State v. Rouse

NO. COA13-1104

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Pender County
Nos. 10 CRS 050584, 10 CRS
050585
CHRISTOPHER AARON ROUSE

Appeal by defendant from judgments entered 15 March 2013 by

Judge Phyllis Gorham in Pender County Superior Court. Heard in

the Court of Appeals 9 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Charlene Richardson, for the State.

Irons & Irons, P.A., by Ben G. Irons, II, for defendant-
appellant.

ELMORE, Judge.

Christopher Aaron Rouse (defendant) appeals from two

judgments entered after a resentencing hearing. Because the

denial of defendant’s right to counsel at resentencing

constitutes structural error, we vacate the trial court’s

judgments and remand for further proceedings.

On 26 April 2011, defendant pled guilty to five counts of

second-degree sexual exploitation of a minor committed in
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November of 2009, and to attaining habitual felon status. He

was represented at this proceeding by appointed counsel Tonya

Turner. As specified in the parties’ plea arrangement, the

trial court sentenced defendant in the mitigated range to two

consecutive active prison terms of 77 to 102 months.

Defendant did not pursue an appeal. In 2012, however, he

filed a motion for appropriate relief (“MAR”) in superior court

challenging, inter alia, the calculation of his prior record

level (“Level”). The State conceded in response that, owing to

an error on the sentencing worksheet, “[d]efendant was sentenced

at Level III (5 points), but should have been sentenced at Level

II (3 points).” Citing its authority to correct errors of law

“on its own motion after entry of judgment[,]” see N.C. Gen.

Stat. § 15A-1420(d) (2013), the trial court allowed defendant’s

MAR in part and ordered that his case “be calendared for

resentencing without unnecessary delay.”

At his resentencing hearing on 15 March 2013, defendant

appeared “unrepresented” by counsel.1 Upon inquiry by the

prosecutor and the trial court, defendant acknowledged that he

1
Although the resentencing judgments list the appointed counsel
who represented defendant at his plea hearing, Tonya Turner, the
transcript of the 15 March 2013 resentencing hearing clearly
shows he was brought into court and required to proceed without
the assistance of counsel.
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had prior misdemeanor convictions for possession of drug

paraphernalia, misdemeanor larceny, and domestic criminal

trespass, and that these convictions resulted in “three prior

[record] points, placing [him] at level two for punishment

purposes.” Despite the absence of evidence or stipulation, the

trial court found as a mitigating factor that defendant has a

support system in the community. See N.C. Gen. Stat. § 15A-

1340.16(e)(18) (2013).2 After hearing from the parties, the

trial court again sentenced defendant to two consecutive

mitigated sentences of 77 to 102 months, as provided by his plea

agreement. The judgments entered by the trial court at

resentencing reflect defendant’s Level II status based on three

prior record points.

Defendant filed a timely pro se notice of appeal on 22

March 2013. The trial court signed appellate entries on 15

April 2013, appointing the Appellate Defender to represent

defendant on appeal. After filing the record in this Court,

counsel filed a petition for writ of certiorari as an

alternative basis for appellate review. While acknowledging

2
Because the pertinent materials are absent from the record on
appeal, it is unclear whether this mitigating factor was also
found at defendant’s original sentencing proceeding in April of
2011. We further note the record on appeal lacks the trial
court’s written findings of aggravating and mitigating factors
at resentencing.
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certain technical deficiencies in defendant’s notice of appeal,

defense counsel asked this Court to review the judgments

pursuant to N.C.R. App. P. 21(a)(1), in order to address

“constitutional issues” including the violation of defendant’s

right to counsel at resentencing. The State opposed this

Court’s issuance of the writ, arguing that denial of counsel is

not a cognizable claim on appeal from a guilty plea. See N.C.

Gen. Stat. § 15A-1444(a1)-(a2), (e) (2013). We note, however,

that the State did not move to dismiss defendant’s appeal.

Having examined defendant’s notice of appeal, we find its

contents sufficient to satisfy the jurisdictional requirements

of N.C.R. App. P. 4(b). Although defendant lists extraneous

file numbers for charges dismissed under his plea agreement3, his

notice of appeal also refers to the relevant file numbers–10 CRS

271, 50584-88–addressed in the resentencing judgments. See

N.C.R. App. P. 4(b). “[A] mistake in designating the judgment .

. . should not result in loss of the appeal as long as the

intent to appeal from a specific judgment can be fairly inferred

3
Any confusion regarding the file numbers resulted from the trial
court’s mistaken reference to 09 CRS 53285-89 at resentencing.
Defendant called attention to the court’s error and noted his
objection. The court ultimately corrected its judgments on 27
March 2013 to reflect the correct file numbers in 10 CRS 50584-
88. It appears defendant simply exercised due caution in
listing both 09 CRS 52385-89 and 10 CRS 50584-88 in his notice
of appeal filed 22 March 2013.
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from the notice and the appellee is not misled by the mistake.”

Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442,

443 (2006) (citations and quotations omitted). Furthermore,

while the notice of appeal fails to designate the court to which

his appeal is taken, as required by Rule 4(b), “defendant’s

intent to appeal is plain, and since this Court is the only

court with jurisdiction to hear defendant’s appeal, it can be

fairly inferred defendant intended to appeal to this Court.”

State v. Ragland, ___ N.C. App. ___, ___, 739 S.E.2d 616, 620,

disc. review denied, ___ N.C. ___, 747 S.E.2d 548 (2013).

On appeal, defendant argues only that the failure to

provide him with counsel at resentencing violated his

constitutional and statutory rights under U.S. Const. amend. VI,

N.C. Const. art. I, § 23, and N.C. Gen. Stat. § 7A-451(a)(1).

The State responds that defendant has no right to appeal the

denial of his right to counsel, inasmuch as his guilty plea

limited his appellate rights to the issues set forth in N.C.

Gen. Stat. § 15A-1444(a1)-(a2), (e) (2011).

As the State observes, the constitutional issue raised by

defendant does not fall within his limited right of appeal under

N.C. Gen. Stat. § 15A-1444. However, “it is permissible for

this Court to review pursuant to a petition for writ of
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certiorari during the appeal period a claim that the procedural

requirements of [G.S. Chapter 15A,] Article 58 [(Procedures

Relating to Guilty Pleas in Superior Court)] were violated.”

State v. Rhodes, 163 N.C. App. 191, 194, 592 S.E.2d 731, 733

(2004). Although Article 58 does not expressly address the

appointment of counsel to assist an indigent defendant who

pleads guilty in superior court, we believe a defendant’s

constitutional right to representation by counsel is implicit in

these statutory procedures. See N.C. Gen. Stat. §§ 15A-1012(a),

15A-1022(a)(5) (2013). We therefore allow defendant’s petition

for writ of certiorari for the purpose of reviewing his claim.

It is well-established that “sentencing is a critical stage

of a criminal proceeding to which the right to . . . counsel

applies.” State v. Davidson, 77 N.C. App. 540, 544, 335 S.E.2d

518, 521, writ denied, 314 N.C. 670, 337 S.E.2d 583 (1985).

Accordingly, “[t]his Court has held that the threat of

imprisonment at a resentencing hearing triggers an absolute

right to counsel under the Sixth Amendment and N.C. Gen. Stat. §

7A-451. There is no question but that Defendant was subject to

a threat of imprisonment at his resentencing hearing.” State v.

Boyd, 205 N.C. App. 450, 454 & n.1, 697 S.E.2d 392, 394 & n.1

(2010) (citing State v. Lambert, 146 N.C. App. 360, 364-65, 553
 -7-
S.E.2d 71, 75 (2001)). Indeed, defendant’s plea agreement

required that he serve a minimum of twelve years in prison.

The complete denial of counsel is one of the six forms of

structural error identified by the United States Supreme Court.

State v. Polke, 361 N.C. 65, 73, 638 S.E.2d 189, 194 (2006)

(citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799

(1963)). “[A] defendant’s remedy for structural error is not

dependant upon harmless error analysis; rather, such errors are

reversible per se.” State v. Garcia, 358 N.C. 382, 409, 597

S.E.2d 724, 744 (2004). Therefore, we must vacate the trial

court’s judgments and remand for resentencing. Boyd, at 456,

697 S.E.2d at 396 (“Defendant was deprived of his right to

counsel at the resentencing hearing and is entitled to be

resentenced.”).

Vacated and remanded for resentencing.

Judges McCULLOUGH and DAVIS concur.