State v Winston, (02-1558) 07/01/2003

On Writ of Certiorari to review from judgments entered 5 August 1999 by Judge Donald W. Stephens in Superior Court, Wake County. Heard in the Court of Appeals 30 June 2003.

Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

Geoffrey W. Hosford for defendant-appellant.

WYNN, Judge.

    From his guilty plea to eight counts of robbery with a dangerous weapon, one count of attempted robbery with a dangerous weapon, and a habitual felon status, defendant appeals. On appeal, defendant contends the trial court erred by making various clerical errors in consolidating, enhancing, and identifying his offenses. As the State concedes, and as the record clearly reflects, the existence of these errors, we remand with orders for the trial court to correct the clerical errors.
    On 21 June 1999, defendant plead guilty to eight counts of robbery with a dangerous weapon and one count of attempted robbery with a dangerous weapon. Defendant also admitted his habitualfelon status. After finding two factors of mitigation and no factors of aggravation, the trial court sentenced defendant to two consecutive sentences within the presumptive range. Defendant subsequently filed a pro se motion for appropriate relief.
    At the evidentiary hearing on defendant's motion, the trial judge determined that the trial court erred because, despite finding two mitigating factors and no aggravating factors and that the mitigating factors outweighed the aggravating factors, the trial court sentenced defendant within the presumptive range, rather than the mitigated range. The trial judge concluded that defendant's sentence was “in excess of the authority authorized” by the Structured Sentencing Law.
    The trial judge determined that the trial court was bound by its original finding of a mitigated sentence. Defendant, subsequently, stipulated to a prior record level IV. Consistent with the original judgments, the offenses remained grouped into two judgments. In the first judgment, four armed robbery charges (99 CRS 31554-5, 99 CRS 31552 and 99 CRS 31558) were consolidated for judgment under the habitual felon indictment number 99 CRS 18801. In the second judgment, the trial court consolidated five armed robbery charges (99 CRS 31553, 31557, 31559-31561) for judgment under file number 99 CRS 31553. The trial court sentenced defendant to two consecutive terms of a minimum of 90 months and a corresponding maximum of 117 months from the mitigated range of punishment.
    Defendant filed a pro se petition for writ of certiorari withthis Court requesting review of the amended judgments. By order dated 7 September 2001, this Court allowed the petition. On appeal, defendant seeks remand to the trial court for correction of clerical errors in the judgment and commitment orders.
    First, defendant contends the trial court improperly sentenced defendant when it consolidated the four substantive offenses under the habitual felon indictment file number 99 CRS 18801. As the State concedes this error, and the record clearly reflects this error, we agree.
    “Being [a] habitual felon is not a crime but is a status. The status itself, standing alone, will not support a criminal sentence.” State v. Penland, 89 N.C. App. 350, 351, 365 S.E.2d 721, 722 (1988). In Penland, this Court held that the trial court erred in sentencing defendant in a separate judgment and commitment as an habitual felon and vacated the judgment finding defendant guilty of being an habitual felon. Defendant, however, does not argue that he was only sentenced for being an habitual felon in violation of Penland since defendant notes that the trial court consolidated the habitual felon charge with the four substantive offenses of robbery with a dangerous weapon. Rather, defendant asserts the trial court “technically” sentenced him for being a habitual felon by using the habitual felon indictment file number instead of using the file number from one of the four substantive felonies. He asks this Court to remand this case to the trial court to correct the file number on the judgment. The State agrees that “it would appear that a mere technical citation to a filenumber is all that occurred” and is not opposed to remand the case to the trial court for correction of the citation of the habitual felon file number as the lead file number in the first judgment. Accordingly, on remand, the four armed robbery charges, consolidated under the habitual felon indictment number 99 CRS 18801, should be consolidated under the file number of one of the four predicate offenses.
    Second, defendant contends, and again the State concedes, the judgment and commitment forms should reflect that the robbery convictions are subject to an enhanced punishment based upon his status as a habitual felon. At the resentencing hearing, the trial judge indicated that he was entering both judgments against defendant under the Habitual Felon Statutes and instructed that the judgments reflect the offenses enhanced to Class C Felonies. Nevertheless, the two written Judgments and Commitments in this case do not reflect the sentence enhancement of Class “C” under the column “CL” nor do they reflect that the trial court “adjudges the defendant to be an habitual felon to be sentenced as a Class C pursuant to Article 2A of G.S. Chapter 14” under Block Five. Accordingly, this case is remanded to the trial court for correction of these clerical errors to show that the offenses were enhanced to Class C Felonies.
    The State further points out that the judgments in this case reflect nine counts of robbery with a dangerous weapon instead of eight counts of robbery with a dangerous weapon and one count of attempted robbery with a dangerous weapon. Although this error isnot prejudicial, because an attempt to commit robbery with a dangerous weapon is sufficient to be convicted of robbery with a dangerous weapon under N.C. Gen. Stat. § 14-87, the offense listed in case number 99 CRS 31561 should reflect attempted robbery with a dangerous weapon. Accordingly, this case is remanded to the trial court for correction of this clerical error to show the correct offense name in case number 99 CRS 31561, which is attempted robbery with a dangerous weapon.
    In sum, this case is remanded to the trial court for the following corrections to the written judgments and commitments entered 5 August 1999: (1) The lead file number in the first judgment should reflect the file number of one of the four predicate offenses instead of the habitual felon indictment number 99 CRS 18801; (2) in both judgments, the class of offense should reflect the sentence enhancement of Class “C”; (3) in both judgments, block 5 should be checked to reflect that the robbery convictions are subject to an enhanced punishment based upon defendant's status as a habitual felon; and (4) the offense for file number 99 CRS 31553 in the second judgment, should state attempted robbery with a dangerous weapon and not robbery with a dangerous weapon.
    Remanded.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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