State v Best, (04-1382) 08/02/2005

Appeal by defendant from judgments entered 15 January 2004 by Judge James C. Spencer in the Superior Court in Wake County. Heard in the Court of Appeals 9 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Rudy E. Renfer, for the State.

Adrian M. Lapas, for defendant.

    HUDSON, Judge.

    At the 12 January 2004 criminal session of the superior court in Wake County, defendant William Mack Best came on for trial on thirteen counts of aiding and assisting in preparing fraudulent tax returns in violation of N.C. Gen. Stat. § 105-236(9A)(a) (2003). Before submitting the case to the jury, the court dismissed count I of the indictment in 03 CrS 74932. The jury found defendant not guilty on count II of 03 CrS 74932 and guilty on all ten of the remaining charges. The court determined defendant was a prior record level III, consolidated the eleven counts into two judgments and sentenced defendant to nine to eleven months in prison on each. Defendant appeals, and as discussed below, we find no error.     The evidence tended to show that the Criminal Investigations Divisions of the North Carolina Department of Revenue reviewed a number of tax returns in which individuals claimed a carry-over for charitable deductions under Schedule A. Investigators became suspicious because a carry-over can only be claimed when an individual has given more than 50% of his or her adjusted gross income to charities in the previous tax year. Each of the eleven individuals testified that defendant had prepared the returns, and had never asked them about any charitable contributions. The individuals each testified that the carry-over deductions were not accurate. Defendant testified that he had simply misunderstood how the carry-over deduction was calculated, and that he had warned the individuals not to file the returns if they lacked the necessary supporting documents.
    Defendant first argues that the court erred in sentencing him as a Level III felon. We disagree.
    Before sentencing, the trial court must determine a defendant's prior record level under Structured Sentencing. For this purpose, out-of-state felony convictions are generally classified as class I felonies and assigned two points. N.C. Gen. Stat. 15A-1340.14(b) (4) (2003). However, N.C. Gen. Stat. 15A- 1340.14(e) provides that
        [i]f the State proves by a preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points.
    Here, defendant stipulated that his out-of-state conviction for aggravated robbery (in Texas) was substantially similar to the North Carolina offense of robbery with a dangerous weapon, and made no objection when the court found him to be a level III felon based on that stipulation. He now contends that the court erred in relying on his stipulation and in not requiring the State to prove substantial similarity. Defendant failed to assign error to this issue, and moves this Court to amend the record on appeal to include it.
    “A stipulation of fact is an adequate substitute for proof in both criminal and civil cases.” State v. Smith, 291 N.C. 438, 441, 230 S.E.2d 644, 646 (1976). “There is no distinction between in-state and out-of-state convictions in N.C. Gen. Stat. § 15A-1340.14(a), nor does the section preclude the court from accepting stipulations by the attorneys.” State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000). Further, in Hanton, we noted
        In an appeal following a judgment entered based upon a 'plea bargain,' we have stated that if a defendant 'essentially stipulates to matters that moot the issues he could have raised under [N.C. Gen. Stat. § 15A-1444] subsection (a2), his appeal should be dismissed.' State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 196 (1998). We see no reason to treat cases in which a defendant is sentenced following a conviction by a jury differently from sentences entered as the result of a 'plea bargain.'

Id. Defendant having stipulated to both his out-of-state conviction and its similarity to a class D felony in North Carolina, we overrule this assignment of error.    Defendant next argues that the court erred in sentencing him for a count on which the jury found him not guilty. Because this clerical error has already been corrected by the trial court, we dismiss this assignment of error as moot.
    Defendant was convicted of eleven counts of aiding or assisting in the preparation of a fraudulent tax return and found not guilty of one count of the same offense. The two judgments entered, however, each show six offenses, including the count for which the jury found defendant not guilty. A trial court has the inherent authority to correct judgments containing clerical errors in order to make the record speak the truth. Shaver v. Shaver, 248 N.C. 113, 118, 102 S.E.2d 791, 795 (1958). The correction of errors is not limited to the term of court but may be done at any time upon motion or on its own motion. Id. Here, the trial court corrected the second judgment by filing a corrected judgment 20 January 2005, “nunc pro tunc 01-15-2004,” which indicated in its caption that it was “correcting clerical error.” The clerical error had no substantive effect on defendant's sentencing, and the correction's clerical nature is supported by the transcript. During sentencing, the court stated
        Madam Clerk, there will need to be two judgments. You may take the first six and then the last five. Start with 34 and go through whatever the first six are and then the last five.

Because the clerical error has been corrected on the amended judgment and commitment, defendant is not entitled to a newsentencing hearing. State v. Lineman, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999).
    Defendant also argues that the court erred in denying his motion to dismiss the charges for which the indictment failed to allege the tax year. We disagree.
    An “indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.” State v. Coker, 312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984). However, “[a] defendant waives objection to the impropriety of an indictment by not making a motion to dismiss the indictment.” State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 898, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459 (2000) (citing N.C. Gen. Stat. §§ 15A-952(e), 15A-955(1)). Here, defendant merely made a general objection to the indictment without specifying the grounds for the objection or the relief sought, stating “I'm objecting to the_my client has asked me to object to the lack of the tax year being put in the indictment[.]” Having failed to move to dismiss the indictment, defendant has waived his right to object to it now.
    No error.
    Judges STEELMAN and JACKSON concur.
    Report per Rule 30(e).

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