IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-271
Filed: 6 September 2016
Buncombe County, No. 11 CRS 64896, 15 CRS 639
STATE OF NORTH CAROLINA
v.
CHRISTINA RENEE ALLEN
Appeal by defendant from judgment entered 11 August 2015 by Judge Alan Z.
Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 24
August 2016.
Attorney General Roy Cooper, by Assistant Attorney General Tracy Nayer, for
the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for defendant-appellant.
TYSON, Judge.
Christina Renee Allen (“Defendant”) appeals from judgment entered after she
pled guilty to felony failure to appear and misdemeanor obtaining a controlled
substance by fraud. We remand for correction of the clerical error in the original
written order to reflect Defendant’s plea agreement. We vacate the modified order as
it concerns the error contained within the original written order.
I. Factual Background
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Opinion of the Court
On 9 July 2012, Defendant was indicted on one felony count of obtaining a
controlled substance by fraud. She failed to appear in court as scheduled on 10
September 2012 and was arrested approximately two years later.
On 11 August 2015, Defendant pled guilty pursuant to a plea agreement to one
count of misdemeanor obtaining a controlled substance by fraud and one count of
felonious failure to appear. The plea agreement provided:
The State agrees to a community punishment. The
defendant shall be placed on supervised probation, the
length of which will be determined by the Court. The
defendant shall submit to a period or periods of
confinement in the local confinement facility pursuant to
N.C.G.S. 15A-1343(a1)(3), with the scheduling of said
periods of confinement to be in the discretion of the
probation officer. All other terms and conditions of
probation shall be in the discretion of the Court.
(emphasis supplied).
At the beginning of the hearing, the trial court restated that “the plea
arrangement is that [Defendant] will plead to community punishment” and asked the
prosecutor to “educate [the court] a little bit” on the requirements under N.C. Gen.
Stat. § 15A-1343(a1)(3) and the role of the probation officer. At that point, the
prosecutor stated that the statute allows “a period or periods of confinement in a local
confinement facility for a total of no more than six days per month during any three
separate months during the period of probation” and that “the six days per month
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Opinion of the Court
confinement provided for in this subdivision may only be imposed as two- or three-
day consecutive periods.”
Later during the hearing, Defendant stipulated to the factual basis supporting
her plea agreement and to the contents of the sentencing worksheet. After the facts
supporting the plea agreement were summarized, the trial court again reiterated the
requirements of jail confinement under “community punishment” to ensure its
understanding. The trial court stated, “I know the Court can in a community or
intermediate punishment order jail confinement . . . to two or three days, no more
than six days per month for any three separate months.”
The trial court then asked the prosecutor “to educate [the court] again” and
requested clarification regarding the prosecution’s request for periods of confinement.
The prosecutor requested specific periods of confinement “to be imposed at the
discretion of the probation officer,” which was consistent with the plea agreement.
Defendant’s counsel further requested that the confinement be “no more than a
couple weekends in this particular situation.”
The trial court accepted Defendant’s plea agreement and sentenced Defendant
to “community punishment of between 6 and 17 months and the defendant will serve
ten days in the local jail at the discretion of the probation officer within the next 60
days.” (emphasis supplied). However, when the trial court’s AOC-CR-603C form
order was reduced to writing, Defendant’s ten-day sentence was included on page two
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Opinion of the Court
as “Special Probation – G.S. 15A-1351” under “Intermediate Punishments.” It was
not included under “Community and Intermediate Probation Conditions – G.S. 15A-
1343(a1).” This occurred despite the fact that at the top of page one of the form, the
court indicated that it was sentencing Defendant to “community” punishment. The
written order was filed 11 August 2015. Defendant filed her notice of appeal on 20
August 2015.
Pursuant to the original written order’s inclusion of “intermediate
punishment,” Judge Marvin P. Pope, Jr. signed a modified order requiring Defendant
serve her ten-day sentence from 1 September 2015 to 10 September 2015. Like the
original written order, the modified order indicated that it was modifying “Special
Probation – G.S. 15A-1344(e)” under the “Intermediate Punishments – Contempt”
section of the form.
Although the modified order was signed the same day as Defendant had filed
notice of her appeal, it was not filed until 28 August 2015. The record does not
indicate whether the courtroom clerk made any notation of the rendering of the trial
court’s modified order in the court minutes kept for 20 August 2015.
Along with her brief, Defendant contemporaneously filed a Motion for
Appropriate Relief and requested this Court to vacate the modified order based on
the trial court’s lack of subject matter jurisdiction to enter the modified order.
II. Issues
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Opinion of the Court
Defendant alleges the trial court erred in the original written order by
sentencing Defendant to intermediate punishment in contravention of the accepted
plea agreement. Defendant also argues the trial court lacked subject matter
jurisdiction to enter the modified order after her appeal had been entered. She has
filed a Motion for Appropriate Relief requesting that the modified order be vacated
on that ground.
III. Standard of Review
“In North Carolina, a defendant’s right to appeal in a criminal proceeding is
purely a creation of state statute.” State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d
867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). N.C. Gen. Stat. §
15A-1444 (2015) governs a defendant’s right to appeal from judgment entered upon a
guilty plea and limits it to specific circumstances. This includes when a sentence
“[c]ontains a type of sentence disposition that is not authorized by G.S. 15A-1340.17
or G.S. 15A-1340.23 for the defendant’s class of offense and prior record or conviction
level.” N.C. Gen. Stat. § 15A-1444(a2)(2) (2015).
Generally, “[w]hen a defendant assigns error to the sentence imposed by the
trial court our standard of review is whether [the] sentence is supported by evidence
introduced at the trial and sentencing hearing.” State v. Chivers, 180 N.C. App. 275,
278, 636 S.E.2d 590, 593 (2006) (internal quotation and citation omitted), disc. review
denied, 361 N.C. 222, 642 S.E.2d 709 (2007); see N.C. Gen. Stat. § 15A-1444(a1)(2015).
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Opinion of the Court
When this Court is confronted with statutory errors regarding sentencing issues,
such errors “are questions of law, and as such, are reviewed de novo.” State v. Mackey,
209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011) (citations omitted).
If the alleged sentencing error is only clerical in nature, “it is appropriate to
remand the case to the trial court for correction because of the importance that the
record speak the truth.” State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696-
97 (2008) (internal quotations and citation omitted). Rule 60 of the North Carolina
Rules of Civil Procedure provides:
Clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or
omission may be corrected by the judge at any time on his
own initiative or on the motion of any party and after such
notice, if any, as the judge orders. During the pendency of
an appeal, such mistakes may be so corrected before the
appeal is docketed in the appellate division, and thereafter
while the appeal is pending may be so corrected with leave
of the appellate division.
N.C. Gen. Stat. § 1A-1, Rule 60(a) (2015). A clerical error is defined as, “[a]n error
resulting from a minor mistake or inadvertence, esp[ecially] in writing or copying
something on the record, and not from judicial reasoning or determination.” State v.
Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quotation marks and
citation omitted).
IV. Original Written Order
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Opinion of the Court
“It is the responsibility of the trial judge to accept or reject a tendered plea
negotiated between the district attorney and defendant.” In re Fuller, 345 N.C. 157,
160, 478 S.E.2d 641, 643 (1996); see State v. Collins, 300 N.C. 142, 149, 265 S.E.2d
172, 176 (1980) (holding a plea agreement involving a recommended sentence must
be approved by the trial judge before it becomes effective). “Before accepting a plea
pursuant to a plea arrangement in which the prosecutor has agreed to recommend a
particular sentence, the judge must advise the parties whether he approves the
arrangement and will dispose of the case accordingly.” N.C. Gen. Stat. § 15A-1023(b)
(2015).
In 2011, the General Assembly created new “community punishment”
conditions a trial court may order during sentencing. See N.C. Gen. Stat. § 15A-
1343(a1) (2015). Community punishment is defined by statute as “[a] sentence in a
criminal case that does not include an active punishment or assignment to a drug
treatment court, or special probation as defined in G.S. 15A-1351(a). It may include
any one or more of the conditions set forth in G.S. 15A-1343(a1).” N.C. Gen. Stat. §
15A-1340.11(2). One such condition is:
Submission to a period or periods of confinement in a local
confinement facility for a total of no more than six days per
month during any three separate months during the period
of probation. The six days per month confinement provided
for in this subdivision may only be imposed as two-day or
three-day consecutive periods. When a defendant is on
probation for multiple judgments, confinement periods
imposed under this subdivision shall run concurrently and
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Opinion of the Court
may total no more than six days per month.
N.C. Gen. Stat. § 15A-1343(a1)(3) (2015).
Here, the trial court accepted Defendant’s plea agreement in which the parties
had agreed to “community punishment,” including a period or periods of confinement
pursuant to N.C. Gen. Stat. § 15A-1343(a1)(3). Based upon the agreement, the trial
court required Defendant to “serve ten days in the local jail at the discretion of the
probation officer within the next 60 days.” Although this ten-day sentence could have
been served pursuant to the requirements of “community punishment” under N.C.
Gen. Stat. 15A-1343(a1)(3), the order reducing the trial court’s statements to writing
incorrectly indicated that the sentence was “Special Probation – G.S. 15A-1351”
under “Intermediate Punishment.”
Defendant argues that the original written order’s classification of the ten-day
sentence was unlawful pursuant to N.C. Gen. Stat. § 15A-1444(a2)(2) and this Court
should vacate the judgment and remand for resentencing. The State contends the
order simply contained an inadvertent clerical error made when the judgment was
reduced to writing. The State asserts that the appropriate remedy is to remand for
correction of the clerical error with instruction that the trial court indicate the periods
of confinement under the appropriate section of the form.
The record before this Court shows the mistake in sentencing was purely a
clerical error on the original written order. First, the trial court and prosecutor
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Opinion of the Court
clearly stated at the beginning of the hearing that the plea agreement contained
“community punishment.” Second, the trial court indicated at the hearing that it was
sentencing Defendant to community punishment and correctly stated the
requirements for the periods of confinement as being “two or three days, no more than
six days per month for any three separate months.” Third, the top of the first page of
the original written order indicated that the trial court sentenced Defendant to
“community punishment,” not intermediate.
Finally, although the sentence was under “Intermediate Punishment” on page
two of the form, the ten days could have been served in compliance with the
requirements of N.C. Gen. Stat. § 15A-1343(a1)(3). For example, Defendant could
have served five days over two weekends each month during the 60 days following
the order.
Taken together, these facts demonstrate the entry of Defendant’s sentence
under “Intermediate Punishment” was a clerical error. We remand to the trial court
for correction of the clerical error regarding Defendant’s sentence pursuant to her
plea agreement. See Smith, 188 N.C. App. at 845, 656 S.E.2d at 696-97.
V. Modified Order
The modified order sentenced Defendant to ten consecutive days of
confinement under the “Intermediate Punishments – Contempt” portion of the form.
This sentence directly conflicts with the requirements found in N.C. Gen. Stat. § 15A-
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Opinion of the Court
1343(a1)(3), as agreed to by the parties in the plea agreement, and accepted by the
sentencing judge. The State, in its brief, admits that “the probation modification order
carried forward, and essentially repeated the clerical error reflected on the judgement
when it was reduced to writing.” Since the modified order was made pursuant to the
clerical error contained in the original written order and we remand the original
written order for correction of the error, the modified order imposing a sentence not
allowed under community punishment is vacated.
VI. Conclusion
The classification of Defendant’s ten-day sentence in the original written
order as “Intermediate Punishment” was an inadvertent clerical error made when
the order was reduced to writing. We remand for correction of the clerical error in
the original written order to be consistent with Defendant’s plea agreement with
community punishment. We vacate the modified order as it was made pursuant to
the clerical error contained within the original written order. Defendant’s motion
for appropriate relief is dismissed as moot.
REMANDED FOR CORRECTION OF CLERICAL ERROR IN PART;
VACATED IN PART.
Judges BRYANT and ZACHARY concur.
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