STATE OF NORTH CAROLINA
v.
CHRISTOPHER CORNELIUS TAYLOR,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Richard E. Jester for the defendant-appellant.
WYNN, Judge.
In this appeal, we are constrained to hold under North
Carolina law, the trial court erred by entering three judgments on
habitual felony status, and sentencing defendant consecutively upon
that status alone. See State v. Patton, 342 N.C. 633, 466 S.E.2d
708 (1996). Accordingly, we vacate the judgments entered by the
trial court purporting to sentence defendant on obtaining the
status of habitual felon.
The underlying facts on appeal show that on 23 March 2001,
defendant pled guilty to ten counts of obtaining property by false
pretenses, six counts of felonious breaking and entering, six
counts of larceny after breaking and entering, three counts of
felonious possession of stolen goods and six counts of misdemeanor
possession of stolen goods (hereinafter referred to as defendant's“substantive convictions”). Additionally, the State indicted
defendant on twenty counts of being an habitual felon to which he
also pled guilty.
Following his pleas, the trial judge conducted a sentencing
hearing on 22 October 2001 and entered the following judgments:
First Judgment: 01CRS2723, Judgment and Commitment on
“Habitual Felon” described as a Class C felony. Sentence
of 151 months to a maximum term of 191.
Second Judgment: 01CRS2724, Judgment and Commitment on
“Habitual Felon” described as a Class C felony. Sentence
of 151 months to a maximum term of 191, to begin at the
expiration of the sentence imposed in 01CRS2723.
Third Judgment: 01CRS2725, Judgment and Commitment on
“Habitual Felon” described as a Class C felony. Sentence
of 151 months to a maximum term of 191, to begin at the
expiration of the sentence imposed in 01CRS2724.
Fourth Judgment: 01CRS002726, Judgment and Commitment
consolidating the ten counts of false pretense, six
counts of felonious breaking and entering, six counts of
larceny, three counts of felonious possession of stolen
goods, six counts of misdemeanor possession of stolen
goods, and eighteen counts of habitual felony including
01CRS0025. As to each of the felonies listed under this
judgment, the trial judge indicated that the punishment
class was enhanced to Class C as provided for under our
habitual felony statute. Sentence of 151 months to a
maximum term of 191, to begin at the expiration of the
sentence imposed in 01CRS2725.
Prior to being sentenced, defendant informed the court that he
was not on probation when these current crimes occurred. The trial
court disregarded defendant's statement and accepted the State's
contention that defendant was on probation at the time of these
crimes. However, on 24 October 2001, the State reported to the
trial court that it had “mistakenly asserted that defendant was on
probation at the time he committed the instant offenses.”
Accordingly, the trial judge reconsidered defendant's sentence andapparently amended the judgment with case number 01CRS2726 to be
re-designated as 01CRS2725 with the sentence in the amended
judgment to begin at the expiration of the sentence imposed in
01CRS2524. The intent as stated by the trial judge was to amend
defendant's judgments from four to three consecutive sentences.
Defendant appeals.
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Initially, we point out the imprudence of indicting a
defendant upon separate habitual felon indictments. In this case,
the State indicted defendant in twenty separate habitual felony
indictments, each setting forth the same three prior offenses. In
1996, our Supreme Court held that “a separate habitual felon
indictment is not required for each substantive felony indictment.”
State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 709
(1996)(rejecting the reasoning of the Court of Appeals that a one
to one correspondence between substantive felony indictments and
habitual felon indictments was required). One of the purposes of
the habitual felon indictment is “to provide notice to a defendant
that he is being prosecuted for his substantive felony as a
recidivist.” 342 N.C. at 636, 466 S.E.2d at 710. “A single
habitual felon indictment in compliance with § 14-7.3 provides
adequate notice of the State's intention to prosecute a defendant
as a recidivist, regardless of the number of substantive felonies
for which the defendant is being tried at that time. The statute
and our case law require nothing further.” Id. Thus, while the
State may choose to use multiple habitual felon indictments, ourSupreme Court only requires the use of a single indictment for all
substantive felonies.
Indeed, the apparent wisdom of the Supreme Court's reasoning
in Patton is borne out by the error committed in this case. Here,
by presenting twenty indictments to the trial court, the resulting
error of entering judgment only on the habitual felon status
ostensibly arose out of the mistaken handling of the individual
indictments as though each represented a separate crime. However,
it is well-recognized that,
Being an habitual felon is not a crime but is a status
the attaining of which subjects a person thereafter
convicted of a crime to an increased punishment for that
crime. The status itself, standing alone, will not
support a criminal sentence.
State v. Thomas, 82 N.C. App. 682, 683, 347 S.E.2d 494, 495 (1986).
On appeal, defendant correctly contends the judgments based
only on attaining the status of habitual felon should be vacated
because the trial judge did not use the habitual felon status
finding to enhance the sentence on the substantive offense, but
rather, sentenced defendant for being a habitual felon only.
Unquestionably, the judgments of 01CRS002723, 01CRS002724 and
01CRS002725 (habitual felon judgment part) only refer to the
habitual felon status and do not contain substantive offenses that
could have been enhanced by that status. Accordingly, in light of
our case law holding this to be impermissible, we must vacate
judgments against defendant purporting to sentence him for having
attained the status of habitual felon.
The State in recognizing this fatal error responds in itsbrief that because each habitual felon indictment specifically
references one of the twenty-five underlying felonies, “the trial
court's intention presumably was that judgments reflect both the
habitual felon charge and the underlying charge.” Candidly the
State concedes, “This, however, was not effected in the judgment,
three of which indicates only the habitual felon charge and not the
accompanying underlying charge.” Thus, the State acknowledges that
“Defendant correctly asserts that being an habitual felon is a
status and not a crime, and that the habitual felon status standing
alone will not support a criminal sentence . . . Upon a conviction
as an habitual felon, the court must sentence the defendant for the
underlying felony as a Class C felon.” In sum, a trial court has
subject matter jurisdiction to sentence a defendant only upon his
criminal convictions, not upon his acquired status of being an
habitual felon which is not a crime. Rather, one who acquires the
status of being an habitual felon subjects himself only to having
the sentences of his current criminal convictions enhanced as a
Class C felon.
Nonetheless, the State suggests that we should construe this
error as clerical error and remand for correction. This we cannot
do. Indeed, “[a] court of record has the inherent power to make
its records speak the truth and, to that end, to amend its records
to correct clerical mistakes or supply defects or omissions
therein.” State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875,
878 (2000). However, “it cannot under the guise of an amendment of
its records, correct a judicial error.” Id. Most assuredly, atrial court's entry of judgment and sentence on a “non crime” is
not a clerical error. See State v. Gell, 351 N.C. 192, 218, 524
S.E.2d 332, 349 (2000)(determining there was an obvious clerical
error where the felony judgment findings of aggravating and
mitigating factors form was inconsistent with the trial court's
actual findings); State v. Westbrooks, 345 N.C. 43, 54-55, 478
S.E.2d 483, 490 (1996)(reviewing the record and transcript to
determine whether a clerical error existed); State v. Thomas, _____
N.C. App. _____, 570 S.E.2d 142, 151 (2002)(finding a clerical
error existed where the trial court's actual findings were
inconsistent with the AOC form). Rather, the error in this case
was judicial in nature, not clerical.
The record indicates that in sentencing defendant to four
consecutive terms of 151 to 191 months, the trial court stated:
And the Court takes four of the habitual
felons. He has a sentence of 151 months
minimum, 191 months maximum to begin at the
expiration. That totals to about 604 months
minimum, 764 months maximum. And all the
other charges are consolidated with the last
one.
Two days later when the prosecutor reported that he had incorrectly
informed the trial court that defendant was on probation when he
committed the offenses, the trial court amended the judgment in 01
CRS 002725 and sentenced defendant to three consecutive terms of
151 to 191 months stating:
So he was not on probation and for the record
the Court did take that into consideration in
the sentence. I'll ask that the record
reflect the numerous charges on the calendar
involving Christopher Taylor, but more
important 20 counts of habitual felon. 01 CRS2723 through 2742. As I recall the Court gave
him -- I gave him four consecutive sentences
on four habitual felons 151 to 191.
Thus, not only does the error of entering judgment on being an
habitual felon appear on the face of each judgment; the trial
court's statements explicitly indicate the intent to enter
judgments and sentences on the status of being an habitual felon.
Accordingly, the record does not support the State's contention
that the judgments contained clerical errors. “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'”. State v.
Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878; see e.g., State v.
Linemann, 135 N.C. App. 734, 522 S.E.2d 781 (1999)(lower court
corrected clerical errors in the judgment by correcting the
defendant's race and correcting the class of the misdemeanor);
State v. Hammond, 307 N.C. 662, 300 S.E.2d 361 (1983)(clerical
error existed where the felony judgment and commitment form listed
the crime of robbery with a deadly weapon as a Class C felony,
whereas in fact it was a Class D felony).
In the case sub judice, neither the transcript nor the record
reveal clerical errors; rather, the judgment reflects the trial
court's actual judgment and sentence upon the purported offenses of
“habitual felon” as stated in the transcript. Accordingly, the
record shows convincingly that the entry of judgments upon the
purported convictions of “habitual felon”, was not a result of a
clerical error. In sum, we vacate the judgments and sentences in cases numbers
01CRS002723, 01CRS002724, and that part of 01CRS002725 which
purports to be a judgment alone on attaining the status of habitual
felon. However, we find no error in the amended case number
01CRS002725. Thus, the defendant's sentence of 151 months to 191
months of maximum imprisonment under amended case number 01CRS002725
is affirmed. Defendant's remaining contentions on appeal are
without merit.
Vacated in part, no error in part.
Judges BRYANT and GEER concur.
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