State v. Fennell

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1056
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Pender County
No. 08 CRS 3155, 52362
DANIEL LEE FENNELL,
Defendant.
Appeal by defendant from judgment entered 30 April 2012 by
Judge Arnold O. Jones in Pender County Superior Court. Heard in
the Court of Appeals 21 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph L. Hyde, for the State
Kevin P. Bradley for defendant.
ELMORE, Judge.
Daniel Lee Fennell (defendant) appeals the portion of the
trial court’s judgment ordering him to pay $7,120.75 in court
costs and fees. After careful consideration, we remand for
further proceedings consistent with this opinion.
I. Background
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On 3 June 2011, defendant was convicted of (1) felony
possession of a controlled substance with intent to manufacture,
sell, and deliver; (2) sale of a schedule II controlled
substance; and (3) delivery of a schedule II controlled
substance. He pled guilty to the charge of having attained
habitual felon status. The trial court consolidated the charges
and sentenced defendant to a minimum of 150 months imprisonment
and a maximum of 189 months. The trial court also ordered
defendant to pay $720.00 in restitution as a condition of his
post-release supervision (original judgment). Defendant
appealed to this Court. We concluded that he received a fair
trial free of prejudicial error and affirmed the trial court’s
order of restitution. However, due to errors in calculating
defendant’s prior record level, we remanded for resentencing.
See State v. Fennell, 2012 N.C. App. LEXIS 302, 6-8 (2012).
On 30 March 2012, the trial court resentenced defendant as
a Class C, Level V, to a minimum term of 125 months and a
maximum term of 159 months imprisonment. Defendant was also
ordered to pay a total of $7,120.75 in costs and fees:
$4,454.50 in court costs, $2,606.25 in attorney’s fees, and
$60.00 for “miscellaneous” (second judgment). Defendant
appealed. We concluded that defendant’s fourteen prior record
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level points rendered him a Level IV offender, not a Level V,
for sentencing purposes and remanded for resentencing. State v.
Fennell, 2013 N.C. App. LEXIS 297, 3 (2013).
On 30 April 2013, Judge Arnold O. Jones (Judge Jones)
presided over defendant’s third sentencing proceeding.
Defendant was present in open court when Judge Jones sentenced
him within the presumptive range as a Class C, Level IV, to a
minimum term of 111 months and a maximum term of 143 months
imprisonment. In addition, Judge Jones pronounced that
defendant was to pay the monies imposed in the original
sentence, which was $720.00 in restitution.
That same day, a written judgment (third judgment) was
entered ordering defendant to pay costs and fees of $7,120.75—
the same monetary conditions imposed in the second judgment.
The third judgment did not impose the $720.00 in restitution.
We note that the third judgment states on its face, “ORIGINALLY
SENTENCED 06/03/2011, PRIOR RESENTENCING 03/30/12.” It is the
imposition of these costs and fees that is the subject of
defendant’s appeal.
II. Imposition of Costs and Fees
Defendant contends that the trial court erred in imposing
additional costs and fees outside of his physical presence in
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violation of his “right . . . to be present at the time sentence
is pronounced[.]” State v. Bonds, 43 N.C. App. 467, 474, 259
S.E.2d 377, 381 (1979) (citation omitted). We agree.
We review de novo the question of whether a sentence
imposed on the defendant outside of his presence was proper.
See State v. Crumbley, 135 N.C. App. 59, 66–67, 519 S.E.2d 94,
99 (1999) (conducting a de novo review of the question of
whether a sentence imposed on the defendant outside of his
presence was proper).
Here, defendant was sentenced according to the actual terms
of the third written judgment. See Abels v. Renfro Corp., 126
N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997) (“Announcement of
judgment in open court merely constitutes ‘rendering’ of
judgment, not entry of judgment.”) (citation omitted).
“Defendant had a right to be present at the time that sentence
was imposed.” State v. Arrington, 215 N.C. App. 161, 166, 714
S.E.2d 777, 781 (2011); see also State v. Pope, 257 N.C. 326,
330, 126 S.E.2d 126, 129 (1962) (“The right to be present at the
time sentence or judgment is pronounced is a common law right,
separate and apart from the constitutional or statutory right to
be present at the trial.”) (citation omitted).
A convicted defendant is entitled to notice
and an opportunity to be heard before a
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valid judgment for costs can be entered.
Costs are imposed only at sentencing, so any
convicted indigent defendant is given notice
. . . at the sentencing hearing and is also
given an opportunity to be heard and object
to the imposition of [the] cost[s].
State v. Webb, 358 N.C. 92, 101-02, 591 S.E.2d 505, 513 (2004)
(citation omitted).
Defendant does not contest that he was in open court when
the trial judge pronounced the third judgment. He contends,
however, that because Judge Jones rendered oral judgment
imposing the monies ordered in the original judgment, it was
error for the trial judge to deviate from that ruling and enter
the written judgment for $7,120.75.
The State disagrees based on this Court’s decision in
Arrington, supra. In Arrington, the trial judge pronounced, in
the presence of the defendant, a sentence of 30-days
imprisonment, suspended for 18 months of supervised probation.
Arrington, 215 N.C. App. at 162, 714 S.E.2d at 778. In
addition, the written judgment ordered defendant to pay $287.50
in court costs and a $225.00 community service fee, which the
trial judge did not pronounce in open court. Id. The trial
judge did not, in fact, render judgment on costs and fees at
sentencing. On appeal, the defendant argued that the imposition
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of the costs and fees outside of his presence infringed on his
right to be present at sentencing. We disagreed because (1) the
costs were statutorily mandated fees that were an integral part
of the sentence defendant heard imposed upon him in open court;
and (2) the imposition did not constitute additional punishment
and, therefore, was not a substantial change in his sentence.
Id. at 168, 714 S.E.2d at 782.
Here, Judge Jones rendered judgment in open court,
pronouncing: “Give [defendant] credit for any time served
against that sentence. And the original, if any, monies that
were ordered at the original sentencing, those same monetary
conditions, if any, shall apply in this sentence as well.”
Judge Jones then asked, “[a]nything else?” Defendant answered,
“[n]o, sir.”
Unlike Arrington, the trial judge in the instant case
pronounced his decision as to the monetary portion of the
judgment in defendant’s presence. By doing so, Judge Jones
placed defendant on notice of his intent to adopt the terms of
Judge Russell Lanier’s original judgment, which included a
waiver of costs and fees, except for the $720.00 restitution.
However, defendant did not have notice of the $7,120.75
judgment. Further, when Judge Jones asked, “anything else?” at
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the hearing, defendant was afforded the opportunity to be heard
and object to those matters for which he was on notice, namely
his active sentence and the imposition of restitution. Thus,
defendant was never afforded notice or the opportunity to be
heard and object to the terms of the written judgment.
Should Judge Jones simply have rendered judgment sentencing
defendant as a Level IV, to 111-143 months imprisonment—without
pronouncing his intent to reinstate the monetary terms of the
original order–our decision in Arrington would control. We
recognize that the imposition of costs and fees did not
constitute a substantial change in defendant’s sentence.
Nonetheless, under these particular facts, we conclude that
defendant was denied his right to be present when his sentence
was pronounced. Accordingly, we remand the third judgment to
Pender County Superior Court for a determination of what costs
and fees, if any, to impose after defendant is afforded notice
and an opportunity to be heard.
Remanded.
Judges McGEE and HUNTER, Robert C., concur.
Report per Rule 30(e).