State v Hernandez, (04-1156) 09/20/2005

Appeal by defendant from judgments entered 9 October 2000 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 13 April 2005.

Attorney General Roy Cooper, by Assistant Attorney General Katherine C. Galvin, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant appellant.

McCULLOUGH, Judge.

The present appeal arises from a challenge by defendant to the validity of the indictments charging him with first-degree rape and attempted murder, the denial of his motion to suppress evidence, and the sentences imposed pursuant to his rape and attempted murder convictions. We hold that the first-degree rape and attempted murder indictments were sufficient, but that defendant is entitled to be resentenced. Due to lost transcripts, we are unable to review the denial of defendant's motion to suppress, and we remand for a new suppression hearing. If defendant's motion to suppressis granted, he is entitled to a new trial on all of the charges for which he was indicted; however, if the motion is again denied, he is entitled only to be resentenced for first-degree rape and first- degree burglary. (See footnote 1)

    Defendant was indicted for first-degree rape, attempted murder, robbery with a dangerous weapon, first-degree burglary, and first-degree kidnapping. Prior to his trial on these charges, defendant filed a motion to suppress statements he made to the police and evidence obtained as a result of those statements. Following a hearing, the trial court orally denied the motion. Approximately three months later, the trial court entered a written order, which contained findings of fact and conclusions of law in support of the denial of the motion.
    Defendant entered Alford pleas on all of the charges, which the trial court accepted. The trial court imposed consecutive sentences totaling 741 to 935 months' imprisonment. Defendant gave notice of appeal.
    The trial court found defendant to be indigent, appointed a new attorney to represent him on appeal, and ordered that defendant be provided with transcripts of the suppression and sentencing hearings. Subsequently, the trial court allowed defendant's appellate counsel to withdraw and appointed the Appellate Defender to represent defendant on appeal. Defendant was never providedwith transcripts of the suppression hearing or the entry of his guilty plea because the court reporter's notes of these proceedings were lost.
    Based on the State's inability to provide a transcript, defendant filed a motion for a new suppression hearing in this Court. The State contested the motion on the grounds that
        [t]here is no indication in defendant's motion whether his appellate counsel has investigated and determined whether defense counsel took notes during the hearing, whether the prosecutor took notes during the hearing, or whether the trial judge took notes during the hearing. If all of them took notes during the hearing and their notes match fairly well, a narration of the hearing could be constructed in accordance with [Rule] 9(c)(1) and settled in accordance with [Rule] 11 [of the North Carolina Rules of Appellate Procedure].

In an order entered 17 March 2004, this Court denied defendant's motion for a new suppression hearing.
    Thereafter, defendant compiled the record, which includes an affidavit from defendant's trial counsel and a letter from the trial judge. Defendant's trial counsel stated that he could not accurately reconstruct what occurred at the hearings from his notes and memory. Likewise, the trial judge indicated that he did not have any notes of these hearings, though he noted the entry of “a lengthy Order denying the motion to suppress . . . [which] would be the best record of what went on at the suppression hearing absent a transcript[.]” Defendant also included the following information in the record on appeal:
        In letters dated March 22, 2004, defendant's counsel contacted [the prosecutor] and [the trial judge] requesting that they send her any notes they had of the proceedings. Counsel contacted [defendant's trialattorney] by phone. On March 30, 2004, [the trial judge] phoned counsel and stated that he did not have any notes of the proceedings and that he had very little recollection of what occurred. That day, [the judge] sent counsel a letter reiterating this. In mid-April, [the prosecutor] phoned counsel and stated that she did have notes of the proceedings and that she would send them to counsel. Counsel did not receive any notes. Counsel wrote [the prosecutor] two more letters (dated May 3 and May 25, 2004) requesting the notes and received no notes or reply from [the prosecutor]. [Defendant's trial counsel] stated in an affidavit that he could not “accurately reconstruct what occurred at the hearing from [his] notes and memory.” [Defendant's trial attorney] informed counsel by phone that he had very few notes of the proceedings, and that his notes were occasional notes taken during direct testimony of State's witnesses to remind him of questions he might want to ask on cross-examination.

        Because of the lack of a transcript or any substantial notes of the proceedings, counsel is unable to narrate the evidence, to set out the facts upon which defendant's appeal is based, to identify and assign errors, or otherwise to comply with Rules 9(a), 3(e) and (j), 9(c), and 10(c) of the Rules of Appellate Procedure.

The record includes defense counsel's letters to the prosecutor. There is no indication that the prosecutor responded.

    In his first argument on appeal, defendant contends that he must receive a new hearing on his motion to suppress because he has been denied a transcript of the suppression hearing and cannot procure an acceptable alternative. Defendant asserts that the loss of the transcript will preclude him from exercising his right to meaningful appellate review of the denial of his motion to suppress evidence. We agree.
    Under N.C. Gen. Stat. § 7A-450 (2003), an indigent defendant is entitled to receive a copy of the trial transcript at Stateexpense when necessary to perfect an appeal. See State v. Rankin, 306 N.C. 712, 716, 295 S.E.2d 416, 419 (1982). The absence of a transcript is prejudicial if a new attorney is appointed to represent the defendant on appeal, and appellate counsel is unable to effectively represent his client without the benefit of a transcript. See State v. Lawrence, 352 N.C. 1, 16, 530 S.E.2d 807, 817 (2000). A defendant may preserve this issue for review by “assert[ing] as an assignment of error that he is unable to obtain an effective appellate review of errors committed during the trial proceeding because of the inability of the [r]eporter to prepare a transcript.” State v. Neely, 21 N.C. App. 439, 441, 204 S.E.2d 531, 532 (1974).
    Our Supreme Court has held that the lack of a transcript does not prejudice the defendant “where alternatives are available that would fulfill the same functions as a transcript and provide the defendant with a meaningful appeal.” Lawrence, 352 N.C. at 16, 530 S.E.2d at 817. Specifically, a defendant is not denied a meaningful appeal if an appropriate narrative of testimonial evidence may be compiled pursuant to Rule 9(c)(1) of the North Carolina Rules of Appellate Procedure. See id. (holding that a narrative of the testimony of two witnesses compiled by the State was an acceptable alternative to a transcript where the witnesses testified that the narration was an accurate representation of their testimony and the trial court included the narrative in the record on appeal). However, where a defendant will be unable to receive meaningful appellate review because of the unavailability of a transcript oran acceptable alternative, an appellate court may exercise its supervisory powers under Rule 2 of the North Carolina Rules of Appellate Procedure to grant relief. See State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984).
    In the instant case, defendant has been denied a transcript of the hearing on his motion to suppress because the court reporter's notes of the hearing have been irretrievably lost, and the record indicates that defendant has attempted unsuccessfully to procure an acceptable alternative to a transcript. Under these circumstances, defendant's appointed appellate lawyer, who did not represent defendant at trial, will be unable to ascertain whether the trial court's findings of facts are supported by competent testimony at the suppression hearing, and thus, whether the trial court's ruling is supported by competent findings of fact. Therefore, defendant will be unable to procure meaningful appellate review of the denial of his motion to suppress.
    As defendant has preserved this issue with an appropriate assignment of error, we exercise our supervisory powers under Rule 2 of the Rules of Appellate Procedure to grant defendant a new hearing on his motion to suppress. If defendant's motion is granted, he is entitled to a new trial. If the motion is again denied, defendant's convictions will remain in effect, but he is entitled to be resentenced in accordance with section IV of this opinion.   (See footnote 2)

    Defendant also argues that the short-form indictment charging him with first-degree rape fails to allege all of the elements of the charged offense. This contention lacks merit.
    N.C. Gen. Stat. § 15-144.1(a) (2003), which permits the use of short-form rape indictments, provides that
        [i]n indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment,... it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will .... Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree[.]

Our Supreme Court has held that the use of a short-form indictment to charge first-degree rape “comport[s] with the requirements of the North Carolina and United States Constitutions.” State v. Wallace, 351 N.C. 481, 505, 528 S.E.2d 326, 342, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000), reh'g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001).
    In the instant case, the challenged indictment alleged that “defendant ... unlawfully, willfully and feloniously did ravish and carnally know [the victim] by force and against her will.” As such, the indictment was both statutorily and constitutionally valid and was sufficient to charge defendant with first-degree rape. This assignment of error is overruled.

Defendant also contends, via a motion for appropriate relief, that his attempted murder conviction must be vacated because the related indictment is insufficient to charge him with this offense. The attempted murder indictment alleges that defendant “unlawfully, willfully and feloniously did of malice aforethought attempt to kill and murder [the victim].” Our Supreme Court has recently held that the use of identical language was sufficient to charge a defendant with attempted murder. State v. Jones, No. 389PA04, slip op. at 9, __ N.C. __, __, __ S.E.2d __, __ (filed 19 August 2005) (“[W]e hold that [N.C. Gen. Stat.] § 15-144 ... implicitly authorizes the state to utilize a short-form indictment to charge attempted first-degree murder. We further hold that when drafting such [an] indictment, it is sufficient for statutory purposes for the state to allege 'that the accused person feloniously, willfully, and of his malice aforethought, did [attempt to] kill and murder' the named victim.”). Accordingly, the present defendant's motion for appropriate relief is denied.

    Defendant next contends that his aggravated sentences for first-degree rape and first-degree burglary are unconstitutional because the aggravating factors used to enhance his sentence were not found to exist beyond a reasonable doubt by a jury. The State properly concedes this issue. Accordingly, if defendant's motion to suppress is denied on remand, the trial court must resentence defendant for the first-degree rape and first-degree burglaryconvictions in accordance with the principles set forth in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, ___ U.S. ___, 159 L. Ed. 2d 851 (2004), and State v. Allen, 359 N.C. 425, 449, 615 S.E.2d 256, __ (2005).
    Remanded for new suppression hearing; Motion for Appropriate Relief denied.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1