State v Harris
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA01-1194 NORTH CAROLINA COURT OF APPEALS Filed: 21 May 2002 STATE OF NORTH CAROLINA v. Wake County No. 00CRS75861 DEBBIE HARRIS Appeal by defendant from judgment entered 14 May 2001 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 13 May 2002. Attorney General Roy A. Cooper, III, by Assistant Attorney General Claud R. Whitener, III, for the State. James M. Bell for defendant-appellant. HUNTER, Judge. Debbie Harris ( defendant ) pled guilty to one count of felony larceny in January 2001. Judge Donald W. Stephens imposed a suspended sentence of nine to eleven months imprisonment and placed defendant on supervised probation for a period of thirty-six months. A report filed 29 March 2001 charged defendant with several probation violations, including missed curfews, failure to participate in court-ordered drug treatment, and testing positive for cocaine on three occasions. Defendant violations at a hearing on 14 May 2001. admitted these Judge Jones revoked probation and activated defendant s sentence. Defendant gave -2notice of appeal in open court. We affirm but remand for corrections in the judgment. Counsel appointed to represent defendant on appeal has filed an Anders brief indicating that he is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal. record He asks that this Court conduct its own review of the for possible prejudicial error. Counsel has filed documentation with the Court showing that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of her right to file written arguments with the Court and providing her with a copy of the documents pertinent to her appeal. Defendant has filed no additional arguments of her own with this Court, and a reasonable time for such arguments has passed. In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom and whether the appeal is wholly frivolous. Although we conclude that the appeal is frivolous, we have found two clerical errors on the written judgment which warrant correction. First, a handwritten x on the judgment erroneously indicates that [i]n the original Judgment Suspending Sentence, the Court sentenced the defendant . . . from the minimum durations based upon the Findings of Aggravating and Mitigating Factors. Judge Stephens original judgment clearly reflects that defendant s suspended sentence was within the presumptive range and was made without findings as to -3aggravating and mitigating factors. Second, the instant judgment provides for an active sentence of seven to nine months, which would be from the mitigated range for defendant s class of offense and prior record level. (1999). See N.C. Gen. Stat. § 15A-1340.16(c) The hearing transcript reveals Judge Jones intention to activate the sentence originally follows: [T]he sentence of the Honorable Donald Stephens imposed on 1-5-01 is hereby activated. imposed upon defendant, as The defendant is sentenced to a term in the North Carolina Department of Corrections of not less than 9, nor more than 11 months. While we believe the record conclusively establishes this discrepancy as a clerical error, we note that a trial court may not substitute a mitigated sentence for a presumptive sentence when revoking a defendant s probation. See N.C. Gen. Stat. § 15A-1344(d1) (1999). We affirm the decision of the trial court but remand with instructions to correct the judgment by striking the unsupported notation that the trial court rendered findings of factors in aggravation and mitigation, State v. Hilbert, 145 N.C. App. 440, 446, 549 S.E.2d 882, 886 (2001), and by correcting the recorded commitment to reflect announced in open court. the sentence of nine to eleven months See State v. Lawing, 12 N.C. App. 21, 23, 182 S.E.2d 10, 11-12 (1971). Affirmed; remanded with instructions. Judges MARTIN and BRYANT concur. Report per Rule 30(e).
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