Opinion
NO. COA10-1536 No. 08 CRS 51909
12-06-2011
STATE OF NORTH CAROLINA v. FELIPE ALFARO RICO
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
Sampson County
On writ of certiorari from judgment and order entered 18 March 2010 by Judge Russell J. Lanier, Jr., in Sampson County Superior Court. Heard in the Court of Appeals 26 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen N. Bolton, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
CALABRIA, Judge.
Felipe Alfaro Rico ("defendant") appeals from (1) a judgment entered upon his guilty plea to voluntary manslaughter and (2) an order denying his motion for appropriate relief ("MAR"). We vacate defendant's judgment and the order denying his MAR and remand for further proceedings.
I. Background
On 29 September 2008, defendant was indicted on the charge of first degree murder in Sampson County Superior Court. On 9
July 2008, the State served defendant's counsel with notice of its intention to prove the existence of the aggravating factor that defendant used a deadly weapon at the time of his alleged crime.
On 1 October 2008, the State and defendant entered into a plea agreement whereby defendant would plead guilty to the lesser offense of voluntary manslaughter and admit to the aggravating factor in exchange for a dismissal of the first degree murder charge. The parties also agreed that "defendant shall receive an active sentence of not less than 84 months nor more than 110 months in the NC Dept. of Corrections." Defendant stipulated that he had three prior convictions and that he was a prior record level II offender for felony structured sentencing purposes. Under the sentencing grid which was in effect at the time defendant committed his offense, defendant's agreed upon sentence was in the aggravated range.
Defendant consented to being tried for this offense upon a bill of information.
Judge W. Russell Duke, Jr., accepted defendant's guilty plea that same day and entered a judgment sentencing defendant to a minimum of 84 months to a maximum of 110 months in the North Carolina Department of Correction. The judgment indicated that the sentence was in the presumptive range and was imposed
"pursuant to a plea arrangement as to sentence under Article 58 of G.S. Chapter 15A." Judge Duke stated that he made no findings regarding any aggravating or mitigating factors "because the prison term imposed is pursuant to a plea arrangement." In addition, Judge Duke recommended that defendant pay restitution in the amount of $5,052.75.
On 27 August 2009, defendant filed a pro se MAR in Sampson County Superior Court. The MAR argued (1) that the State improperly required defendant to admit the aggravating factor of using a deadly weapon at the time of the crime because that aggravating factor was unavailable for the offense of voluntary manslaughter; (2) that the aggravated sentence violated defendant's rights pursuant to Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004); and (3) that the State failed to provide defendant with adequate notice of the aggravating factor as required by N.C. Gen. Stat. § 15A-1340.16 (a6). Defendant moved for a new sentencing hearing and the appointment of counsel to assist him in pursuing his MAR.
Defendant was not appointed counsel and no hearing was conducted on defendant's MAR. Instead, on 19 March 2010, Judge Russell J. Lanier, Jr., after reviewing defendant's motion and the court file, entered an order which denied defendant's MAR. Judge Lanier's order indicated that defendant's judgment contained a clerical error in that it imposed an aggravated sentence without finding the existence of any aggravating factor. Judge Lanier then entered an amended judgment which included a finding in aggravation consistent with the terms of the plea agreement. The amended judgment again sentenced defendant to an active term of 84 to 110 months. The remainder of Judge Duke's judgment, including the portion recommending restitution, remained undisturbed.
On 18 May 2010, defendant filed a pro se petition for writ of certiorari to this Court, seeking review of Judge Lanier's order denying his MAR and the amended judgment. This Court granted defendant's petition on 1 June 2010.
II. Motion for Appropriate Relief
Defendant argues, and the State concedes, that the trial court erred by denying his MAR. Specifically, defendant contends that Judge Duke's imposition of an aggravated sentence was improper. We agree.
The imposition of an aggravated sentence is governed by the Structured Sentencing Act, and the Act contains multiple requirements which must be met before an aggravated sentence can be imposed. First, "Structured Sentencing provides specifically and without exception that a trial court must make written findings when deviating from the presumptive sentence . . . ." State v. Bright, 135 N.C. App. 381, 383, 520 S.E.2d 138, 140 (1999). In addition, "[o]nce the trial court f[inds]
aggravating and mitigating factors, it [i]s required to weigh them pursuant to N.C. Gen. Stat. 15A-1340.16(b)." State v. Gillespie, _ N.C. App. _, _, 707 S.E.2d 712, 715 (2011). Even in cases where only aggravating factors are present, as in the instant case, N.C. Gen. Stat. § 15A-1340.16(b) does not mandate that the trial court sentence a defendant in the aggravated range. Instead, the statute states that "[i]f aggravating factors are present and the court determines they are sufficient to outweigh any mitigating factors that are present, it may impose a sentence that is permitted by the aggravated range." N.C. Gen. Stat. § 15A-1340.16(b) (2009) (emphasis added). Thus, the determination of whether an aggravated sentence is appropriate rests solely within the sound discretion of the sentencing judge. See Gillespie, _ N.C. App. at _, 707 S.E.2d at 714.
A. The Initial Judgment
In the instant case, defendant, pursuant to a plea agreement with the State, pled guilty to voluntary manslaughter, admitted the existence of the aggravating factor that he used a deadly weapon at the time of the crime, and agreed to the imposition of a sentence which was in the aggravated range. At sentencing, Judge Duke conducted a colloquy with defendant regarding the aggravating factor that established the aggravating factor in compliance with N.C. Gen. Stat. § 15A-1022.1 (2009) and then imposed an aggravated sentence.
However, Judge Duke failed to make the required findings of any aggravating factors and also failed to exercise his discretion in determining whether an aggravated sentence was appropriate. Judge Duke stated at the sentencing hearing that he made no findings because "the prison term imposed is pursuant to a plea arrangement." The judgment entered by Judge Duke also indicated that defendant's sentence was imposed "as a plea arrangement as to sentence" under N.C. Gen. Stat. § 15A-1023 (2011).
This Court has previously stated that the presence of a plea agreement as to sentence does not vitiate the requirement that the trial court make written findings when deviating from the presumptive sentencing range under the Structured Sentencing Act. See Bright, 135 N.C. App. at 382-83, 520 S.E.2d at 139. Likewise, there is nothing in N.C. Gen. Stat. § 15A-1340.16 which would allow a sentencing judge, on the basis of a plea agreement, to fail to exercise his discretion as to whether an aggravated sentence is appropriate.
Since the judgment entered by Judge Duke did not contain the required findings to support an aggravated sentence and the record reflects that Judge Duke failed to exercise his discretion in determining whether an aggravated sentence was appropriate, defendant's sentence was invalid as a matter of law and must be vacated.
B. The Amended Judgment
In his order denying defendant's MAR, Judge Lanier indicated that Judge Duke's errors were merely clerical and attempted to correct defendant's judgment by adding the required finding of an aggravating factor in an amended judgment. However,
in the exercise of power to amend the record of a court, the 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 or incorporate anything in the minutes except a recital of what actually occurred.State v. Bullock, 183 N.C. App. 594, 600, 645 S.E.2d 402, 406 (2007). In the instant case, we have already determined that Judge Duke's failure to make any findings or exercise any discretion when imposing defendant's aggravated sentence was error. Judge Lanier could not correct this judicial error by treating it as a mere clerical error and therefore, we must also vacate the denial of defendant's MAR and the "amended" judgment.
This disposition makes it unnecessary to address defendant's argument that using a deadly weapon at the time of the crime cannot be used as an aggravating factor for the offense of voluntary manslaughter. However, we note that the State concedes, and we agree, that the use of this aggravating factor would be improper in the instant case.
III. Restitution
Defendant argues that the trial court erred by ordering restitution because the amount of restitution was not supported by competent evidence. Since defendant's judgment has been vacated, the restitution order has necessarily also been vacated. Nevertheless, we address defendant's restitution argument for directional purposes, as we agree that the trial court erred by ordering restitution.
We note that defendant's judgment ordered that "upon completion of the term of imprisonment imposed herein, the defendant shall be delivered over to the custody of the Immigration [and] Custom[s] Enforcement or it's [sic] successor, for the immediate deportation to the Republic of Mexico." This suggests that, as a practical matter, the restitution recommendation may be unenforceable because it is a condition of post-release supervision or work release.
Initially, we address the State's contention that this issue is not properly before this Court. The State argues that defendant has no right to appeal the restitution recommendation under N.C. Gen. Stat. § 15A-1444, which sets out a criminal defendant's limited right to appeal following a guilty plea. This statute states, in relevant part:
(a1) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.N.C. Gen. Stat. § 15A-1444(a1) (2009). The State, in its brief, cites two unpublished cases, State v. Chiles, _ N.C. App. _, 694 S.E.2d 522, 2010 N.C. App. LEXIS 832, 2010 WL 1957867 (2010)(unpublished) and State v. Harris, 191 N.C. App. 400, 663 S.E.2d 13, 2008 N.C. App. LEXIS 1337, 2008 WL 2736673 (2008)(unpublished), in which this Court dismissed previous attempts to challenge restitution orders by a defendant who pled guilty. As these opinions were unpublished, they have no precedential authority. See N.C.R. App. P. 30(e) (2010).
By contrast, in a published case, State v. Davis, this Court determined that it had jurisdiction to address the defendant's appeal of a restitution order even though the defendant had pled guilty, when the defendant had appealed his aggravated sentence as a matter of right under N.C. Gen. Stat. § 15A-1444 (a1). _ N.C. App._, _, 696 S.E.2d 917, 921-22 (2010). While defendant's appeal in the instant case is pursuant to a writ of certiorari, N.C. Gen. Stat. § 15A-1444(a1) would also have allowed defendant to appeal his sentence as a matter of right, and thus, this case is materially indistinguishable from Davis. As a result, pursuant to Davis, defendant's guilty plea does not preclude review of the trial court's restitution recommendation.
This Court has repeatedly stated that "[t]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing." State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007) (internal quotations and citation omitted). In the instant case, the State concedes that the restitution recommendation was not supported by competent evidence. As a result, we vacate the restitution recommendation that defendant pay $5,052.75.
IV. Breach of the Plea Agreement
Since we have vacated defendant's sentence, which was imposed pursuant to a plea agreement, we must determine the appropriate disposition on remand. "Although a plea agreement occurs in the context of a criminal proceeding, it remains contractual in nature. A plea agreement will be valid if both sides voluntarily and knowingly fulfill every aspect of the bargain." State v. Rodriguez, 111 N.C. App. 141, 144, 431 S.E.2d 788, 790 (1993)(internal citation omitted). "Where a defendant elects not to stand by his portion of a plea agreement, the State is not bound by its agreement to forego the greater charge." State v. Fox, 34 N.C. App. 576, 579, 239 S.E.2d 471, 473 (1977).
In the instant case, the State and defendant entered into a plea agreement whereby defendant agreed to plead guilty to the lesser offense of voluntary manslaughter, admit to an aggravating factor, and receive a sentence in the aggravated range. While the plea agreement improperly used the aggravating factor of using a deadly weapon at the time of the crime to elevate defendant's sentence, this portion of the agreement was material to the plea agreement as a whole. Defendant may not retain only the favorable terms of the plea agreement while repudiating the unfavorable terms. Consequently, the plea agreement must be set aside.
Since defendant did not fulfill his portion of the plea agreement, Fox instructs that the State, on remand, is free to reinstate defendant's original charge:
If the State elects to do so, the district attorney may send bills of indictment to the Grand Jury charging defendant with [the original charges], as were charged in the two original arrest warrants. If one or more true bills are returned, the State may try defendant upon the [original] charges or any included lesser offenses.Id. at 579, 239 S.E.2d at 473. However, the State is not bound to do so. A significant difference between Fox and the instant case is that here, defendant has challenged his plea-bargained sentence via a post-conviction MAR. N.C. Gen. Stat. § 15A-1415 allows a defendant to challenge an invalid sentence by means of a post-conviction MAR "at any time," and this provision implicates special concerns in this context. As noted by the Florida District Court of Appeal,
due to the fact that a post-conviction motion may be raised and ruled upon years after imposition, the state may no longer have the witnesses and other evidence necessary to pursue a trial after a defendant successfully has his judgment and sentence vacated. Therefore, in a situation involving a reduction of sentence in contravention of the plea bargain, the state should be given the option of either agreeing that both the judgment and sentence should be vacated and taking the defendant to trial on all original charges, orJolly v. State, 392 So. 2d 54, 56 (Fla. Dist. Ct. App. 5th Dist. 1981); see also State v. Boswell, 37 P.3d 40, 44-45 (Kan. Ct. App. 2001); State v. Jackson, 860 P.2d 772, 777 (N.M. Ct. App. 1993).
agreeing that only the excessive sentence should be vacated, while having the judgment stand and allowing the defendant to be resentenced . . . .
We adopt the Jolly framework for the instant case. On remand, the State may choose to have defendant's judgment vacated in full and re-indict defendant for first degree murder, or it may choose to have defendant resentenced on his guilty plea to voluntary manslaughter. However, regardless of which option the State chooses, N.C. Gen. Stat. § 15A-1335, which forbids a defendant whose sentence has been successfully challenged from receiving a more severe sentence for the same offense or conduct on remand, even when the challenged sentence was the result of a plea agreement, will be applicable. State v. Wagner, 356 N.C. 599, 602, 572 S.E.2d 777, 779 (2002).
V. Conclusion
Defendant's original aggravated sentence was invalid as a matter of law because Judge Duke failed to make any findings as to aggravating factors and failed to exercise his discretion in determining whether an aggravated sentence was appropriate, as required by the Structured Sentencing Act. Since Judge Duke's errors were errors of law, Judge Lanier could not correct them under the guise of amending a clerical error. Consequently, defendant's initial and amended judgments and Judge Lanier's order denying defendant's MAR are vacated.
Since defendant could appeal his sentence as a matter of right, he was also permitted to challenge the trial court's restitution recommendation pursuant to Davis. The restitution recommendation was not supported by competent evidence and must also be vacated.
Defendant did not fulfill his portion of the plea agreement and as a result, the plea agreement must be set aside. Because defendant challenged his sentence by a post-conviction MAR, the State has the option on remand to either re-indict defendant on his original charge or to have defendant resentenced on his guilty plea.
Vacated and remanded.
Judges ELMORE and STEELMAN concur.