State v Byrd, 168 NC App 729 (04-850) 03/01/2005

Appeal by defendant from judgments entered 4 February 2004 by Judge Ronald K. Payne in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 February 2005.

Attorney General Roy Cooper, by Assistant Attorney General Ann W. Matthews, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant appellant.

McCULLOUGH, Judge.

    Defendant Leraysheo Shontel Byrd appeals felony convictions of attempted robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. As detailed below, though there does not appear to be any error in defendant's trial, this case must be remanded to the trial court for resentencing.
    Defendant was charged with robbery with a dangerous weapon (armed robbery), attempted robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. Prior to trial, the State dismissed the armed robbery charge and proceeded on the remaining two charges. At trial, the State's evidence tended to show the following: On the evening of 13 September 2002,Oscar Tabora was standing in the parking lot of an apartment complex talking with a friend, Heriberto Ponce, when an unidentified male approached them and demanded that Tabora “give him the packet.” Ponce, who was parked in his pickup truck, immediately rolled up his window, whereupon the assailant turned toward Ponce. While the assailant was distracted, Tabora turned and fled. Tabora was shot in the back with a .22 pistol as he fled. The perpetrator then got into a vehicle driven by someone Tabora was unable to see, and left the scene.
    Tabora was immediately transported to the hospital, where he remained for two weeks. Tabora underwent two surgeries after being shot on 13 September 2002, and still suffers numbness in his leg as a result of being shot. He testified that he provided the prosecutor with copies of his hospital and medical bills.
    Police officers recovered a spent shell casing from the apartment parking lot and a .22 bullet in the leg of Tabora's pants. Defendant was later arrested on unrelated charges. Subsequently, when a gun which was determined to have fired the spent shell was found in the apartment parking lot, and when Tabora identified defendant as the man who attempted to rob him and who shot him on 13 September 2002, defendant was charged in the instant case.
    The jury found defendant guilty as charged. The trial court sentenced defendant to 77-102 months for the attempted robbery with a dangerous weapon conviction. The trial court, however, suspended defendant's sentence for the assault conviction, and placed him onprobation for 36 months. This probationary period would begin at the expiration of the sentence for the attempted robbery. As a condition of defendant's probation, he was ordered to pay restitution in the amount of $17,977.71 and attorney's fees in the amount of $4,355.00. Defendant appeals.
    By defendant's sole assignment of error brought forward on appeal, he argues that the trial court committed reversible error in ordering him to pay $17,977.71 in restitution when the State did not present evidence to support such an award. We agree.
    At the outset, we note the State argues that this matter is not properly before the Court since defendant failed to properly object to “the imposition of restitution or the amount of restitution ordered by the trial court at the sentencing hearing.” See N.C.R. App. P. 10(b)(1). Though the State is correct in this regard, to prevent a manifest injustice to defendant, we elect to address defendant's argument on appeal inasmuch as it does appear that the trial court did err in ordering defendant to pay $17,977.71 in restitution without a proper showing by the State. See N.C.R. App. P. 2.
    N.C. Gen. Stat. § 15A-1340.34(c) (2003) provides that a trial court may order restitution for “any injuries or damages arising directly and proximately out of the offense committed by the defendant.” Significantly, however, the amount of restitution recommended by the trial court must be supported by evidence adduced at trial or sentencing. State v. Clifton, 125 N.C. App. 471, 480, 481 S.E.2d 393, 399 (1997). In State v. Daye, this Courtnoted, “Even though recommendations of restitution are not binding, we see no reason to interpret the statutes of this State to allow judges to make specific recommendations that cannot be supported by the evidence before them.” 78 N.C. App. 753, 757, 338 S.E.2d 557, 560, aff'd per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986). Accordingly, “regardless of whether restitution is ordered or recommended by the trial court, the amount must be supported by the evidence.” Id.
    At sentencing in the instant case, the prosecuting attorney requested restitution in the amount of $17,977.71 for the victim's medical bills. Defendant did not stipulate or agree to the award of restitution in that amount, nor did he object to that amount. The trial court ordered that defendant pay restitution in the amount requested by the prosecuting attorney. The only evidence regarding damages presented at trial was by the victim, who indicated that he had provided the prosecution with copies of his hospital and other medical bills. It does not appear that the prosecuting attorney presented these bills to the trial court. Indeed, the record on appeal does not contain any of these documents. As there was no evidence on this record to support an award of $17,977.71 in restitution, we conclude that the trial court erred in ordering such an award. Accordingly, that portion of the trial court's judgment requiring that defendant pay restitution in the amount of $17,977.71 must be reversed and this matter remanded for resentencing.
    Defendant has failed to bring forth his remaining assignmentsof error and they are, therefore, taken as abandoned. See N.C.R. App. P. 28(b)(6). In light of all of the foregoing, we hold that save the issue of the award of restitution, there is no error in defendant's trial. As the court's award of restitution was not supported by evidence of record, however, this matter is reversed and remanded for resentencing.
    No prejudicial error in part; reversed and remanded in part for resentencing.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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