State v Shipp
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-415 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 STATE OF NORTH CAROLINA v. Alamance County Nos. 10 CRS 53550, 53552-53, 10 CRS 53555-57, 53589, 10 CRS 53592-93 DAMIEN KENARD SHIPP Appeal by Defendant from judgments 2010 by Judge Orlando F. Hudson in County. entered 27 Superior Court, September Alamance Heard in the Court of Appeals 1 November 2011. Attorney General Roy Cooper, by Special General Valerie L. Bateman, for the State. Deputy Attorney from judgments Kimberly P. Hoppin for Defendant-Appellant. McGEE, Judge. Damien Kenard Shipp (Defendant) appeals entered upon his plea of guilty to multiple charges of larceny and breaking and entering, and one charge of speeding to elude arrest. Defendant contends that the trial court erred by: (1) improperly calculating his prior record level; (2) committing clerical errors on the face of the judgments; and (3) ordering Defendant to pay restitution without sufficient evidence. We -2find no error in part and remand in part for the correction of clerical errors. Defendant pleaded guilty to eight counts of breaking and entering, seven counts of larceny, and one count of speeding to elude arrest on 27 September 2010. Pursuant to the plea agreement, several other charges were dismissed by the State. The charges stemmed from a series of house break-ins perpetrated by Defendant and a co-defendant on the morning of 3 June 2010. Several items were stolen and several of the homes sustained property damage. Defendant and his accomplice led the police on a high-speed chase before being apprehended. The trial court accepted Defendant's plea and determined Defendant to be a prior record level II offender based on four prior record level points. charges into five The trial court consolidated the judgments, and sentenced Defendant in the presumptive range to five consecutive terms of six to eight months each. in costs, Defendant was ordered to pay a total of $3,892.00 attorney's fees, and restitution. From judgments entered, Defendant appeals. First, Defendant contends that the trial court erred by miscalculating his prior record level. He argues that two of the four misdemeanors used to calculate his prior record level -3shared the same conviction date. Defendant cites to N.C. Gen. Stat. § 15A-1340.14(d), which states that "[i]f an offender is convicted district of more court, than only one one offense of the determine the prior record level. only one of the two in a single convictions session of used" to is Defendant asserts that, since misdemeanors could have been used in determining his prior record level, he is entitled to a new sentencing hearing. While we N.C. Gen. Stat. § 15A-1340.14(d) (2009). agree that two misdemeanors with the same conviction date cannot both be used to determine a prior record level, the error is harmless where the correct calculation does not affect level. the determination of a defendant's prior record See State v. Smith, 139 N.C. App. 209, 220, 533 S.E.2d 518, 524 (2000) (error in calculating a defendant's prior record level is harmless if it does not affect the determination of the prior record subtracted level). from the In point this total case, even to account if one for point the was misused misdemeanor, Defendant's prior record level would remain a level II. Therefore, Defendant is not entitled to a new sentencing hearing. Defendant next argues that the judgments contain clerical errors which require correction. Each judgment indicates that -4Defendant is a prior record level III offender based on six prior record level points, even though the prior record level worksheet shows the trial court determined Defendant to be a prior record level II with four points. Defendant notes that his sentences fall within the presumptive range for a level II offender for the corresponding class of offense. After reviewing the record, we conclude that the judgments contain obvious clerical errors regarding the prior record level points and the prior record level. Therefore, the case must be remanded to the trial court for a correction of these clerical errors. See State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (clerical errors must be corrected in order for the record to accurately reflect the truth). Finally, Defendant argues the trial court erred in ordering him to pay $3,892.00 in restitution where the amount is not supported by sufficient evidence. Defendant argues that he did not agree to any amount of restitution as part of the plea agreement, and that no testimony was presented by the State regarding restitution. The trial court may order restitution only in an amount which is supported by competent evidence. N.C. 720, 726, 459 S.E.2d 192, 196 State v. Wilson, 340 (1995). A prosecutor's -5unsworn statement, standing alone, is insufficient to support an award of restitution. Id. at 727, 459 S.E.2d at 196. regarding may nature. restitution be testimonial or Evidence documentary in State v. Mauer, __ N.C. App. __, __, 688 S.E.2d 774, 778 (2010). We note first that the actual amount of restitution ordered by the trial court was $3,017.00, not $3,892.00. Further, the State has included, as part of the record, documentary evidence in the form of victim impact statements regarding property loss and damage, compensate that six of detail the the victims related to the break-ins. specific for the amounts needed unrecovered to expenses The transcript of the plea hearing indicates that this documentary evidence was submitted to the trial court as part of the discussion on restitution. After reviewing the documentary evidence, we conclude that the amount of restitution is supported by the evidence submitted to the trial court, and the trial court did not err in ordering Defendant to pay restitution in the amount of $3,017.00. No error in part; remanded in part clerical errors. Judges ELMORE and McCULLOUGH concur. Report per Rule 30(e). for correction of
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