Converted WP file 070320-1

On writ of certiorari to review the judgments entered 14 August 2006 by Judge Frank R. Brown in Wilson County Superior Court. Heard in the Court of Appeals 17 September 2007.

Attorney General Roy Cooper, by Assistant Attorney General Janette Soles Nelson, for the State.

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

ELMORE, Judge.

    On 6 February 2006, Philip Randall Carter (defendant) was indicted on three counts of felonious worthless check. On 4 April 2006, defendant, represented by counsel, entered into a negotiated plea agreement with the State. In exchange for the pleas of guilty in case numbers O5 CRS 55743 and 05 CRS 56047, the State agreed that defendant would be placed on probation for five years and would pay restitution in the amount of $442.85 per month. On 14 August 2006, defendant, appearing with counsel, pled guilty without a plea agreement in case numbers 05 CRS 55743, 05 CRS 56047, and 06 CRS 52399. The trial court accepted the guilty pleas and sentenceddefendant to three consecutive terms of six to eight months' imprisonment. The trial court suspended the sentences, placed defendant on supervised probation for five years, and ordered him to pay restitution in the amount of $38,328.00. Furthermore, the trial court ordered that defendant remain in custody “until he pays his money and clears [it] with his probation officer.”
    On 16 August 2006, this Court granted defendant's petition for writ of habeas corpus and ordered his release because it appeared that he was being unlawfully restrained. That same day, defendant was brought before the trial court without counsel being present. The trial court modified the judgment in case number 05 CRS 55743, and ordered defendant to pay $1,000.00 before being released from jail, and to pay restitution in the amount of $4,500.00 on the first day of each month, beginning 1 September 2006. On 28 August 2006, defendant gave notice of appeal to this Court. On 30 August 2006, the trial court rejected defendant's appeal, suggesting that he file for a writ of certiorari from this Court .
    On 18 September 2006, defendant filed a petition for writ of certiorari for the purpose of reviewing the judgments entered on 14 August 2006 by the trial court. Defendant also filed a petition for writ of supersedeas for the purpose of staying the restitution schedule. On 4 October 2006, this Court granted the petitions for writ of certiorari and writ of supersedeas.
    We first consider whether the trial court erred in substantively modifying the judgment suspending sentence in case number 05 CRS 55743 outside the presence of defendant's counsel. “[S]entencing is a critical stage of the criminal proceeding at which [a defendant] is entitled to the effective assistance of counsel.” State v. Davidson, 77 N.C. App. 540, 544, 335 S.E.2d 518, 521 (1985) (citing Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 402 (1977). “Waiver of counsel may not be presumed from a silent record. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” State v. Morris, 275 N.C. 50, 59, 165 S.E.2d 245, 251 (1969) (citations and quotations omitted). In the instant case, defendant was entitled to be represented by counsel, and the record is silent regarding why he appeared without counsel. Accordingly, case number 05 CRS 55743 is vacated and the matter remanded to the trial court for resentencing.
    We next consider whether the trial court abused its discretion by imposing a restitution repayment schedule without taking into consideration defendant's ability to pay. According to N.C. Gen. Stat. § 15A-1340.36:
        In determining the amount of restitution to be made, the court shall take into consideration the resources of the defendant including all real and personal property owned by the defendant and the income derived from the property, the defendant's ability to earn, the defendant's obligation to support dependants, and any other matters that pertain to the defendant's ability to make restitution, but the court is not required to make findings of fact or conclusions of law on these matters.

N.C. Gen. Stat. § 15A-1340.36(a)(2005). Here, defendant, due to the collapse of his business, paid off several creditors andsubcontractors through his limited cash reserves, and by selling two homes worth approximately $134,000.00. The State argues that the trial court sufficiently took into consideration defendant's ability to pay the restitution repayment schedule, and that defendant's liquidation of assets and payment of debt was evidence of his ability to pay restitution. The State further argues that defendant's acceptance of a job which paid a base salary of at least $30,000.00, plus bonuses, was further proof of his ability to pay. We disagree. No evidence was presented concerning defendant's remaining assets. Considering that defendant will earn wages of approximately $2,500.00 per month, and the trial court required defendant to pay $4,500.00 per month as restitution, common sense dictates that defendant will be unable to comply with this repayment schedule. State v. Hayes, 113 N.C. App. 172, 175, 437 S.E.2d 717, 719 (1993); see also State v. Mucci, 163 N.C. App. 615, 627, 594 S.E.2d 411, 419 (2004). Accordingly, the restitution award is vacated and remanded to the trial court for an appropriate award based on consideration of defendant's ability to comply. See State v. Smith, 90 N.C. App. 161, 168, 368 S.E.2d 33, 38 (1988); see also Hayes, 113 N.C. App. at 175, 437 S.E.2d at 719.
    We vacate case number 05 CRS 55743 and remand the matter to the trial court for resentencing. We remand case numbers 05 CRS 56047 and 06 CRS 52399 for a new restitution award.
    Judges WYNN and BRYANT concur.
    Report per Rule 30(e).

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