STATE OF NORTH CAROLINA
v. Johnston County
No. 01 CRS 50549
ERIC RANDALL JONES
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
James M. Bell, for defendant appellant.
McCULLOUGH, Judge.
On 8 May 2001, defendant, Eric Randall Jones, pled guilty
pursuant to a plea agreement to robbery with a dangerous weapon in
exchange for an active sentence of 48 to 65 months, consolidation
with a charge of misdemeanor larceny, and dismissal of other
pending charges. The trial court sentenced defendant in accordance
with the terms of the plea agreement to a minimum term of 48 months
and a maximum term of 65 months.
On 13 July 2001, the Combined Records section of the North
Carolina Department of Correction notified the Johnston County
Clerk of Superior Court that the judgment was incorrect, in that
the corresponding maximum term for a minimum term of 48 months was
67 months, not 65 months. The matter came before the JohnstonCounty Superior Court for resentencing on 2 October 2001.
Defendant's counsel appeared for the hearing and stated that
defendant objected to increasing the maximum term on the ground
that it amounted to double jeopardy. Counsel also stated that he
appeared for the hearing even though he had not been given notice
because he saw the matter on the trial calendar. He objected to
any resentencing without notice to defendant. Noting that
defendant's counsel handwrote on the transcript of plea the terms
and conditions of the plea, including the language that defendant
would receive a sentence of 48 to 65 months, the trial court
declared that defendant could not take advantage of an error on
behalf of his own lawyer. The trial court resentenced defendant
to a minimum term of 48 months and a maximum term of 67 months, and
defendant appealed.
The trial court ordinarily has the power to correct clerical
errors so its records may be accurate. State v. Dixon, 139 N.C.
App. 332, 337, 533 S.E.2d 297, 302 (2000). Nonetheless, our
appellate courts have held that, when the trial court imposes a
sentence mandated by a plea agreement, it may not correct or amend
the sentence without affording the defendant the opportunity to be
heard and to withdraw the plea. In State v. Wall, 348 N.C. 671,
502 S.E.2d 585 (1998), the defendant negotiated a plea agreement
providing that a sentence for burglary would run concurrently with
a sentence the defendant was already serving. Id. at 674, 502
S.E.2d at 587. This agreement was made in contravention of N.C.
Gen. Stat. § 14-52, which provided that any sentence for burglaryshall run consecutive to any sentence the defendant was serving.
The trial court originally sentenced the defendant in accordance
with the plea agreement, but subsequently amended the judgment to
conform with N.C. Gen. Stat. § 14-52. Id. at 673, 502 S.E.2d at
587. The Supreme Court held that, although the defendant was not
entitled to specific performance of an illegal agreement, he was
entitled to the opportunity to withdraw his plea. Id. at 676, 502
S.E.2d at 588. The Court vacated the judgment of the superior
court and remanded the matter for further proceedings. Id.
In Hamilton v. Freeman, 147 N.C. App. 195, 554 S.E.2d 856
(2001), appeal dismissed, disc. review denied, 355 N.C. 285, 560
S.E.2d 803 (2002), the North Carolina Department of Correction
modified inmates' sentences (entered pursuant to plea agreements)
in a manner that did not comply with statutory provisions. Id. at
198, 554 S.E.2d at 858. In accordance with Wall, this Court held
that the inmates were not entitled to specific performance of the
plea agreements but were entitled to return to court to regain the
position they held before entry of the plea agreements. Id. at
206, 554 S.E.2d at 862.
Based upon the foregoing authorities and the State's
concurrence, we conclude that the judgment must be vacated and the
matter remanded for a hearing at which defendant is present and is
afforded an opportunity to replead.
Vacated and remanded.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).
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