STATE OF NORTH CAROLINA
v. Stokes County
Nos. 03 CRS 1379, 50233
CALVIN LAMONT BROWN 03 CRS 50234, 50276
03 CRS 50284
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert C. Montgomery, for the State.
Russell J. Hollers, III, for defendant-appellant.
MARTIN, Chief Judge.
On 21 May 2003, defendant entered an Alford plea to charges of
first-degree burglary, assault with a deadly weapon with intent to
kill inflicting serious injury (“AWDWIKISI”), assault inflicting
serious bodily injury, assault with a deadly weapon inflicting
serious injury (“AWDWISI”), and conspiracy to commit assault with
a deadly weapon inflicting serious injury. Judge John O. Craig
sentenced defendant to the following aggravated prison terms:
(1) 03 CRS 50233: 109 to 140 months for
AWDWIKISI;
(2) 03 CRS 50234: 77 to 102 months for
first-degree burglary, consecutive to the
sentence in 03 CRS 50233;
(3) 03 CRS 50284: 24 to 29 months for
conspiracy, consecutive to the sentence in 03
CRS 50234;
(4) 03 CRS 1379: 19 to 36 months for assault
inflicting serious bodily injury, concurrent;
and
(5) 03 CRS 50276: 29 to 44 months for
AWDWISI, concurrent.
State v. Brown, 165 N.C. App. 270, 271, 598 S.E.2d 263, 264 (2004).
Defendant filed an appeal pursuant to Anders v. California,
386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C.
99, 331 S.E.2d 665 (1985). Id. Upon a review of the record, we
found no error as to the judgments entered in 03 CRS 50233 and
50284. Id. at 272, 598 S.E.2d at 265. Because the record lacked
copies of the judgments in 03 CRS 1379, 50234 and 50276, however,
we remanded the case for appointment of new counsel to perfect
defendant's appeal from these judgments. Id. (citing Anders, 386
U.S. at 744, 18 L. Ed. 2d at 498).
In his appeal from the judgments in 03 CRS 1379, 50234, and
50276, defendant challenged his aggravated sentences under the
then-recent holding in Blakely v. Washington, 542 U.S. 296, 159 L.
Ed. 2d 403 (2004). State v. Brown, __ N.C. App. __, 624 S.E.2d 433
(2006) (unpublished) (“Brown II”). Because the aggravating factors
used to enhance his sentences were not admitted by defendant or
found by a jury beyond a reasonable doubt, we held that “all three
judgments must be remanded for resentencing in accordance with
Blakely” and our Supreme Court's decision in State v. Allen, 359
N.C. 425, 615 S.E.2d 256 (2005), opinion withdrawn, 360 N.C. 569,
635 S.E.2d 899 (2006). Id. (emphasis added). At his resentencing hearing on remand from Brown II, defendant
stipulated to his prior record level II and was sentenced to
presumptive prison terms, as follows:
(1) 03 CRS 50233: 100 to 129 months for
AWDWIKISI;
(2) 03 CRS 50234: 77 to 102 months for
first-degree burglary, consecutive to the
sentence in 03 CRS 50233;
(3) 03 CRS 50284: 19 to 23 months for felony
conspiracy, consecutive to the sentence in 03
CRS 50234;
(4) 03 CRS 1379: 19 to 23 months for assault
inflicting serious bodily injury, concurrent;
and
(5) 03 CRS 50276: 29 to 44 months for
AWDWISI, concurrent.
We note that the trial court exceeded the scope of its mandate on
remand by resentencing defendant in 03 CRS 50233 and 50284.
However, the State raised no objection below and has not appealed
from the judgments. In light of the trial court's statutory
authority to provide post-conviction relief on its own motion under
N.C. Gen. Stat. § 15A-1420(d) (2006), we cannot say the court's
judgments are void for lack of jurisdiction. Accordingly, we
decline to disturb them ex mero motu.
In his lone argument on appeal, defendant claims the trial
court erred by altering the sentence rendered in open court in 03
50234 outside of his presence. See State v. Davis, 167 N.C. App.
770, 776, 607 S.E.2d 5, 9 (2005) (“A defendant has a right to be
present at the time the sentence was imposed.”) (citing State v.
Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999)). Heasserts that the court did not announce that the sentence in 03 CRS
50234 was to run consecutively to the sentence imposed in 03 CRS
50233, as reflected on the written judgment.
Because he entered an Alford plea, defendant's right of direct
appeal is confined to the following issues:
(1) whether the sentence is supported by the
evidence (if the minimum term of imprisonment
does not fall within the presumptive range);
(2) whether the sentence results from an
incorrect finding of the defendant's prior
record level under N.C. Gen. Stat. §
15A-1340.14 . . .; (3) whether the sentence
constitutes a type of sentence not authorized
by N.C. Gen. Stat. § 15A-1340.17 . . . for the
defendant's class of offense and prior record
or conviction level; (4) whether the trial
court improperly denied the defendant's motion
to suppress; and (5) whether the trial court
improperly denied the defendant's motion to
withdraw his guilty plea.
State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004)
(citing State v. Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d
545, 546-47 (2003); see also N.C. Gen. Stat. §§ 15A-1444(a1), (a2),
(e) (2006)). Where a defendant's assignment of error falls outside
this limited appeal of right, it is not properly before this Court
for review. See State v. Absher, 329 N.C. 264, 264, 404 S.E.2d
848, 849 (1991). “Furthermore, if during plea negotiations the
defendant essentially stipulated to matters that moot the issues he
could have raised [within his limited appeal of right] . . . his
appeal should be dismissed.” State v. Hamby, 129 N.C. App. 366,
369, 499 S.E.2d 195, 196 (1998) (citation omitted).
Defendant's sentence of 77-102 months in 03 CRS 50234 lies at
the top of the presumptive range for the Class D felony of first-degree burglary and his Prior Record Level II, to which he
stipulated at re-sentencing. See N.C. Gen. Stat. § 15A-1340.17(c),
(e) (2006). The re-imposition of a consecutive sentence on remand
neither “increase[d] the penalty for a crime beyond the prescribed
statutory maximum” nor required the court to find any fact beyond
the admitted elements of the offense. Blakely, 542 U.S. at 301,
159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466,
490, 147 L. Ed. 2d 435, 455 (2000)). Therefore, defendant's
assignment of error does not concern the evidentiary support for
his sentence or any other issue within the purview of N.C. Gen.
Stat. § 15A-1444(a1) or (a2). Because defendant has failed to
present an assignment of error that is cognizable on direct appeal,
we dismiss his appeal. See Hamby, 129 N.C. App. at 370, 499 S.E.2d
at 197.
We note that the transcript of the resentencing hearing
reflects the court's intention to impose a consecutive sentence in
03 CRS 50234. Before announcing defendant's sentences, the court
acknowledged that he originally received a sentence in 03 CRS 50234
that ran consecutively to his sentence in 03 CRS 50233:
THE COURT: . . . [T]he Judge sentenced him on
the first-degree burglary in [03 CRS] 50234 to
run at [the] expiration of [03 CRS] 50233.
The court confirmed its understanding of defendant's consecutive
and concurrent sentences with defense counsel:
THE COURT: . . . Just so I'm correct, do
you recall at sentencing that he had three
consecutive sentences and two were run
concurrent? Is that your recollection on
that?
[DEFENSE COUNSEL]: I think so, Judge. . . .
THE COURT: . . . I have five judgments. And
three were consecutive and two [Judge Craig]
gave a sentence, but did not run [it] at [the]
expiration of anything. So based on that I
assumed that, therefore, they're concurrent.
(Emphasis added). Finally, after announcing defendant's five
sentences, the judge expressly stated as follows:
For the record, [the] only deviation the Court
did was just change [the sentences] from
aggravated to presumptive, but gave the same
sentence structure that the Honorable Judge
Joe Craig g[a]ve at [the] previous hearing.
(Emphasis added). Based on the court's statements, we believe the
judgment rendered in open court included a consecutive sentence in
03 CRS 50234 and was thus consistent with the written judgment.
Dismissed.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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