State v. Robinson , 2016 N.C. App. LEXIS 969 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1358
Filed: 20 September 2016
Burke County, Nos. 12 CRS 050476, 001931
STATE OF NORTH CAROLINA
v.
ANTHONY MAURICE ROBINSON, Defendant.
On writ of certiorari to review judgments entered on or about 6 July 2015 by
Judge Jeffrey P. Hunt in Superior Court, Burke County. Heard in the Court of
Appeals 26 April 2016.
Attorney General Roy A. Cooper III, by Assistant Attorney General Joseph L.
Hyde, for the State.
Hollers & Atkinson, by Russell J. Hollers III, for defendant-appellant.
STROUD, Judge.
Defendant Anthony Maurice Robinson appeals from the judgments entered on
his plea of guilty to one count of attempted statutory rape consolidated with one count
of attempted statutory sex offense and one count of indecent liberties with a minor
child. Defendant contends that the trial court erred in sentencing him as a prior
record level IV offender and in finding that he had been convicted of an offense
against a minor as a basis for imposing its sex offender registry and satellite-based
monitoring orders. Defendant seeks the judgments against him to be vacated and
STATE V. ROBINSON
Opinion of the Court
remanded for new hearings. We affirm in part and remand in part to the trial court
for the correction of clerical errors.
I. Background
On 6 July 2015, defendant pled guilty pursuant to a plea agreement to one
count of attempted statutory rape consolidated with one count of attempted statutory
sex offense and one count of indecent liberties with a minor child. The State provided
a factual summary to the court noting that defendant, age 39 at the time, and Rachel,1
age 13 at the time, met through a mutual friend in December 2011. The two began a
sexual relationship, in which they engaged in multiple instances and various forms
of sexual contact over two months. This relationship continued until February 2012,
when Rachel’s mother discovered text messages between Rachel and defendant on
Rachel’s phone as well as a letter from Rachel to defendant expressing her love for
him and desire to bear his child.
Defendant stipulated to a prior record level worksheet presented by the State
which listed defendant’s prior convictions in North Carolina. The worksheet showed
a total of 11 points, including 9 points from North Carolina convictions and 2 points
for a Michigan conviction, so defendant was a prior record level IV offender for
sentencing purposes. During his plea colloquy, defendant again stipulated to the
calculation and his status as a prior record level IV offender.
1 A pseudonym is used to protect the identity of the minor child.
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Opinion of the Court
The trial court sentenced defendant in the presumptive range to consecutive
terms, a minimum of 190 and a maximum of 288 months imprisonment for the
consolidated attempted statutory rape and sex offense charges, followed by a
minimum of 20 months and a maximum of 33 months imprisonment for the charge
of indecent liberties with a minor child. Defendant was further ordered upon release
to register as a sex offender and to enroll in satellite based monitoring (“SBM”), both
for the remainder of his natural life.
On or about 13 July 2015, defendant filed a pro se written notice of appeal, but
defendant’s notice failed to designate the judgment or order from or the court to which
the appeal was taken, failed to provide certificate of service on the State, and was not
signed by defendant. On 27 January 2016, defendant filed a petition for writ of
certiorari seeking review of his prior record level calculation for sentencing purposes
and the judgment committing him to sex offender registry and SBM for the rest of his
natural life.
II. Right to Appeal
We must first determine whether defendant has a right to appeal his prior
record level calculation or the SBM order. “ ‘A defendant’s right to appeal in a
criminal proceeding is purely a creation of state statute. Furthermore, there is no
federal constitutional right obligating courts to hear appeals in criminal
proceedings.’ ” State v. Singleton, 201 N.C. App. 620, 623, 689 S.E.2d 562, 564
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Opinion of the Court
(2010)(quoting State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002))
(brackets omitted). N.C. Gen. Stat. § 15A-1444(a2)(1) (2015) provides, in pertinent
part:
(a2) A defendant who has entered a plea of guilty . . . to a
felony . . . 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 under G.S. 15A-
1340.14 or the defendant’s prior conviction
level under G.S. 15A-1340.21.
A plea of guilty to a felony does not extinguish a defendant’s right to appeal, but that
right “is not without limitations.” State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d
195, 196 (1998). “If a defendant who has pled guilty does not raise the specific issues
enumerated in subsection (a2) and does not otherwise have a right to appeal, his
appeal should be dismissed.” Id.
Here, defendant pled guilty to the charged offenses pursuant to a plea
arrangement. Yet defendant does not seek to appeal his guilty plea but rather he
seeks review of his prior record level calculation and sentencing based upon that
calculation. Defendant gave timely, though imperfect, written notice of appeal. He
then filed a petition for certiorari, which we address below. But defendant did have
a right to appeal his prior record level calculation pursuant to N.C. Gen. Stat. § 15A-
1444(a2)(1) despite his guilty plea since defendant contends that his prior record level
was calculated erroneously. See State v. Mungo, 213 N.C. App. 400, 403-04, 713
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Opinion of the Court
S.E.2d 542, 544-45 (2011) (holding the defendant had a right to appeal the calculation
of his prior record level pursuant to N.C. Gen. Stat. § 15A-1444(a2)(1)).
Regarding defendant’s right to appeal the trial court’s SBM order, this Court
has held that such “proceedings are not criminal actions, but are instead a civil
regulatory scheme.” State v. Brooks, 204 N.C. App. 193, 194, 693 S.E.2d 204, 206
(2010) (quotation marks and brackets omitted). “As the SBM order is a final
judgment from the superior court, we hold that this Court has jurisdiction to consider
appeals from SBM monitoring determinations under N.C. Gen. Stat. § 14-208.40B
pursuant to N.C. Gen. Stat. § 7A-27.” Singleton, 201 N.C. App. at 626, 689 S.E.2d at
566. Defendant seeks to appeal the trial court’s SBM order against him because he
contends that the order was based on an erroneous finding. Despite the fact that
defendant pled guilty, we recognize, as we did in Singleton, defendant’s right to
appeal the trial court’s SBM order pursuant to N.C. Gen. Stat. § 7A-27 (2015).
“[T]his Court has generally granted certiorari under N.C.R. App. P. 21(a)(1)
when a defendant has pled guilty but lost the right to appeal the calculation of [his]
prior record level through failure to give proper oral or written notice.” State v.
Gardner, 225 N.C. App. 161, 165, 736 S.E.2d 826, 829 (2013). Furthermore, this
Court has recognized the right of a defendant to appeal from an SBM order and
granted certiorari when a defendant failed to give proper notice of appeal pursuant
to Rule 3 of the North Carolina Rules of Appellate Procedure. Brooks, 204 N.C. App.
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Opinion of the Court
at 195, 693 S.E.2d at 206 (“N.C.R. App. P. 3(a) requires that a party file notice of
appeal with the clerk of superior court and serve copies thereof upon all other
parties.” (Quotation marks and brackets omitted)).
Defendant’s failure to file proper notice of appeal would necessitate the
dismissal of his appeal despite this Court’s recognition of defendant’s right to appeal
in this matter. Therefore, “[i]n the interest of justice, and to expedite the decision in
the public interest,” we grant defendant’s petition for writ of certiorari and address
the merits of both issues on appeal. Brooks, 204 N.C. App. at 195, 693 S.E.2d at 206.
II. Prior Record Level
Defendant first argues that the trial court erred by sentencing him as a prior
record level IV offender since the State failed to provide information to the trial court
as to whether defendant’s prior Michigan conviction for failure to register as a sex
offender was classified as a felony or a misdemeanor in Michigan or if it was
substantially similar to a North Carolina felony. Had the Michigan conviction not
been counted as a Class I felony, defendant would have been considered a prior record
level III offender with nine prior record level points for sentencing purposes.
Defendant claims the trial court erred and requests his case be remanded for
resentencing. We disagree.
We review the calculation of an offender’s prior record level
as a conclusion of law that is subject to de novo review on
appeal. It is not necessary that an objection be lodged at
the sentencing hearing in order for a claim that the record
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Opinion of the Court
evidence does not support the trial court’s determination of
a defendant’s prior record level to be preserved for
appellate review.
Mungo, 213 N.C. App. at 404, 713 S.E.2d at 545 (quotation marks and brackets
omitted).
When considering convictions from other jurisdictions for calculation of a
defendant’s prior record level, the trial court must consider them as follows:
Except as otherwise provided in this subsection, a
conviction occurring in a jurisdiction other than North
Carolina is classified as a Class I felony if the jurisdiction
in which the offense occurred classifies the offense as a
felony, or is classified as a Class 3 misdemeanor if the
jurisdiction in which the offense occurred classifies the
offense as a misdemeanor. If the offender proves by the
preponderance of the evidence that an offense classified as
a felony in the other jurisdiction is substantially similar to
an offense that is a misdemeanor in North Carolina, the
conviction is treated as that class of misdemeanor for
assigning prior record level points. If the State proves by
the preponderance of the evidence that an offense classified
as either a misdemeanor or a felony in the other
jurisdiction is substantially similar to an offense in North
Carolina that is classified as a Class I felony or higher, the
conviction is treated as that class of felony for assigning
prior record level points. If the State proves by the
preponderance of the evidence that an offense classified as
a misdemeanor in the other jurisdiction is substantially
similar to an offense classified as a Class A1 or Class 1
misdemeanor in North Carolina, the conviction is treated
as a Class A1 or Class 1 misdemeanor for assigning prior
record level points.
N.C. Gen. Stat. § 15A-1340.14(e) (2015).
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Opinion of the Court
Neither the State nor defendant proved or attempted to prove that the
Michigan conviction was substantially similar to a North Carolina felony or
misdemeanor, respectively, and neither brief attempts to argue that point. The State
did not seek to prove that the Michigan conviction was substantially similar to a
North Carolina felony of a higher class in defendant’s prior record level calculation.
Thus, the State chose to use the prior Michigan conviction at the default level as a
Class I felony for the purpose of calculating defendant’s prior record level. Therefore,
we only review whether the trial court erred in calculating defendant’s prior record
level in considering the Michigan conviction as a Class I felony.
Defendant’s argument arises entirely from the way that the Michigan crime is
listed on the worksheet. The worksheet includes a typed list of 15 North Carolina
convictions, with all but one identified in the last column of the list -- entitled “Class”
-- as either F, A1m, 2m, 3m, 1t, or 2t.2 These abbreviations indicate the class of the
offense, respectively: felony; misdemeanor class A1, 2, or 3; and misdemeanor class 1
or 2 under Chapter 20 (traffic offenses). N.C. Gen. Stat. § 15A-1340.21(b) (2015).
Only the Michigan conviction is handwritten on the form, described as follows:
Source Offenses File No. Date of County Class
code Conviction (name of State if
not NC)
Failure to Register -- Sex 6207711- 5-12-06 Oakland Co., I
Offender FH MI
2 Defendant’s record level was calculated on the standard form entitled “Worksheet Prior
Record Level for Felony Sentencing and Prior Conviction Level for Misdemeanor Sentencing,” Form
AOC-CR-600, Rev. 4/11.
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Opinion of the Court
The appropriate number of points are assigned to each offense as listed on the
worksheet, treating the Michigan offense at issue as a Class I felony.
Defendant argues that since the worksheet does not clearly show that his
Michigan conviction is classified as a felony in Michigan, “[t]his leaves us with a
stipulation to imprecise facts beyond the existence of the conviction and the name of
the offense, which does not explicitly state its category as felony or misdemeanor.”
The State did not present any evidence regarding the Michigan conviction or its
classification in Michigan. The State argues that the Michigan conviction was clearly
identified on the worksheet and was classified as “I,” which is the default
classification for an out-of-state felony conviction.
In addition, the State points out that a defendant can stipulate to whether an
out-of-state conviction is a felony or misdemeanor, although he cannot stipulate to
whether the conviction is “substantially similar” to a North Carolina felony classified
above Class I.
According to the statute, the default
classification for out-of-state felony
convictions is Class I. Where the State seeks
to assign an out-of-state conviction a more
serious classification than the default Class I
status, it is required to prove by the
preponderance of the evidence that the
conviction at issue is substantially similar to
a corresponding North Carolina felony. . . .
However, where the State classifies an out-of-
state conviction as a Class I felony, no such
demonstration is required. Unless the State
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Opinion of the Court
proves by a preponderance of the evidence
that the out-of-state felony convictions are
substantially similar to North Carolina
offenses that are classified as Class I felonies
or higher, the trial court must classify the out-
of-state convictions as Class I felonies for
sentencing purposes.
Thus, while the trial court may not accept a stipulation to
the effect that a particular out-of-state conviction is
substantially similar to a particular North Carolina felony
or misdemeanor, it may accept a stipulation that the
defendant in question has been convicted of a particular
out-of-state offense and that this offense is either a felony
or a misdemeanor under the law of that jurisdiction.
State v. Bohler, 198 N.C. App. 631, 637-38, 681 S.E.2d 801, 806 (2009) (citations,
quotation marks, and brackets omitted).
This Court has noted that “[w]hile we recognize that a prior record level
worksheet alone is insufficient to prove the existence of a prior conviction, . . . it is the
classification, rather than the mere existence, of the [out-of-state] conviction that is
at issue in the instance case.” State v. Threadgill, 227 N.C. App. 175, 179, 741 S.E.2d
677, 680 (2013), cert. denied, __ U.S. __, 187 L. Ed. 2d 821, 134 S. Ct. 961 (2014). In
Threadgill, this Court concluded that the defendant’s silence “regarding the
worksheet’s classification of the [out-of-state] conviction as a Class I felony
constituted a stipulation with respect to that classification.” Id. at 180, 741 S.E.2d
at 681. See also State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002)
(“Likewise, we hold that the statements made by the attorney representing defendant
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Opinion of the Court
in the present case may reasonably be construed as a stipulation by defendant that
he had been convicted of the charges listed on the worksheet. We also note that
defendant has not asserted in his appellate brief that any of the prior convictions
listed on the worksheet do not, in fact, exist.”).
Here, the plea colloquy shows that defendant similarly raised no questions or
objections regarding the information listed on the worksheet and that he stipulated
to the record level as calculated on it:
THE COURT: All right, then we have an agreement
of a prior record level of IV; is that right?
[DEFENSE COUNSEL]: Yes, Your Honor.
[THE STATE]: Yes, sir.
In State v. Edgar, __ N.C. App. __, 777 S.E.2d 766 (2015), we held that the trial
court may accept a stipulation that an out-of-state offense is classified as a
misdemeanor or a felony:
“[W]hile [the] trial court may not accept a stipulation to the
effect that a particular out-of-state conviction is
‘substantially similar’ to a particular North Carolina felony
or misdemeanor, it may accept a stipulation that the
defendant in question has been convicted of a particular
out-of-state offense and that this offense is either a felony
or a misdemeanor under the law of that jurisdiction.”
Id. at __, 777 S.E.2d at 769-70 (quoting Bohler, 198 N.C. App. at 637-38, 681 S.E.2d
at 806). A stipulation to a defendant’s prior out-of-state conviction being classified as
the default Class I felony, as opposed to a stipulation as to the similarity of his
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Opinion of the Court
Michigan offense to a North Carolina offense, does not implicate a question of law.
Id. at __, 777 S.E.2d at 769.
Although the worksheet did not specifically classify the Michigan conviction as
a “felony,” the classification of “I” clearly showed that defendant was stipulating that
the conviction was in fact a felony which would be classified at the default level.
Under these facts, defense counsel’s statements can “reasonably be construed as a
stipulation” to the prior convictions listed on his worksheet. Eubanks, 151 N.C. App.
at 506, 565 S.E.2d at 743. Because defendant stipulated to the Michigan conviction
and its classification as a Class I felony, both on the worksheet and during his plea,
the “stipulation as to his prior record level and his agreement to the sentence imposed
in his plea arrangement were effective and binding.” Edgar, __ N.C. App. at __, 777
S.E.2d at 770. This argument is without merit.
III. Sex Offender Registry and Satellite Based Monitoring
Defendant next argues that the trial court erred in finding that defendant had
been convicted of an offense against a minor and requests that this Court vacate and
remand the sex offender registry and SBM orders due to this erroneous finding.
In SBM cases, “ ‘we review the trial court’s findings of fact to determine
whether they are supported by competent record evidence, and we review the trial
court’s conclusions of law for legal accuracy and to ensure that those conclusions
reflect a correct application of law to the facts found.’ ” Singleton, 201 N.C. App. at
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Opinion of the Court
626, 689 S.E.2d at 566 (quoting State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d
430, 432 (2009) (brackets omitted)).
The issue before this Court concerns a clerical error that occurred when the
trial court filled out the form orders pertaining to both sex offender registry and SBM.
The State essentially conceded the existence of this error but argues that the error is
harmless since defendant would still be required to register as a sex offender and
enroll in SBM even without the erroneous findings.
This Court has previously recognized that
in the process of checking boxes on form orders, it is
possible for the wrong box to be marked inadvertently,
creating a clerical error which can be corrected upon
remand. When, on appeal, a clerical error is discovered in
the trial court’s judgment or order, it is appropriate to
remand the case to the trial court for correction because of
the importance that the record speak the truth. A clerical
error has been defined as an error resulting from a minor
mistake or inadvertence, especially in writing or copying
something on the record, and not from judicial reasoning or
determination.
State v. May, 207 N.C. App. 260, 262-63, 700 S.E.2d 42, 44 (2010) (citations, quotation
marks, and brackets omitted).
In May, the trial court mistakenly checked Box 1(a) instead of Box 1(b) under
the findings of fact section of the SBM order. Id. at 262, 700 S.E.2d at 44. Although
the trial judge noticed the mistake during the hearing and called attention to its need
for correction, the filed order in the record on appeal still contained the erroneously
checked Box 1(a) and unchecked Box 1(b). Id. We held that such error was “clerical
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Opinion of the Court
in nature[.]” Id. at 263, 700 S.E.2d at 44. Because the defendant admitted “that he
pled guilty to one count of taking indecent liberties with a child, which he concedes is
a ‘sexually violent offense,’ [this Court remanded] this matter to the trial court for
limited purpose of correcting the clerical error[.]” Id.
Here, the trial court’s findings for both the sex offender registry and SBM
orders included checked boxes for Box 1(b) -- that defendant had been convicted of “a
sexually violent offense under G.S. 14-208.6(5)”; Box 3 -- that defendant is a recidivist;
and Box 5 -- that the offenses “did involve the physical, mental, or sexual abuse of a
minor.” However, the form orders also included the checked box for Box 1(a), finding
that defendant had been convicted of “an offense against a minor under G.S. 14-
208.6(1m),” which only applies to kidnapping, abduction of children, and felonious
restraint.
Although the trial court did mistakenly find that defendant had been convicted
of an offense against a minor, such error merely amounts to a clerical error. Because
defendant admits that he pled guilty to attempted statutory rape and indecent
liberties with a minor child and does not contest that those offenses are not, in fact,
reportable sexually violent offenses, and because we find that the mistake in the trial
court’s order amounts only to clerical error, we, therefore, “remand this matter to the
trial court for the limited purpose of correcting the clerical error[s].” May, 207 N.C.
App. at 263, 700 S.E.2d at 44.
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Opinion of the Court
IV. Conclusion
For the foregoing reasons, we conclude that the trial court did not err in
calculating defendant’s prior record level. Furthermore, the trial court’s mistakes on
the judgment forms for the sex offender registry and SBM orders amount only to
clerical errors which may easily be corrected on remand.
AFFIRMED IN PART AND REMANDED IN PART.
Judges BRYANT and DIETZ concur.
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