STATE OF NORTH CAROLINA
v
.
Wake County
No. 00CRS75861<
br>
DEBBIE HARRIS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Claud R. Whitener, III, for the State.
James M. Bell for defendant-appellant.
HUNTER, Judge.
Debbie Harris (“defendant”) pled guilty to one count of felony
larceny in January 2001. Judge Donald W. Stephens imposed a
suspended sentence of nine to eleven months' imprisonment and
placed defendant on supervised probation for a period of thirty-six
months. A report filed 29 March 2001 charged defendant with
several probation violations, including missed curfews, failure to
participate in court-ordered drug treatment, and testing positive
for cocaine on three occasions. Defendant admitted these
violations at a hearing on 14 May 2001. Judge Jones revoked
probation and activated defendant's sentence. Defendant gave
notice of appeal in open court. We affirm but remand for
corrections in the judgment. Counsel appointed to represent defendant on appeal has filed
an Anders brief indicating that he is unable to identify an issue
with sufficient merit to support a meaningful argument for relief
on appeal. He asks that this Court conduct its own review of the
record for possible prejudicial error. Counsel has filed
documentation with the Court showing that he has complied with the
requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d
493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), and
State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising
defendant of her right to file written arguments with the Court and
providing her with a copy of the documents pertinent to her appeal.
Defendant has filed no additional arguments of her own with this
Court, and a reasonable time for such arguments has passed.
In accordance with Anders, we have fully examined the record
to determine whether any issues of arguable merit appear therefrom
and whether the appeal is wholly frivolous. Although we conclude
that the appeal is frivolous, we have found two clerical errors on
the written judgment which warrant correction. First, a
handwritten “x” on the judgment erroneously indicates that “[i]n
the original Judgment Suspending Sentence, the Court sentenced the
defendant . . . from the minimum durations based upon the Findings
of Aggravating and Mitigating Factors.” Judge Stephens' original
judgment clearly reflects that defendant's suspended sentence was
within the presumptive range and was made without findings as to
aggravating and mitigating factors. Second, the instant judgment
provides for an active sentence of seven to nine months, whichwould be from the mitigated range for defendant's class of offense
and prior record level. See N.C. Gen. Stat. § 15A-1340.16(c)
(1999). The hearing transcript reveals Judge Jones' intention to
activate the sentence originally imposed upon defendant, as
follows: “[T]he sentence of the Honorable Donald Stephens imposed
on 1-5-01 is hereby activated. The defendant is sentenced to a
term in the North Carolina Department of Corrections of not less
than 9, nor more than 11 months.” While we believe the record
conclusively establishes this discrepancy as a clerical error, we
note that a trial court may not substitute a mitigated sentence for
a presumptive sentence when revoking a defendant's probation. See
N.C. Gen. Stat. § 15A-1344(d1) (1999).
We affirm the decision of the trial court but remand with
instructions to correct the judgment “by striking the unsupported
notation that the trial court rendered findings of factors in
aggravation and mitigation,” State v. Hilbert, 145 N.C. App. 440,
446, 549 S.E.2d 882, 886 (2001), and by correcting the recorded
commitment to reflect the sentence of nine to eleven months
announced in open court. See State v. Lawing, 12 N.C. App. 21, 23,
182 S.E.2d 10, 11-12 (1971).
Affirmed; remanded with instructions.
Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
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