An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-345


Filed: 20 January 2004


v .                         Pasquotank County
                            No. 96 CRS 5357

    Appeal by defendant from judgment entered 29 April 2002 by Judge Quentin T. Sumner in Pasquotank County Superior Court. Heard in the Court of Appeals 3 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for the State.

    Anthony C. Lambert, pro se, defendant-appellant.

    CALABRIA, Judge.

    Issues arising from the prosecution of Anthony C. Lambert (“defendant”) for unauthorized practice of law are before this Court for the fourth time. We need not recapitulate the facts upon which the three previous appeals were taken. It is sufficient for purposes of this appeal to note that, in his last appeal regarding the sentence imposed, defendant challenged the trial court's failure to appoint counsel to represent defendant during resentencing and raised issues regarding the special conditions of probation imposed by the trial court. State v. Lambert, 146 N.C. App. 360, 553 S.E.2d 71 (2001). We held defendant's resentencinghearing was not a critical stage of the criminal proceeding which would entitle him to representation by counsel but vacated in part the resentencing judgment and remanded for resentencing because defendant received only oral, and not written, notice of the conditions of his probation. Id., 146 N.C. App. at 368-69, 553 S.E.2d at 78. On remand, defendant appeared pro se at the resentencing hearing. The trial court sentenced defendant to forty-five days in the Pasquotank County Jail, suspended his sentence, and placed him on supervised probation for eighteen months. From this resentencing judgment, defendant appeals.
    On appeal, defendant sets forth five assignments of error. Defendant asserts the trial court erred by (I) failing to appoint counsel to represent defendant; (II) failing to find unsupervised probation would be appropriate in light of defendant's good behavior; (III) delegating judicial authority by allowing a probation officer to establish a payment schedule; (IV) denying defendant's motion to terminate probation; and (V) failing to give defendant a written statement of the new conditions of probation that were imposed.
I. Right to Counsel
    Defendant conceded at trial and in his brief to this Court that we previously held defendant is not entitled to counsel at his resentencing hearing. Lambert, 146 N.C. App. at 364-65, 553 S.E.2d at 75. Nonetheless, defendant asserts the United States SupremeCourt's opinion in Alabama v. Shelton, 535 U.S. 654, 152 L. Ed. 2d 888 (2002) overturned our decision.   (See footnote 1)  We disagree.
    In Shelton, the Supreme Court held “a suspended sentence that may 'end up in the actual deprivation of a person's liberty' may not be imposed unless the defendant was accorded 'the guiding hand of counsel' in the prosecution for the crime charged.” Id., 535 U.S. at 658, 152 L. Ed. 2d at 895 (emphasis added) (quoting Argersinger v. Hamlin, 407 U.S. 25, 40, 32 L. Ed. 2d 530, 540 (1972)). The Court noted that the key inquiry under the Sixth Amendment was “whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration.” Shelton, 535 U.S. at 667, 152 L. Ed. 2d at 901 (emphasis added). Indeed, in discounting proceedings after the prosecution, the Court stated “we doubt that providing counsel after the critical guilt adjudication stage '[would] be of much help to a defendant,' for 'the die is usually cast when judgment is entered on an uncounseled trial record.'” Id., 535 U.S. at 669, 152 L. Ed. 2d at 902, n. 5 (emphasis added) (citation omitted). Defendant was represented by counsel at trial and appeared pro seonly at his resentencing hearings. Since resentencing has already been determined not to be a critical stage of the criminal proceeding, Lambert, 146 N.C. App. at 364-65, 553 S.E.2d at 75, and since Shelton does nothing to affect that holding, our previous ruling on this issue is definitive. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 563, 299 S.E.2d 629, 630 (1983). This assignment of error is overruled.
II. Unsupervised Probation
    In his second assignment of error, defendant asserts his good behavior, from the time of his conviction until the time of the resentencing hearing, must be considered by the trial court, and the trial court erred “by not making a finding based on the uncontroverted evidence . . . of defendant's good behavior that he would not benefit from being place[d] on unsupervised probation.”
    North Carolina General Statutes § 15A-1343.2 specifies the “length of the original period of probation for offenders sentenced under Article 81B.” N.C. Gen. Stat. § 15A-1343.2(d) (2003). For misdemeanants sentenced to intermediate punishment, this length is statutorily established as “not less than 12 nor more than 24 months.” N.C. Gen. Stat. § 15A-1343.2(d)(2) (2003). Deviations from this probationary range requires the trial court to make “specific findings that . . . [a] shorter period[] of probation [is] necessary.” N.C. Gen. Stat. § 15A-1343.2(d). Accordingly, in our previous ruling in this case, we stated the “trial court must reduce defendant's probation to the statutory period of twelve to twenty-four months or enter appropriate findings of fact that alonger period of probation is necessary.” Lambert, 146 N.C. App. at 366, 553 S.E.2d at 76; N.C. Gen. Stat. § 15A-1343.2(d)(2). In imposing a sentence of probation for a period of eighteen months, the trial court adhered to the appropriate range of probation noted by this Court and set forth in N.C. Gen. Stat. § 15A-1343.2(d)(2) for defendant's crime.
    Nonetheless, defendant argues that, because he stated he had no subsequent criminal convictions at the resentencing hearing, the trial judge was required to (1) deviate from the period of probation established under structured sentencing and (2) make findings of fact justifying the shortened probation period. Accepting defendant's argument would require us to hold that a trial court errs by adhering to the statutory structured sentence set forth in N.C. Gen. Stat. § 15A-1343.2(d)(2) where a defendant has merely abstained from engaging in criminal activity since the time of his conviction until he is resentenced. While defendant's continued observation of our criminal laws is commendable, we cannot agree that a trial court must reduce a sentence for a criminal conviction solely because there have been no subsequent convictions at the time of resentencing. Accordingly, we hold the trial court did not err in complying with N.C. Gen. Stat. § 15A- 1343.2(d)(2), and this assignment of error is overruled.
III. Delegation of Judicial Authority
    Defendant's third assignment of error challenges the trial court's delegation of authority to determine a payment schedule tothe probation officer. North Carolina General Statutes § 15A- 1343(g) (2003) reads, in pertinent part, as follows:
        Probation Officer May Determine Payment Schedules. _ If a person placed on supervised probation is required as a condition of that probation to pay any moneys to the clerk of superior court, the court may delegate to a probation officer the responsibility to determine the payment schedule.

Despite the clear language of the statute, defendant argues the trial court lacked the authority to delegate to the probation officer the authority to establish a payment schedule for defendant pursuant to United States v. Miller, 77 F.3d 71 (4th Cir. 1996).
    In Miller, the Court of Appeals for the Fourth Circuit examined the language of 18 U.S.C.A. § 3663(f)(1) (West Supp. 1995) and, based on the statutory duty imposed by that statute, held that a federal district court could not delegate its judicial authority “to establish the installment amount and timing of [a defendant's] fine and restitution payments.” United States v. Miller, 77 F.3d at 77. The statutory duty imposed on federal district courts by 18 U.S.C.A. § 3663(f)(1) (West Supp. 1995) has no application in this Court. Moreover, defendant has presented no argument or applicable authority challenging the validity of N.C. Gen. Stat. § 15A- 1343(g), which clearly allows for the procedure utilized by the trial court. Accordingly, this assignment of error is overruled.
IV. Motion to Terminate Probation
    In his fourth assignment of error, defendant asserts the trial court should have granted his motion to terminate probation under N.C. Gen. Stat. § 15A-1342(b) (2003) “as a sanction for the state'sactions in this matter.” Under N.C. Gen. Stat. § 15A-1342(b), the trial court “may terminate a period of probation and discharge the defendant at any time earlier than that provided in subsection (a) if warranted by the conduct of the defendant and the ends of justice.” Notably, the statute does not provide for early termination of probation premised upon acts or misconduct by the State.
    Moreover, we note no misconduct by the State appears on the record. Defendant's assertion relates to the fact that, while defendant's probation was stayed pending appeal to this Court, see N.C. Gen. Stat. § 15A-1451(a)(4) (2003), a warrant was issued for defendant based on a probation violation. Defendant sought relief by petitioning this Court for a writ of certiorari, which was granted. Thus, the record indicates that the warrant was mistakenly issued and appropriately corrected by defendant's petition. Trevor A. Hampton, Chief of Police of Elizabeth City, stated the following in a letter to defendant: “Please understand that neither the Elizabeth City Police Department nor I have intended to create an awkward situation for you, nor is it our intent to embarrass you in any way. Until the courts decide that the order for your arrest is to be recalled we must assume it is valid and take the necessary steps to serve it.” While defendant argues that “there can be no argument that the state through its agents had a specific intent to harm the defendant,” no evidence presented to the trial court or contained in the record on appeal supports this claim. Accordingly, we hold the trial court did noterr in denying defendant's motion under N.C. Gen. Stat. § 15A- 1342(b).
V. Written Conditions of Probation
    Defendant asserts we must remand for resentencing because he was released on supervised probation yet the trial court failed to provide defendant with “a written statement explicitly setting forth the conditions on which he is being released.” N.C. Gen. Stat. § 15A-1343(c) (2003). At defendant's resentencing hearing, the trial court imposed the following condition of probation: “complete seventy-two (72) hours of community services within the next ninety (90) days.” The State concedes this condition is not shown on the printed judgment signed by the trial judge but asks this Court to treat the oversight as a clerical error.
    In one of defendant's previous appeals to this Court, we addressed the requirement imposed by N.C. Gen. Stat. § 15A- 1343(c):
        The record on appeal is completely devoid of any evidence that defendant was served with a written copy of this particular condition of probation, so this condition is invalid as prescribed by the trial court. Oral notice to defendant of his conditions of probation is not a satisfactory substitute for the written statement required by statute.

Lambert, 146 N.C. App. at 368-69, 553 S.E.2d at 78 (citing State v. Suggs, 92 N.C. App. 112, 113, 373 S.E.2d 687, 688 (1988)). In keeping with our previous holding, we vacate this condition of defendant's probation and remand this portion of defendant's case for resentencing.
    Vacated in part, remanded for resentencing.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
     The State contends, as an initial matter, that “the North Carolina Supreme Court does not allow one panel of the Court of Appeals to overrule the decision of another panel of the Court.” See N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 563, 299 S.E.2d 629, 630 (1983). Generally speaking, this is true; however, presupposing an opinion of the United States Supreme Court overruled a previous opinion of this Court on constitutional grounds, it would clearly be within the appropriate province of this Court to follow the constitutional mandate contained in that holding, notwithstanding that it conflicted with one of our opinions. To do otherwise would be to arrogate the opinions of this Court to a status higher than that held by the United States Supreme Court.

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