State v. Rouse , 234 N.C. App. 92 ( 2014 )

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
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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.