December 2013 for the same crimes. Defendant does not challenge the proceedings at trial but argues that his original sentences were illegal, and the trial court had no authority to resentence him on 5 December 2013. Because defendant gave notice of appeal prior to 5 December 2013 and the changes to defendant's sentence did not involve clerical errors, the trial court lacked jurisdiction to resentence defendant. In addition, there is no dispute that the original sentences were not authorized under the General Statutes. We, therefore, vacate defendant's original judgments and the amended judgments and remand for resentencing.
Facts
Defendant was indicted for PWISD, delivery of cocaine, and possession of cocaine. These crimes were alleged to have happened 23 December 2011. Defendant was tried in Nash County Superior Court, with Judge Alford presiding, and, on 6 August 2013, a jury convicted defendant of all three charges. Judge Alford arrested judgment on the possession of cocaine charge as a lesser included offense of PWISD.
Following a sentencing hearing, Judge Alford entered a judgment on defendant's PWISD conviction, sentencing defendant for a class H felony with a prior record level of IV to a term of eight to 19 months imprisonment. The trial court marked the box stating: “The Court ... makes no written findings because the term imposed is ... in the presumptive range.” With respect to defendant's delivery of cocaine conviction, the trial court entered a judgment indicating that defendant was being sentenced for a class G felony with a prior record level of IV to a term of 19 to 32 months imprisonment. Again, the trial court marked the box stating: “The Court ... makes no written findings because the term imposed is ... in the presumptive range.” The trial court ordered that defendant's sentence for delivery of cocaine was to run consecutively to his sentence for PWISD. Defendant filed a pro se handwritten “MOTION TO APPEAL” on 13 August 2013 with the Nash County Superior Court.
On 8 October 2013, the North Carolina Department of Public Safety (“DPS”) informed the trial court in writing that with respect to defendant's sentence for PWISD, the “[m]inimum sentence appears to be outside the permissible range for the Class/Prior Record Level/Disposition marked.” With respect to defendant's sentence for delivery of cocaine, the DPS letter stated that “the class does not correspond with the offense description given.”
Following receipt of the DPS letter, the trial court held another sentencing hearing on 5 December 2013. At the hearing, Judge Sumner explained to defendant that his “job ... is to enter the corrected judgment that should have [been] entered when you were sentenced.” Defendant stated: “I really don't understand what's going on[,]” and, “I don't understand because I appealed [.]” Judge Sumner responded: “I have nothing to do with the appeal.... [Yours] is an incorrect judgment and I am going to fix it[.]”
Judge Sumner found defendant had a prior record level of IV. With regard to defendant's PWISD conviction, during the hearing, Judge Sumner sentenced defendant for a class H felony to a presumptive-range term of 11 to 23 months imprisonment. The amended judgment reflects this sentence. With respect to defendant's delivery of cocaine conviction, Judge Sumner did not impose a sentence during the hearing but, in the amended judgment, sentenced defendant for a class H felony to a presumptive-range term of 11 to 23 months to run consecutive to his PWISD sentence.
Defendant filed a timely and proper notice of appeal from Judge Sumner's amended judgment on 19 December 2013. Defendant also filed a petition for writ of certiorari on 23 May 2014 in which he asked this Court to hear his appeal notwithstanding any deficiencies in his 13 August 2013 “MOTION TO APPEAL.”
Discussion
Defendant first argues that Judge Sumner had no authority to resentence him for his PWISD and delivery of cocaine convictions. He contends that his “MOTION TO APPEAL” divested the trial court of jurisdiction over his case. “Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” State v. Herman, 221 N.C.App. 204, 209, 726 S.E.2d 863, 866 (2012).
“The general rule is that the jurisdiction of the trial court is divested when notice of appeal is given, except that the trial court retains jurisdiction for matters ancillary to the appeal, including settling the record on appeal.” State v. Davis, 123 N.C.App. 240, 242, 472 S.E.2d 392, 393 (1996). We must first determine whether defendant's “MOTION TO APPEAL” was in fact a notice of appeal.
Rule 4(a) of the Rules of Appellate Procedure provides that notice of appeal from a criminal case may be taken by “(1) giving oral notice of appeal at trial, or (2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment or order[.]” Such written notice
shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record.
N.C.R.App. P. 4(b).
However, even if a written notice of appeal does not technically comply with Rule 4, “ ‘[w]e may liberally construe a [purported] notice of appeal ... to determine whether it provides jurisdiction.’ “ Stephenson v. Bartlett, 177 N.C.App. 239, 241, 628 S.E.2d 442, 443 (2006) (quoting Von Ramm v. Von Ramm, 99 N.C.App. 153, 156, 392 S.E.2d 422, 424 (1990) ). In other words,
“if a party technically fails to comply with procedural requirements in filing papers with the court, the court may determine that the party complied with the rule if the party accomplishes the ‘functional equivalent’ of the requirement.”
Id., 628 S.E.2d at 443–44 (quoting Von Ramm, 99 N.C.App. at 157, 392 S.E.2d at 424 ).
Here, defendant wrote a note to the superior court:
My name is Robert Earl Murphy 01–012831[.] I had a jury trial I was sentence [sic] on Aug 6[.] I was told to writ [sic] you to fine [sic] out about an Apeal [sic][.][E]verybody saids [sic] I have 10 days[.] I need to know because my people need to know so they can get me a new Lawyer[.][G]et back to me Asacp [sic][.]
The superior court received the note 13 August 2013. A notation at the bottom of the note, apparently by an employee of the Nash County Superior Court, indicates that the process of filing a notice of appeal was explained to defendant on 13 August 2013. After being explained how to appeal his case defendant filed a “MOTION TO APPEAL” that same day that stated: “TO THE CLERK OF COURT, PLEASE ACCEPT THIS LETTER AS MY MOTION TO APPEAL CASE # 12CRS50961. Robert Earl Murphy /s/ Robert Murphy.”
The State contends that “petitioner failed to comply with the mandates of Rule 4(a) ” because “[p]etitioner ... failed to timely file a proper notice of appeal.” Based on this, and without further argument, the State suggests that defendant's “MOTION TO APPEAL” “did not constitute a proper notice of appeal.” Defendant acknowledges that his “MOTION TO APPEAL” “did not technically comply with ... Rule 4.” Indeed, although his “MOTION TO APPEAL” was timely filed in Nash County Superior Court, specified the correct judgment to be appealed, and was signed by defendant while he was apparently seeking new counsel, the “MOTION TO APPEAL” did not specify the “court to which appeal is taken.” N.C.R.App. P. 4(b).
Nonetheless, it is evident from defendant's note requesting help to file a pro se appeal and his “MOTION TO APPEAL” that defendant intended his “MOTION TO APPEAL” to be a notice of appeal. Further, defendant's failure to specify this Court as the one to which he was appealing was not fatal. See State v. Rouse,––– N .C.App. ––––, ––––, 757 S.E.2d 690, 692 (2014) (explaining “ ‘defendant's intent to appeal is plain, and since this Court is the only court with jurisdiction to hear defendant's appeal, it can be fairly inferred defendant intended to appeal to this Court’ “ (quoting State v. Ragland,–––N.C.App. ––––, ––––, 739 S.E.2d 616, 620, disc. review denied,––– N.C. ––––, 747 S.E.2d 548 (2013) )).
Additionally, even though service of the notice of appeal “ ‘is jurisdictional,’ “ State v. Williams,––– N.C.App. ––––, ––––, 761 S.E.2d 662, 664 (2014) (quoting Smith v. Smith, 43 N.C.App. 338, 339, 258 S.E.2d 833, 835 (1979) ), the State waived the service requirement by failing to raise the issue at the trial level or in this appeal. See id.at ––––, 761 S.E.2d at 664 (“ ‘[W]here the appellee failed, by motion or otherwise, to raise [an] issue as to service of notice in either the trial court or in this Court and has proceeded to file a brief arguing the merits of the case, ... [the appellee] has waived service of notice [of appeal.]” ’ (quoting Hale v. Afro–Am. Arts, Int'l, 110 N.C.App. 621, 626, 430 S.E.2d 457, 460 (Wynn, J., dissenting), rev'd for reasons stated in dissenting opinion, 335 N.C. 231, 436 S.E.2d 598 (1993) )).
Liberally construed, defendant's “MOTION TO APPEAL” functioned as a notice of appeal and, consequently, divested the trial court of jurisdiction over his case. We must now determine whether, after defendant gave notice of appeal by his “MOTION TO APPEAL,” the trial court retained jurisdiction to amend the judgments to correct the errors in defendant's sentences.
Following an appeal, a trial court may exercise its “inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakesor supply defects or omissions therein.” Davis, 123 N.C.App. at 242–43, 472 S.E.2d at 393 (emphasis added). “ ‘[T]he court is only authorized to make the record correspond to the actual facts and cannot, under the guise of an amendment of its records, correct a judicial error[.]’ “ Id.at 243, 472 S.E.2d at 394 (quoting State v. Cannon, 244 N.C. 399, 404, 94 S.E.2d 339, 342 (1956) ).
Defendant argues that the trial court made non-clerical errors when it originally sentenced him for his delivery of cocaine and PWISD convictions. We agree that both sentences were erroneous. The State concedes, and we agree, that the initial sentence for delivery of cocaine was invalid because delivery of cocaine is a class H felony rather than a class G felony as Judge Alford stated in the original judgment. SeeN.C. Gen.Stat. § 9095(a)(1) and (b)(1) (2013). In addition, defendant acknowledges, and we agree, that his original sentence for PWISD was in the mitigated range even though the trial court made no mitigated findings on the judgment as is required for a mitigated-range sentence. SeeN.C. Gen.Stat. § 90–95(a)(1) and (b)(1) ; N.C. Gen.Stat. § 15A–1340.17(c) and (d) (2013).
Following defendant's notice of appeal, the trial court had jurisdiction to correct the sentences only if the errors can be considered clerical. “ “ ‘Clerical error” has been defined ... as: An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.’ “ Rudder v. Rudder,–––N .C.App. ––––, ––––, 759 S.E.2d 321, 326 (2014) (quoting State v. Jarman, 140 N.C.App. 198, 202, 535 S.E.2d 875, 878 (2000) ).
At defendant's original sentencing hearing Judge Alford determined defendant had a prior record level of IV. With regard to defendant's delivery of cocaine conviction, Judge Alford stated: “[I]t's a Class G Felony.... [T]he Court makes no written findings because the term imposed is within the presumptive range. The Court orders that he be in prison for a term not less than 19 no more than 32 months[.]” As to defendant's PWISD conviction, Judge Alford stated: “[T]he Court makes no written findings for a term imposed in the presumptive range,” and, “[T]hat's a Class H Felony[.][H]e will be in prison for a term not less than 8 no more than 19 months[.]”
This record reflects that, at the original sentencing hearing, the trial judge imposed sentences for defendant's PWISD and delivery of cocaine convictions based on a misunderstanding of applicable sentencing law. Because these mistakes were accurately reflected in the original written judgments, “the amended judgments do not accurately reflect the actual proceedings and, therefore, were not a proper exercise of the court's inherent power to make its records correspond to the actual facts and ‘speak the truth.’ To the contrary, it appears that the amended judgments impermissibly corrected a judicial error.” Davis, 123 N.C.App. at 243, 472 S.E.2d at 394. See State v. Yow, 204 N.C.App. 203, 206, 693 S.E .2d 192, 194 (2010) (classifying as non-clerical error imposition of 10 years of satellite-based monitoring on defendant as recidivist sex offender, rather than lifetime as statute required, when trial court announced at hearing defendant was recidivist and should receive 10 years of monitoring, and trial court indicated on judgment form that defendant was recidivist, did not check box for lifetime monitoring, and instead handwrote “10 years” as monitoring duration).
Because the errors in defendant's original sentencing for delivery of cocaine and PWISD were non-clerical, Judge Sumner was not at liberty to resentence defendant for those convictions. “[A]ccordingly,” the amended judgments “must be vacated.” Davis, 123 N.C.App. at 243, 472 S.E.2d at 394.
Nonetheless, in arguing the validity of the resentencing, the State contends that this case is “somewhat analogous” to State v.. Branch, 134 N.C.App. 637, 518 S.E.2d 213 (1999). In Branch,the defendant was convicted of “two counts each of breaking and entering and of larceny.” Id.at 639, 518 S.E.2d at 214. One offense was committed before 1 October 1994, and one was committed after that date. Id.The trial court consolidated the convictions and imposed a combined sentence of 12 to 15 months imprisonment for both offenses. Id.However, the trial court could not lawfully consolidate offenses committed before 1 October 1994 with those committed after that date. Id.at 640, 518 S.E.2d at 215. Upon discovering its mistake, the trial court resentenced defendant. Id.at 639, 518 S.E.2d at 214. The resentencing resulted in a sentence of 12 to 15 months for one offense followed by a sentence of 10 years for the other. Id., 518 S.E.2d at 21415. The defendant did not appeal until after he was resentenced. Id.at 638, 518 S.E.2d at 214.
In affirming the resentencing, Branchexplained that “[i]f a judgment is invalid as a matter of law, North Carolina Courts have the authority to vacate the invalid sentence and resentence the defendant accordingly, even if the term has ended.” Id.at 641, 518 S.E.2d at 216. Notwithstanding Branch'sholding, the language of Davisis unequivocal that when notice of appeal has been filed a trial court retains jurisdiction only to correct clerical errors. 123 N.C.App. at 242, 472 S.E.2d at 393 (“The general rule is that the jurisdiction of the trial court is divested when notice of appeal is given, except that the trial court retains jurisdiction for matters ancillary to the appeal....“ (emphasis added)).
In Davis,after being convicted of three felonies, the defendant pleaded guilty to attaining habitual felon status. Id.at 241, 472 S.E.2d at 393. In its written judgment, however, the trial court mistakenly vacated all three of defendant's felony convictions but let the habitual felon status stand, and judgment was entered against the defendant for habitual felon status. Id.Without at least one of those felonies, defendant's habitual felon sentence, by itself, was invalid. Id.at 243–44, 472 S.E.2d at 394. The defendant appealed and, while the appeal was pending, the trial court amended the record to reflect that only one felony had been arrested. Id.at 242, 472 S.E.2d at 393. On appeal, this Court held that the error in the defendant's original judgment was a non-clerical error and, therefore, the trial court had no authority to correct the trial court's judgments. Id.at 243, 472 S.E.2d at 393. Whether the trial court was correcting an invalid judgment or sentence was irrelevant to the holding in Davis.
Because, in this case, defendant was resentenced pending the appeal of his original judgment, the case is analogous to Davisrather than Branch.Consequently, we vacate the amended judgments. Further, since it is not disputed that the original sentence for delivery of cocaine is erroneous, we vacate the original judgment in 12 CRS 50961–52 and remand for resentencing.
With respect to the original PWISD sentence, defendant argues that the trial court erred in failing to find mitigating factors to support its mitigated sentence. Under the plain language of N.C. Gen.Stat. § 15A–1444(a1) (2013), defendant is entitled to challenge his PWISD sentence on appeal because his “minimum sentence ... does not fall within the presumptive range.”See State v. Mabry, 217 N.C.App. 465, 471, 720 S.E.2d 697, 702 (2011) (holding that, pursuant to N.C. Gen.Stat. § 15A–1444(a1), defendant may appeal issue of whether evidence supported mitigated sentence).
However, N.C. Gen.Stat. § 15A–1340.16(c) (2013) (emphasis added) provides that “[t]he court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion,it departs from the presumptive range of sentences specified in G.S. 15A–1340.17(c)(2).” The judgment, however, with the box checked indicating that Judge Alford had made no written findings because the term was in the presumptive range, indicated his intent to impose a presumptive-range term. The fact that the minimum sentence set out for defendant's PWISD sentence was in the mitigated range reflects an error regarding the permissible presumptive-range minimums rather than an exercise of Judge Alford's discretion to depart from the presumptive range. Therefore, the trial court was not required to find mitigating factors.
Nevertheless, the original sentence was not an authorized presumptive-range term, and we are, therefore, also compelled to vacate the sentence in 12 CRS 40961–51 and remand for resentencing. Because of our resolution of this appeal, we need not address defendant's remaining arguments.
Vacated in part; remanded for resentencing in part.
Chief Judge McGEE and Judge STROUD concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgments entered 6 August 2013 and 5 December 2013 by Judges Benjamin G. Alford and Quentin T. Sumner, respectively, in Nash County Superior Court. Heard in the Court of Appeals 25 September 2014.