State v Shaw, 151 NC App 751 (02-42) 08/06/2002

Appeal by defendant from order entered 16 May 2001 by Judge Timothy S. Kincaid in Caldwell County Superior Court. Heard in the Court of Appeals 29 July 2002.

Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.

BIGGS, Judge.

    When defendant's case originally came on for trial, he was indicted on ten counts of statutory rape, eleven counts of statutory sexual offense and twenty-one counts of indecent liberties with a minor. He had various other charges also pending against him at that time, including a charge of assault with a deadly weapon (99 CRS 9659). On 10 October 2000, defendant pled guilty pursuant to a plea arrangement to one count of statutory rape (99 CRS 9638, count 1) and one count of indecent liberties with a child (99 CRS 9648, count 2). Under the terms of the plea arrangement, sentencing would be in the trial court's discretion. The State agreed to “dismiss[] all other counts on a list attachedhereto,” and the attached list contained forty separate counts labeled as either indecent liberties or statutory rape/sex offense. After finding one factor in mitigation, the trial court on 10 October 2000 imposed two consecutive sentences with a combined minimum term of 157 months and a combined maximum term of 198 months.
    On 12 January 2001, the State filed a motion to correct a scribner's error in the transcript of plea. The State alleged that the wrong file number was provided for the final count on the list attached to the transcript of plea. Rather than being file number 99 CRS 9659, count 2, the State asserted the final count should have been file number 99 CRS 9658, count 2. In an amended motion filed on 22 January 2001, the State also requested that the trial court reinstate file number 99 CRS 9659 which was a felonious assault charge. On 16 May 2001, Judge Kincaid reviewed the State's motion in chambers and entered an order which changed the final count on the list to show file number 99 CRS 9658, count 2, indecent liberties. In addition, the order reinstated file number 99 CRS 9659. Neither defendant nor his trial counsel was present when the order was entered. From the trial court's order, defendant appeals.
    On 15 November 2001 the prosecutor and defendant's appellate counsel filed in this Court a “Joint Motion to Set Aside Order of the Trial Court and Remand for Hearing.” This Court entered an order on 3 December 2001 dismissing the joint motion and ordering the State to proceed with settling the Record on Appeal.    We note initially that defendant has no right to appeal from a guilty plea, and we therefore allow the State's motion to dismiss defendant's appeal. N.C.G.S. § 15A-1444(e) (2001). In light of the issue presented, we elect to treat defendant's purported appeal as a petition for writ of certiorari and grant the petition. See N.C.R. App. P. 21; See State v. Jarman, 140 N.C. App. 198, 535 S.E.2d 875 (2000).
    The trial court has the authority to correct clerical errors so that its records “speak the truth.” State v. Dixon, 139 N.C. App. 332, 337, 533 S.E.2d 297, 302 (2000). However, a defendant is entitled to receive the benefit of his bargain when his plea of guilty is given in consideration for a prosecutor's promise. State v. Wall, 348 N.C. 671, 502 S.E.2d 585 (1998). From the record before this Court it is clear that count 2 of file number 99 CRS 9658 is not addressed by defendant's transcript of plea. It is also clear that file number 99 CRS 9659, a one count indictment, does not contain a second count. What cannot be resolved from the record before this Court is the extent of the scribner's error in the list attached to the transcript of plea. Moreover, the State concedes that “it is questionable whether defendant received proper notice of the State's motion or an opportunity to be heard.”
    We therefore vacate the 16 May 2001 order and remand this matter for a hearing to determine whether the plea arrangement was for both file number 99 CRS 9658 (count 2) and file number 99 CRS 9659 to be on the attached list, whether the parties intended for only one of the two charges to be on the attached list, or for suchother relief as determined by the trial court. See State v. Martin, 18 N.C. App. 398, 197 S.E.2d 58, cert. denied, 283 N.C. 757, 200 S.E.2d 652 (1973). It is essential that defendant and appointed counsel be given notice and an opportunity to be heard prior to the trial court ruling upon the State's motion to correct the transcript of plea. See id. at 402, 197 S.E.2d at 60.
    Vacated and remanded for hearing.
    Judges WALKER and THOMAS concur.
    Report per Rule 30(e).

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