Summary
holding no error in assignment of points based upon parties’ stipulations
Summary of this case from State v. ArringtonOpinion
No. COA11–622.
2012-07-17
STATE of North Carolina v. Robin Lindell BROWN.
Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel Shatz, for Defendant–Appellant.
Appeal by Defendant from judgments entered 3 August 2005 by Judge Clifton W. Everett, Jr. and order entered 11 June 2010 by Judge Cy A. Grant in Superior Court, Bertie County. Heard in the Court of Appeals 15 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel Shatz, for Defendant–Appellant.
McGEE, Judge.
Robin Lindell Brown (Defendant) pleaded guilty on 3 August 2005 to first-degree burglary, four counts of felony breaking or entering, three counts of felony larceny, and two counts of felony possession of stolen goods. Defendant filed a written notice of appeal in Bertie County Superior Court dated 15 August 2005. No further action was taken by any party in Defendant's case until Defendant filed a motion for appropriate relief (MAR) with the trial court, dated 30 October 2009. After a hearing on Defendant's MAR, the trial court entered an order on 11 June 2010, denying Defendant's MAR. From the trial court's 11 June 2010 order, Defendant filed written notice of appeal on 21 June 2010 in Bertie County Superior Court. More than a year later, on 29 July 2011, Defendant filed a petition for writ of certiorari with this Court.
I. Petition for Writ of Certiorari
In Defendant's petition for writ of certiorari, he addresses two issues. Defendant seeks to obtain appellate review of (1) the sufficiency of the factual basis of his guilty plea and (2) whether the trial court had jurisdiction to rule on his MAR. As to the factual basis for Defendant's guilty plea, we note that the N.C. Rules of Appellate Procedure require that a petition for a writ of certiorari “be filed without unreasonable delay [.]” N.C.R.App. P. 21(c). Defendant entered his guilty plea on 3 August 2005 and filed his petition for a writ of certiorari on 29 July 2011. Defendant has not persuaded this Court that a delay of nearly six years was not an “unreasonable delay[.]” We therefore deny Defendant's petition for a writ of certiorari as to the factual basis for his guilty plea. As to a review of Defendant's MAR, because the delay was only approximately thirteen months, we grant his petition for a writ of certiorari to review whether the trial court had jurisdiction to determine his MAR.
II. Motion for Appropriate Relief
From Defendant's guilty plea, he filed a written notice of appeal dated 15 August 2005 (Defendant's 2005 appeal). The record in this case indicates that no further action was taken with respect to Defendant's 2005 appeal and, in his brief, Defendant states that he does not know why no further action was taken. This Court has no record of Defendant's 2005 appeal and, in the present case, there is no indication in the record that Defendant's 2005 appeal was dismissed.
N.C. Gen.Stat. § 15A–1448(3) (2011) provides that “[t]he jurisdiction of the trial court with regard to [a] case is divested, except as to actions authorized by G.S. 15A–1453, when notice of appeal has been given and the period described in (1) and (2) has expired.” The actions authorized by N.C. Gen.Stat. § 15A–1453 include:
(a) While an appeal is pending in the appellate division, the court in which the defendant was convicted has continuing authority to act with regard to the defendant's release pursuant to Article 26, Bail.
(b) The appropriate court of the appellate division may direct that additional steps be taken in the trial court while the appeal is pending, including but not limited to:
(1) Appointment of counsel.
(2) Hearings with regard to matters relating to the appeal.
(3) Taking evidence or conducting other proceedings relating to motions for appropriate relief made in the appellate division, as provided in G.S. 15A–1418.
N.C. Gen.Stat. § 15A–1453 (2011).
There is no indication in the record that this Court directed “that additional steps be taken in the trial court[.]” Id. Although Defendant took no further action as to his 2005 appeal, the filing of a notice of appeal raises jurisdictional issues. We are compelled to conclude that, without documentation of an order dismissing Defendant's 2005 appeal, the trial court remains divested of jurisdiction. As to Defendant's 2005 appeal, we note that neither the transcript nor the record on appeal was filed with this Court by, or on behalf of, Defendant. Rule 7 of the N.C. Rules of Appellate Procedure provides:
In criminal cases where there is no order establishing the indigency of the defendant for the appeal, the defendant shall contract for the transcription of the proceedings as in civil cases.
When there is an order establishing the indigency of the defendant, unless the trial judge's appeal entries specify or the parties stipulate that parts of the proceedings need not be transcribed, the clerk of the trial tribunal shall order a transcript of the proceedings by serving the following documents upon either the court reporter(s) or neutral person designated to prepare the transcript: a copy of the appeal entries signed by the judge; a copy of the trial court's order establishing indigency for the appeal; and a statement setting out the name, address, telephone number and e-mail address of appellant's counsel. The clerk shall make an entry of record reflecting the date these documents were served upon the court reporter(s) or transcriptionist.
N.C.R.App. P. 7(2). In the present case, the record does not contain any order establishing the indigency of Defendant for Defendant's 2005 Appeal.
Rule 25 of the N.C. Rules of Appellate Procedure provides:
If after giving notice of appeal from any court, commission, or commissioner the appellant shall fail within the times allowed by these rules or by order of court to take any action required to present the appeal for decision, the appeal may on motion of any other party be dismissed. Prior to the filing of an appeal in an appellate court, motions to dismiss are made to the court, commission, or commissioner from which appeal has been taken; after an appeal has been filed in an appellate court, motions to dismiss are made to that court. Motions to dismiss shall be supported by affidavits or certified copies of docket entries which show the failure to take timely action or otherwise perfect the appeal and shall be allowed unless compliance or a waiver thereof is shown on the record, or unless the appellee shall consent to action out of time, or unless the court for good cause shall permit the action to be taken out of time.
Motions heard under this rule to courts of the trial divisions may be heard and determined by any judge of the particular court specified in Rule 36 of these rules; motions made under this rule to a commission may be heard and determined by the chair of the commission; or if to a commissioner, then by that commissioner. The procedure in all motions made under this rule to trial tribunals shall be that provided for motion practice by the N.C. Rules of Civil Procedure; in all motions made under this rule to courts of the appellate division, the procedure shall be that provided by Rule 37 of these rules.
N.C.R.App. P. 25(a) (emphasis added).
In the record before us, neither the transcript nor the record on appeal regarding Defendant's 2005 appeal has been filed with this Court. As provided by N.C.R.App. P. 25, prior to the filing of an appeal with this Court, a motion to dismiss must be made to the trial court by a party seeking dismissal. In the case before us, the record does not contain a motion filed by a representative of the State to dismiss Defendant's 2005 appeal, nor an order dismissing Defendant's 2005 appeal. Thus, Defendant's 2005 appeal was still pending when Defendant filed his MAR.
N.C. Gen.Stat. § 15A–1418(a) (2011) provides in pertinent part:
When a case is in the appellate division for review, a motion for appropriate relief based upon grounds set out in G.S. 15A–1415 must be made in the appellate division. For the purpose of this section a case is in the appellate division when the jurisdiction of the trial court has been divested as provided in G.S. 15A–1448, or when a petition for a writ of certiorari has been granted. When a petition for a writ of certiorari has been filed but not granted, a copy or written statement of any motion made in the trial court, and of any disposition of the motion, must be filed in the appellate division.
When a trial court rules on an MAR which has been filed after notice of appeal, the trial court lacks jurisdiction to do so, and the order therefrom must be vacated. State v. Williams, 177 N.C.App. 725, 731, 630 S.E.2d 216, 221 (2006) (“In the instant case, the trial court entered judgments ... on 10 September 2003. A written notice of appeal was filed on 23 September 2003. Defendant, therefore, gave timely notice of appeal because the appeal was taken within 14 days after entry of the judgment.... Pursuant to G.S. § 15A–1448(a)(3), the trial court was without jurisdiction to rule on defendant's MAR filed 25 March 2004 because his appeal was pending. The proper venue for filing the MAR would have been in this Court pursuant to N.C. Gen.Stat. § 15A–1418(a) (2005)”); see alsoN.C. Gen.Stat. § 15A–1418(a) (2011) (“When a case is in the appellate division for review, a motion for appropriate relief based upon grounds set out in G.S. 15A–1415 must be made in the appellate division. For the purpose of this section a case is in the appellate division when the jurisdiction of the trial court has been divested as provided in G.S. 15A–1448[.]”). We therefore must vacate the trial court's 11 June 2010 order denying Defendant's motion for appropriate relief.
III. Prior Record Level
The only remaining issue for which Defendant had a direct right of appeal was the calculation of his prior record level. Given the unusual status of this case, we treat the current appellant's brief as an appellate argument regarding Defendant's 2005 appeal. We note that Defendant's record on appeal contains “assignments of error,” as were required under the prior version of our Rules of Appellate Procedure for cases appealed prior to 1 October 2009. SeeN.C.R.App. P. 10(c) (2009). We also note that Defendant has a direct right of appeal from the trial court's alleged miscalculation of his prior record level pursuant to N.C. Gen.Stat. § 15A–1444 (2005). SeeN.C.G.S. § 15A–1444(a2)(1) (2005) (“A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed: (1) Results from an incorrect finding of the defendant's prior record level[.]”).
The State has filed a motion to dismiss Defendant's appeal on the grounds that, “while it appears that the initial failure to file appellate entries might have been due to an administrative error, Defendant did not recognize and attempt to correct the problem until more than five years” later. Citing State v. Grundler, 251 N.C. 177, 111 S.E.2d 1 (1959), the State argues that “Defendant has presented no explanation for this delay and has failed to present facts to show excusable neglect.” We note that Grundler involved two defendants filing a motion to set aside a trial court's order dismissing their appeal on the grounds of excusable neglect. Id. at 186, 111 S.E.2d at 7. As we have discussed above, Defendant's 2005 appeal has not been dismissed by the trial court. The record does not show any violation of the rules of appellate procedure on Defendant's part. We therefore deny the State's motion to dismiss Defendant's appeal.
Defendant contends the trial court erred in calculating his prior record level. Defendant's prior record level worksheet lists two convictions for “sell/deliver cocaine[.]” The trial court classified these convictions as Class G felonies. At the time Defendant committed the crime for which he was being sentenced, sale of cocaine was classified as a Class G felony, while delivery of cocaine was classified as a Class H felony. N.C. Gen.Stat. § 90–95 (2005). Defendant argues that the trial court erred by classifying his prior convictions as Class G felonies because,
from 1990 until 1997, selling cocaine and delivering cocaine were alternate means of satisfying the elements of the single offense of “sell or deliver cocaine,” and ... [therefore] it was not necessary for the State [at the time of Defendant's prior convictions] to establish whether a defendant sold cocaine or delivered cocaine.
In other words, the convictions on Defendant's prior record level worksheet could have, at the time he incurred them, been based on activity which would, at the time Defendant committed the crime for which he was being sentenced in the present case, not have risen to the level of a class G felony.
“In determining the prior record level, the classification of a prior offense is the classification assigned to that offense at the time the offense for which the offender is being sentenced is committed.” N.C. Gen.Stat. § 15A–1340.14(c) (2011). However, in the present case, Defendant stipulated to his prior record level worksheet. In State v. Wingate, ––– N.C.App. ––––, 713 S.E.2d 188 (2011), this Court addressed a defendant's stipulation to the classification of his prior record level with respect to sale and delivery of controlled substances.
Here, defendant stipulated that he was previously convicted in North Carolina of one count of conspiracy to sell or deliver cocaine and two counts of selling or delivering cocaine. Defendant stipulated that these convictions were Class G felonies. Defendant now contends that there was insufficient proof to establish whether he had previously been convicted of one count of conspiracy to sell cocaine and two counts of selling cocaine, which are Class G felonies, or whether he was convicted of one count of conspiracy to deliver cocaine and two counts of delivery of cocaine, which are Class H felonies. Defendant asserts that whether he was convicted of delivering cocaine or whether he was convicted of selling cocaine was a question of law, not fact, and, therefore, his stipulation to the Class G felonies was invalid. We disagree and hold that, in this case, the class of felony for which defendant was previously convicted was a question of fact, to which defendant could stipulate, and was not a question of law requiring resolution by the trial court.
....
The prior conviction worksheet expressly sets forth the class of offense to which a defendant stipulates and defendant in this case has not cited to any authority, nor have we found any, that requires the trial court to ascertain, as a matter of law, the class of each offense listed.
Id. at ––––, 713 S.E.2d at 189–90 (citation omitted). Thus, we find the trial court did not err in assigning four points rather than two points for Defendant's prior “sale/deliver” conviction.
Defendant also argues that the trial court erred in assigning one point to his prior record level because “all the elements of the present offense are included in any prior offense[.]” Defendant contends that, as to his first-degree burglary and possession of stolen goods convictions, the trial court erred because Defendant had no prior convictions with the elements thereof. However, assuming arguendo the trial court did err, the error resulted only in adding one point to Defendant's prior record level calculation. The trial court determined that Defendant had a total of eleven points, which placed Defendant in prior record level IV. Prior record level IV is assigned to defendants with nine to fourteen prior record level points. Removing the one challenged point the trial court assigned Defendant, Defendant would still have ten prior record level points, and he would still classify as a prior record level IV. Thus, any error committed by the trial court was not prejudicial. We therefore find no prejudicial error in Defendant's sentencing.
IV. Conclusion
We have concluded that Defendant's petition for a writ of certiorari was not filed within a reasonable time after his guilty plea. We therefore deny Defendant's petition for a writ of certiorari as to his argument concerning the factual basis for his guilty plea. In contrast, Defendant's petition for a writ of certiorari was filed within a reasonable time of the trial court's denial of Defendant's MAR. Because of the timing of the filings, as well as the jurisdictional issues raised by Defendant's argument concerning his MAR, we grant his petition for a writ of certiorari as to that issue. The trial court did not have jurisdiction to rule on Defendant's MAR and we must therefore vacate the trial court's order denying Defendant's MAR. As Defendant had a direct right of appeal to challenge the trial court's calculation of his prior record level pursuant to N.C.G.S. § 15A–1444(a2)(1), we reached this argument on the merits. As discussed above, we find no prejudicial error in the trial court's calculation of Defendant's prior record level.
Vacated in part, no prejudicial error in part. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).