State v Cannon, (04-937) 07/05/2005

Appeal by defendant from judgment entered 24 March 2004 by Judge James W. Morgan in Superior Court, Mecklenburg County. Heard in the Court of Appeals 23 March 2004.

Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley, Jr., for the State.

Kelly Scott Lee for defendant.

    McGEE, Judge.

    Reginald Lamont Cannon (defendant) pleaded guilty to second degree murder on 13 January 1995. The trial court sentenced defendant to life in prison without making any findings regarding defendant's eligibility for committed youthful offender status. Defendant did not appeal his conviction or sentence.
    Defendant filed a motion for appropriate relief on 30 January 2003 and argued that the trial court erred by failing to make a finding as to whether defendant should have been considered a committed youthful offender pursuant to N.C. Gen. Stat. § 148- 49.10_148-49.15 (repealed 1995). The trial court granted defendant's motion for appropriate relief on 30 April 2003, finding that defendant was eligible for and entitled to be considered forsentencing as a committed youthful offender. A hearing was held on 24 March 2004 to determine whether defendant was entitled to committed youthful offender status. The trial court found that defendant should not obtain the benefit of release as a committed youthful offender. Defendant appeals.
    The State argues that defendant's appeal should be dismissed due to numerous violations of the North Carolina Rules of Appellate Procedure.
    The State contends that defendant's first assignment of error does not address the same issue as the corresponding section in his brief. Defendant's first assignment of error asks whether "the trial court err[ed] in finding in sentencing [sic] [d]efendant in the aggravated range and finding as the aggravating factor the misdemeanor charge of resist or obstruct an officer conviction in 1994[.]" However, Section I of defendant's brief contains the heading: "THE TRIAL COURT ERRED IN NOT GIVING . . . DEFENDANT- APPELLANT A NEW SENTENCING HEARING WHEN THE ORDER OF [THE TRIAL COURT] CLEARLY STATED A NEW HEARING AND WHEN [THE TRIAL COURT] MODIFIED THE ORIGINAL JUDGMENT BY SUBSTITUTING A MISDEMEANOR CONVICTION TO ACHIEVE THE SAME RESULT. Assignment of Error No. 1." The argument that follows this assertion supports the contention that the trial court erred in not giving defendant a new sentencing hearing and does not address the issue regarding the aggravating factor.
    N.C.R. App. P. 10(a) states that "the scope of review on appeal is confined to a consideration of those assignments of errorset out in the record on appeal[.]" As a result, we are precluded from considering defendant's argument that the trial court erred by not giving defendant a new sentencing hearing. See Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991); and State v. Smith, 160 N.C. App. 107, 122, 584 S.E.2d 830, 840 (2003). Furthermore, "[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." N.C.R. App. P. 28(b)(6). Therefore, we deem defendant's argument that the trial court erred by sentencing defendant in the aggravated range to be abandoned.
    The State also argues that defendant violated Rule 9(a)(3)(c), which states: "The record on appeal in criminal actions shall contain . . . copies of all warrants, informations, presentments, and indictments upon which the case has been tried in any court[.]" N.C.R. App. P. 9(a)(3)(c). The State further argues that defendant violated Rule 9(b)(1), which requires that the record on appeal "be arranged, so far as practicable, in the order in which they occurred or were filed in the trial tribunal." N.C.R. App. P. 9(b)(1).
    We agree with the State that defendant violated Rules 9(a)(3)(c) and 9(b)(1). Defendant failed to provide a copy of the warrant, information, presentment or indictment in the record. In addition, the materials in the record do not appear in the order in which they occurred or any other discernable order. "The appellant has the duty to see that the record on appeal is properly made up." Collins v. St. George Physical Therapy, 141 N.C. App. 82, 89, 539 S.E.2d 356, 361 (2000). Accordingly, we find that defendant violated Rules 9(a)(3)(c) and 9(b)(1). See State v. Musumeci, 33 N.C. App. 88, 88-89, 234 S.E.2d 31, 32, disc. review denied, 292 N.C. 733, 235 S.E.2d 787 (1977).
    The State next argues that defendant's assignments of error as listed in the record violate Rule 10. The assignments of error appear as follows:
        I.    Did the trial court err in finding in sentencing [sic] [d]efendant in the aggravated range and finding as the aggravating factor the misdemeanor charge of resist or obstruct an officer conviction in 1994? (Tp. at 40, Rp. at 40.)

        II.    Did the trial court err in denying [d]efendant the benefit of release under N.C.[Gen. Stat. §] 148-49.14 (since repealed on January 1, 1995). (Tp. at 40, Rp. at 40).

    The State argues that the assignments of error violate Rule 10 since they fail to provide a supporting legal basis. Rule 10 requires that: "Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." N.C.R. App. P. 10(c)(1). The purpose of this Rule is to ensure that the appellee has notice of the issues that will be raised on appeal and can determine whether the proposed record is sufficient. See Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988); see also State v. Baggett & Penuel, 133 N.C. App. 47, 48, 514 S.E.2d 536, 537 (1999).     In this case, defendant failed to support his assignments of error with any legal grounds. Therefore, defendant's assignments of error are insufficient to meet the requirements of Rule 10(c)(1). See Rogers v. Colpitts, 129 N.C. App. 421, 422-23, 499 S.E.2d 789, 790 (1998).
    Finally, the State argues that defendant violated Rule 28, which states that an appellant's brief "shall contain . . . [a] statement of the questions presented for review[.]" N.C.R. App. P. 28(b)(2) (emphasis added). Defendant's brief fails to contain such a statement. Therefore, we find that defendant has also violated Rule 28. See Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 598, 516 S.E.2d 169, 172 (1999); Dillingham v. N.C. Dep't of Human Res., 132 N.C. App. 704, 707, 513 S.E.2d 823, 825 (1999).
    As our Supreme Court has recently stated, "[t]he North Carolina Rules of Appellate Procedure are mandatory and 'failure to follow these rules will subject an appeal to dismissal.'" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). Due to defendant's multiple violations of the N.C. Rules of Appellate Procedure, we dismiss defendant's appeal.
    Appeal dismissed.
    Judges BRYANT and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***