State v. Cox
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-692 NORTH CAROLINA COURT OF APPEALS Filed: 18 November 2014 STATE OF NORTH CAROLINA v. Henderson County Nos. 12 CRS 51463-64 RYAN ALBERT COX Appeal by defendant from amended judgment dated 16 December 2013 by Judge Mark E. Powell in Henderson County Superior Court. Heard in the Court of Appeals 22 October 2014. Attorney General Roy Cooper, by Special Deputy General Jennie Wilhelm Hauser, for the State. Appellate Defender Appellate Defender defendant-appellant. Attorney Staples S. Hughes, by Assistant Nicholas C. Woomer-Deters, for McCULLOUGH, Judge. Ryan Albert Cox (“defendant”) appeals from judgment entered upon his plea of guilty to charges of statutory rape that was amended to impose a sentence authorized by N.C. Gen. Stat. § 15A-1340.17 (2011). For the following reasons, we affirm. I. Background -2Defendant was indicted by a Henderson County Grand Jury on two counts of statutory rape of a person who is 13, 14, or 15 years of age on 14 May 2012. Each count was a Class B1 felony as defendant was at least six years older than the victims. Defendant’s case came on for hearing in Henderson County Superior Court before the Honorable Alan Z. Thornburg on 10 June 2013. At the hearing, defendant pled guilty to both counts pursuant to a plea arrangement that the offenses would be consolidated for judgment and defendant would be sentenced in the mitigated range. evidence and Upon hearing the State’s summary of the defendant’s argument in favor of mitigating factors, the trial court accepted defendant’s plea, found as a mitigating factor that defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer at an early stage in the criminal process, consolidated the offenses for judgment, and entered judgment sentencing defendant in the mitigated range for a Class B1 felony at a prior record imprisonment. been level to a term of 221 to 278 months The trial court further found that defendant had convicted sexually II violent of a reportable offense involving conviction, the specifically physical, mental, a or sexual abuse of a minor, and ordered defendant to register as a -3sex offender and enroll in satellite based monitoring for a period of 30 years upon his release from imprisonment. Thereafter, by notice dated 22 August 2013, the Department of Public Safety informed the Clerk of Henderson County Superior Court that defendant’s “[m]aximum sentence does not correspond to the minimum sentence imposed.” On 16 December 2013, the issue came on for hearing in Henderson County Superior Court before the Honorable Mark E. Powell. Instead of vacating the original judgment and conducting a new sentencing hearing, the trial court merely modified the original judgment to correct the maximum sentence. sentence was In the modified judgment, defendant’s maximum increased to 326 months imprisonment, the corresponding maximum sentence for a 221 month minimum sentence under the version of N.C. Gen. Stat. § 15A-1340.17(f) in effect at the time defendant committed the sex offenses. Defendant gave oral notice of appeal from the modified judgment. II. Discussion In the first issue on appeal, defendant contends the trial court erred in modifying the original judgment to correct the maximum sentence. Defendant argues instead of modifying the original judgment, the proper remedy under this Court’s opinion in State v. Branch, 134 N.C. App. 637, 518 S.E.2d 213 (1999) was -4to vacate the judgment and conduct a de novo sentencing hearing because the trial judge acted under a misapprehension of the law. We are not persuaded. In Branch, the trial court originally consolidated breaking and entering offenses committed before and after the enactment of structured sentencing and sentenced the defendant to a single term under the Structured S.E.2d at 214. Sentencing Upon being notified Act. Id. at 639, 518 that offenses committed prior to the enactment of structured sentencing could not be consolidated with offenses committed after the enactment of structured sentencing, the trial court conducted a resentencing hearing, at which time defendant was sentenced for each offense separately under the laws in effect at the time each offense was committed. Id. at 639, 518 S.E.2d at 214-15. defendant’s sentence increased. Id. As a result, the In response to defendant’s argument on appeal that “the resentencing hearing was illegal because the trial court had no jurisdiction over the matter because the term of court had expired[,]” this Court held, “[i]f a judgment is invalid as a matter of law, North Carolina Courts have the authority to vacate the invalid sentence and resentence the defendant accordingly, even if the term has ended.” Id. at 641, 518 S.E.2d at 216. -5We find the present case distinguishable from Branch. The issue before this Court in the present case is not whether a resentencing hearing was lawful, but whether a resentencing hearing was required. As defendant acknowledges, the trial court “has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein[.]” 198, 202, 535 S.E.2d citation omitted). 875, 878 State v. Jarman, 140 N.C. App. (2000) (quotation marks and Yet the trial court “cannot, under the guise of an amendment of its records, correct a judicial error[.]” Id. (quotation marks and citation omitted). Here, defendant argues the imposition of an unlawful maximum sentence is not a clerical error, but a judicial error requiring a new sentencing hearing. imposing “exercised the his unlawful maximum discretion under Defendant contends that in sentence, a the trial misapprehension proper maximum sentences applicable to [defendant].” as judge to the Defendant reasons that a “determination of an appropriate minimum sentence is necessarily informed by its corresponding maximum sentence.” We disagree. -6In (2001), State this discretion Parker, Court in sentencing. v. made choosing 143 N.C. clear a App. that maximum 680, the 550 trial sentence S.E.2d judge under 174 had no structured This Court explained, The Structured Sentencing Act clearly provides for judicial discretion in allowing the trial court to choose a minimum sentence within a specified range. However, the language of the Act provides for no such discretion in regard to maximum sentences. The legislature did not provide a range of possible maximum sentences nor did it create a vehicle to alter the maximum sentences based on the circumstances of the case as with minimum sentences. Rather, the Act dictates that once a minimum sentence is determined, the “corresponding” maximum sentence is “specified” in a table set forth in the statute. Thus, [the statute] does not provide for judicial discretion in the determination of maximum sentences. Id. at 685-86, 550 S.E.2d at 177 (citations omitted). This Court then held the defendant’s “sentence was properly corrected by the trial court to reflect the maximum sentence required by statute.” Id. at 686, 550 S.E.2d at 177-78. In the present case, it appears the trial judge properly exercised his discretion to sentence defendant sentence at the top of the mitigated range. to a minimum The trial judge then imposed the corresponding maximum sentence provided in N.C. Gen. Stat. § 15A-1340.17(e) without considering the additional time required for sex offenses. See N.C. Gen. Stat. § 15A- -71340.17(f) (2011). simply amended In correcting the judgment, the trial judge defendant’s maximum sentence to reflect the required maximum sentence provided in N.C. Gen. Stat. § 15A1340.17(f). As we have held in Parker and other prior cases, see State v. Caufman, (unpublished), 184 N.C. we hold App. the 378, trial 646 S.E.2d court’s 442 correction (2007) of the maximum sentence in this case did not involve an exercise of judicial discretion and was clerical in nature; thus, amendment of the judgment was proper. In the second issue on appeal, defendant argues in the alternative that the trial court erred in failing to find that defendant accepted responsibility for his criminal conduct as a mitigating factor in the original judgment entered 10 June 2013. At the outset, we note defendant gave notice of appeal from the original judgment, but there indicating he perfected that appeal. is nothing in the record Nevertheless, assuming the issue is properly before this Court, we hold the trial court did not err. provided mitigating The plea arrangement entered into by the defendant that the factor[]” mitigated range. State and “agrees defendant to will the be presence of the sentenced in the In accordance with the arrangement, the trial -8court found voluntarily mitigating factor acknowledged 11.a., wrongdoing in that the connection defendant with the offense to a law enforcement officer at an early stage of the criminal range. process, and sentenced defendant in the mitigated We hold the failure of the trial court to find a second mitigating factor, which was similar and involved the same evidence as the first mitigating factor, was not an abuse of discretion and does not amount to prejudicial error. III. Conclusion For the reasons discussed above, he hold the trial court did not err in correcting defendant’s maximum sentence or in finding the mitigating factor. Affirmed. Judges CALABRIA and STEELMAN concur. Report per Rule 30(e).
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