State v. Sale ( 2014 )

NO. COA13-863
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Montgomery County
No. 11CRS051289
PAUL EDWARD SALE
Appeal by defendant from judgment entered 18 March 2013 by
Judge L. Todd Burke in Montgomery County Superior Court. Heard
in the Court of Appeals 10 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Christina S. Hayes, for the State.
Richard Croutharmel for defendant-appellant.
HUNTER, Robert C., Judge.
Paul Edward Sale (“defendant”) appeals from judgment
imposing 36 months of supervised probation after defendant
entered an Alford plea to one count of obstructing justice. On
appeal, defendant argues: (1) the trial court erred by failing
to make findings of fact as to why a probationary period longer
than 18 months was necessary; and (2) the trial court abused its
discretion by imposing a probation condition limiting
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defendant’s employment opportunities that was overly broad and
unduly burdensome.
After careful review, we remand for resentencing and
dismiss defendant’s argument regarding the special condition of
probation.
Background
In January 2012, defendant was charged with one count of
willful failure to discharge duties based on receiving a bribe
and one count of obstructing justice. In exchange for the
State’s dismissal of the failure to discharge duties offense,
defendant entered an Alford plea to one count of misdemeanor
obstructing justice. The prosecutor introduced the following as
the factual basis for the plea.
In September 2010, defendant was working as a police
officer in the town of Candor, North Carolina. During this
time, defendant conducted a traffic stop of Stephanie Gibson
(“Gibson”) resulting in criminal charges for possession of
cocaine. After that date, Gibson agreed to have intercourse
with defendant in exchange for his assurance that he would have
the charges dismissed. Defendant and Gibson consummated this
agreement on 6 December 2010. Thereafter, defendant failed to
appear for any of Gibson’s court dates, but the charge against
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her was continued rather than dismissed. Gibson then contacted
the State Bureau of Investigation, which launched an
investigation and brought the underlying charges against
defendant. Defendant was employed as a correctional officer at
the Morrison Correctional Facility in Richmond County by the
time this matter came before the trial court.
Based on defendant’s Alford plea to one count of
obstructing justice, the trial court sentenced defendant to
thirty days imprisonment, but suspended this sentence for 36
months of supervised probation. The trial court further ordered
that defendant: (1) pay court costs; (2) pay a fine of
$1,000.00; (3) comply with the regular terms and conditions of
probation; and (4) refrain from working in any law enforcement
capacity during the probationary period. Defendant filed timely
notice of appeal.
Discussion
I. Findings as to Length of Probation
Defendant’s first argument is that the trial court erred by
failing to enter specific findings as to why a probationary
period longer than that mandated by statute for his misdemeanor
offense was necessary. The State concedes that the trial court
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erred and agrees with defendant that the case should be
remanded. Accordingly, we remand for resentencing.
N.C. Gen. Stat. § 15A-1343.2(d)(1) (2013) provides that a
defendant who is sentenced to community punishment for a
misdemeanor shall be placed on probation for no less than 6
months and no more than 18 months, unless the trial court enters
specific findings that longer or shorter periods of probation
are necessary. This Court has remanded for resentencing where
the trial court violated section 15A–1343.2(d)(1) by entering a
period of probation longer than 18 months without making the
necessary findings that the extension was necessary. See State
v. Love, 156 N.C. App. 309, 317–18, 576 S.E.2d 709, 714 (2003)
(remanding for either reduction of the defendant’s probation to
the statutory length or entry of specific findings as to why a
longer period of probation was necessary); see also State v.
Branch, 194 N.C. App. 173, 179, 669 S.E.2d 18, 22 (2008). Thus,
pursuant to Love and Branch, we remand for entry of specific
findings by the trial court indicating why a longer probationary
period is necessary or reduction of defendant’s probation to a
length of time authorized by section 15A-1343.2(d)(1).
II. Special Condition of Probation
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Defendant next argues that the trial court abused its
discretion by entering a special condition of probation that
defendant may not be “employed in any type of law enforcement”
while on probation. After careful review, we dismiss this
argument because we are without authority to review it.
“The jurisdiction of the Court of Appeals is limited to
that which ‘the General Assembly may prescribe.’” State v.
Jones, 161 N.C. App. 60, 61, 588 S.E.2d 5, 7 (2003) (quoting
N.C. Const. art. IV, § 12(2)), rev’d on other grounds, 358 N.C.
473, 598 S.E.2d 125 (2004). “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 (2002). “Furthermore, there is no federal
constitutional right obligating courts to hear appeals in
criminal proceedings.” Id. (citing Abney v. United States, 431
U.S. 651, 656, 52 L. Ed. 2d 651, 657 (1977)).
Defendant purports to have a right to appeal the trial
court’s imposition of a special condition of probation pursuant
to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a2) (2013).
However, neither statute confers a right to appeal here.
First, section 7A-27(b) explicitly excludes from its right
of appeal those cases where a final judgment is entered based on
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a guilty plea. See N.C. Gen. Stat. § 7A-27(b)(1) (2013); State
v. Mungo, 213 N.C. App. 400, 401, 713 S.E.2d 542, 543 (2013)
(“N.C. Gen. Stat. § 7A–27(b) does not provide a route for
appeals from guilty pleas.”) Because defendant entered an
Alford plea, and “[a]n Alford plea is to be treated as a guilty
plea and a sentence may be imposed accordingly,” State v.
Alston, 139 N.C. App. 787, 792, 534 S.E.2d 666, 669 (2000)
(citation and quotation marks omitted), he does not have a right
of appeal pursuant to section 7A-27.
Second, defendant’s reliance on section 15A-1444(a2) is
misplaced. This statute provides that:
(a2) 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
under G.S. 15A-1340.14 or the
defendant’s prior conviction level
under G.S. 15A-1340.21;
(2) Contains 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;
or
(3) Contains a term of imprisonment
that is for a duration not authorized
by G.S. 15A-1340.17 or G.S. 15A-1340.23
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for the defendant’s class of offense
and prior record or conviction level.
N.C. Gen. Stat. § 15A-1444(a2) (2013). Defendant’s challenge to
the trial court’s imposition of a special condition of probation
does not fall under the provisions of this subsection. Rather
than contesting the judgment on any ground enunciated in section
15A-1444(a2), defendant asserts that the trial court abused its
discretion by entering a special condition of probation which
unduly burdens his livelihood. Because this challenge to the
court’s judgment is not enunciated in section 15A-1444(a2), this
statute does not confer a right to appeal.
Furthermore, we have no authority to issue a writ of
certiorari to reach these issues in lieu of a statutory right to
appeal. Although section 15A-1444(e) states that a defendant
who pleads guilty to a criminal charge “may petition the
appellate division for review by writ of certiorari” where he
otherwise does not have a statutory right of appeal, this Court
is restricted in its authority to issue a writ of certiorari by
Rule 21 of the North Carolina Rules of Appellate Procedure.
Under Rule 21(a)(1),
The writ of certiorari may be issued in
appropriate circumstances by either
appellate court to permit review of the
judgments and orders of trial tribunals when
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the right to prosecute an appeal has been
lost by failure to take timely action, or
when no right of appeal from an
interlocutory order exists, or for review
pursuant to N.C.G.S. § 15A-1422(c)(3) of an
order of the trial court denying a motion
for appropriate relief.
N.C. R. App. P. 21(a)(1) (2013). The relationship between
section 15A-1444(e) and Rule 21 was specifically addressed by
this Court in Jones.
Where a defendant has no appeal of right,
our statute provides for defendant to seek
appellate review by a petition for writ of
certiorari. N.C. Gen. Stat. § 15A–1444(e).
However, our appellate rules limit our
ability to grant petitions for writ of
certiorari to cases where: (1) defendant
lost his right to appeal by failing to take
timely action; (2) the appeal is
interlocutory; or (3) the trial court denied
defendant’s motion for appropriate relief.
N.C. R. App. P. 21(a)(1) (2003). In
considering appellate Rule 21 and N.C. Gen.
Stat. § 15A–1444, this Court reasoned that
since the appellate rules prevail over
conflicting statutes, we are without
authority to issue a writ of certiorari
except as provided in Rule 21.
Jones, 161 N.C. App. at 63, 588 S.E.2d at 8 (citing State v.
Nance, 155 N.C. App. 773, 775, 574 S.E.2d 692, 693-94 (2003);
State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002)).
Here, none of the provisions of Rule 21(a)(1) have been
triggered to confer authority on this Court to issue a writ of
certiorari. First, defendant did not lose a right of appeal by
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failing to take timely action because: (1) as discussed above,
he has no right to appeal the special condition of probation,
and (2) he otherwise filed and perfected his appeal of the
statutory violation addressed in issue I above in a timely
manner. Second, this appeal is from a final judgment made by
the trial court and is therefore not interlocutory. Third, the
appeal does not stem from a denial of a motion for appropriate
relief.
Therefore, we are without authority to review, either by
right or by certiorari, the trial court’s imposition of a
special condition of probation.1
Conclusion
Because the trial court violated section 15A-1343.2(d)(1)
by failing to enter specific findings of fact as to why a longer
probationary period than that prescribed by statute was
necessary, we remand for resentencing. Defendant’s argument as
to the imposition of a special condition of probation is
dismissed.
1
We note that defendant filed this appeal before exhausting all
of his potential remedies at the trial level. Had he filed a
motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A-
1415 (2013), the trial court may have altered the challenged
condition of probation.
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REMANDED; DISMISSED IN PART.
Judges MCGEE and ELMORE concur.