State v Graham, (04-273) 01/04/2005

Appeal by Defendant from judgment entered 3 October 2003 by Judge Forrest D. Bridges in Superior Court, Mecklenburg County. Heard in the Court of Appeals 16 November 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State.

Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall for defendant-appellant.

    WYNN, Judge.

    Defendant Keith Howard Graham appeals from judgments of the trial court entered upon jury verdicts finding him guilty of two counts of robbery with a firearm and one count of breaking and entering. Defendant contends that the trial court erred in sentencing him and in allowing into evidence an impermissibly suggestive photographic lineup. After careful review, we find no error in the appeal but remand for correction of a clerical error.     The evidence at trial tended to show that on 8 November 2002 Roland Farrar, eighty-one-years-old, and Kathleen Howell, eighty- two-years-old, returned to their home after grocery shopping. At the house, Mr. Farrar propped open the door to unload groceriesfrom the car. Shortly thereafter, a man walked up the driveway and said he was passing out flyers. But Mr. Farrar told the man he was not interested and the man turned and walked back down the driveway.
    Mr. Farrar followed Ms. Howell inside the house carrying groceries. As he walked through the living room he turned around and saw a man pointing a silver-plated revolver at his head. The man demanded money, hit Mr. Farrar on the head twice with the butt of the gun, took Mr. Farrar's wallet and Ms. Howell's purse, and then left.
    Mr. Farrar called 911, and officers from the Charlotte- Mecklenburg Police Department came to the house. Mr. Farrar described the man who robbed him as a tall, heavy-set, neatly dressed, black man who was clean shaven with short hair.
    On 10 January 2003, officers separately showed Mr. Farrar and Ms. Howell a photographic lineup of six black men. Separately, they identified Defendant as the man who robbed them. Ms. Howell also recognized him as the same man who approached them in the driveway.
    A jury convicted Defendant of two counts of robbery with a firearm and one count of breaking and entering. The trial court sentenced Defendant to seventy-two to ninety-six months imprisonment for the first robbery conviction. The trial court consolidated the second robbery conviction with the breaking and entering conviction and sentenced Defendant to an additional seventy-two to ninety-six months imprisonment to begin at theexpiration of the first sentence. The trial court also ordered Defendant to pay restitution to the victims totaling $210.00. Defendant appealed.
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    On appeal, Defendant contends that the trial court: (1) erred in sentencing him to the range of seventy-two to ninety-six months imprisonment; (2) erred in ordering him to pay restitution to the victims; and (3) committed plain error in allowing an impermissibly suggestive photographic lineup into evidence.
    Defendant first argues that the trial court erred in sentencing him to the range of seventy-two to ninety-six months imprisonment as this was not the correct presumptive range. We disagree.
    Defendant was convicted of two counts of robbery with a firearm which he acknowledges is a Class D felony. N.C. Gen. Stat. § 14-87(a) (2003). Due to his prior convictions, Defendant was determined to be a level two felon. The trial court correctly imposed a sentence within the presumptive range according to the chart listed in section 15A-1340.17(c) of the North Carolina General Statutes. N.C. Gen. Stat. § 15A-1340.17(c)(2) (2003). “[A]ny minimum term of imprisonment in that range is permitted.” Id. “The Structured Sentencing Act clearly provides for judicial discretion in allowing the trial court to choose a minimum sentence within a specified range.” State v. Parker, 143 N.C. App. 680, 685-6, 550 S.E.2d 174, 177 (2001).     Here, the trial court had discretion to impose a minimum sentence anywhere within the range of sixty-one to seventy-seven months imprisonment. N.C. Gen. Stat. § 15A-1340.17(c). The trial court chose a minimum sentence of seventy-two months which is within the specified presumptive range.
    Also, the trial court has no discretion in regard to maximum sentences. Parker, 143 N.C. App. at 686, 550 S.E.2d at 177. Once a minimum sentence is determined, the corresponding maximum sentence is specified in the table set forth in the statute. Id. We conclude that the trial court correctly used the table in section 15A-1340.17(e) of the North Carolina General Statutes. The maximum sentence for a seventy-two month minimum is ninety-six months. N.C. Gen. Stat. § 15A-1340.17(e). Accordingly, the trial court correctly sentenced Defendant within the presumptive range.     Defendant next contends that the trial court erred in ordering him to pay restitution to the victims as there was not reliable evidence as to their losses. We disagree.
    Section 15A-1340.34(b) of the North Carolina General Statutes directs a trial court to award restitution for “any injuries or damages arising directly and proximately out of the offense committed by the defendant.” N.C. Gen. Stat. § 15A-1340.34(b) (2003). However, this provision (entitled “Restitution generally”) must be read in conjunction with the following provisions contained in section 15A-1340.35 of the North Carolina General Statutes (entitled “Basis for restitution”). A trial court is entitled to award restitution for “an offense resulting in bodily injury to avictim” based on “[t]he cost of necessary medical and related professional services and devices or equipment relating to physical, psychiatric, and psychological care required by the victim.” N.C. Gen. Stat. § 15A-1340.35(a)(1) (2003). Also, a trial court is entitled to award restitution for “an offense resulting in the damage, loss, or destruction of property of a victim.” N.C. Gen. Stat. § 15A-1340.35(a)(2).
    In this case, the trial court imposed restitution in the total amount of $210.00. Restitution to compensate Mr. Farrar totaled $145.00, the amount of his medical insurance deductible for treatment of the head wound. Restitution to compensate Ms. Howell totaled $65.00, $25.00 for a medical insurance co-payment, $20.00 for the value of the purse, and $20.00 for the cash in the purse. All these items fall within proper items for restitution. N.C. Gen. Stat. § 15A-1340.35.
    Nevertheless, Defendant argues that the trial court erred in awarding the amount of restitution without proper evidence of the amount of the victims' losses. “The court may require that the victim . . . provide admissible evidence that documents the costs claimed by the victim . . . under this section.” N.C. Gen. Stat. § 15A-1340.35(b). But the statute does not require a trial court to base the restitution on actual receipts.
    Here, the losses are tangible and easily quantifiable. State v. Wilson, 158 N.C. App. 235, 240, 580 S.E.2d 386, 390 (2003). The trial court relied on the State and victims' representations ofvalue. It was within the trial court's discretion of whether to require further proof.
    Finally, Defendant contends that the trial court committed plain error in allowing an impermissibly suggestive photographic lineup into evidence. Defendant argues that his skin coloring was different than the other men in the lineup. We disagree.
    Identification procedures which are so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violate a defendant's right to due process. State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983); State v. Leggett, 305 N.C. 213, 220, 287 S.E.2d 832, 837 (1982). This Court has said that to determine the suggestiveness of pretrial identification, the test is whether the totality of circumstances reveals a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice. Id. If an identification procedure is not impermissibly suggestive, the inquiry is ended. State v. Freeman, 313 N.C. 539, 544, 330 S.E.2d 465, 471 (1985).
    Due process does not require that all subjects in a photographic lineup be identical in appearance. State v. Montgomery, 291 N.C. 91, 100, 229 S.E.2d 572, 579 (1976). Nor is such a lineup impermissibly suggestive merely because the defendant has a distinctive appearance. Freeman, 313 N.C. at 545, 330 S.E. 2d at 471. All that is required is that the lineup be fair andthat the investigating officers do nothing to induce the witness to select one subject rather than another. Id.
    Here, the photographic lineup was not impermissibly suggestive. The photographs were of six black men of various complexions. Defendant was neither notably lighter nor notably darker than the other men. All men had short hair and visible facial hair. There is also no evidence that the police officers made any suggestion to the witnesses as to which photograph to select. As the photographic lineup was not impermissibly suggestive, there is no need for further inquiry. Id. at 544, 330 S.E.2d at 471.
    Finally we note that the Judgment and Commitment sheet for conviction 03 CRS 202422 incorrectly lists robbery with a dangerous weapon as a Class F felony. But the statute indicates it is a Class D felony. N.C. Gen. Stat. § 14-87(a). Since this is merely a clerical error Defendant is not entitled to a new sentencing hearing. State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349 (holding erroneous mark on judgment sheet an “obvious clerical error because it is inconsistent with the trial court's actual findings” as set forth in the transcript), cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000). Accordingly, this matter is remanded to the trial court for correction of this clerical error.
    Defendant's remaining assignment of error regarding the denial of his motion to dismiss is deemed abandoned as he presented no authority. N.C. R. App. P. 28(b)(6).
    No error in appeal.    Remand for correction of clerical error.
    Judges HUDSON and ELMORE concur.
    Report per Rule 30(e).

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