State v. Backus

• Court: Court of Appeals of North Carolina
• Decided: August 20, 2025
• Docket: 24-1129
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-1129

Filed 20 August 2025

Caswell County, Nos. 19CRS050508-160, 19CRS050157-160

STATE OF NORTH CAROLINA

v.

RONALD EARL BACKUS, JR.

Appeal by Defendant from Judgment entered 8 August 2023 by Judge David

L. Hall in Caswell County Superior Court. Heard in the Court of Appeals 22 April

2025.

Attorney General Jeff Jackson, by Assistant Attorney General Megan Shook, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily Holmes Davis, for Defendant-Appellant.

HAMPSON, Judge.

Factual and Procedural Background

Ronald Earl Backus, Jr., (Defendant) appeals from a Judgment entered 8

August 2023 upon his guilty plea to Possession of Methamphetamine, Possession of STATE V. BACKUS

Opinion of the Court

Drug Paraphernalia, and two counts of Negligent Child Abuse Inflicting Serious

Physical Injury. The Record before us tends to reflect the following:

On 6 September 2022, Defendant was indicted for Possession of

Methamphetamine and Possession of Drug Paraphernalia in 19 CRS 050157, and two

counts of Negligent Child Abuse Inflicting Serious Physical Injury in 19 CRS 050508.

On 8 August 2023, pursuant to a plea arrangement with the State, Defendant entered

a guilty plea to all charges. In exchange for Defendant’s plea, the State dismissed 21

other pending charges. The State agreed to consolidate the charges in 19 CRS 050157

with count one or count two of 19 CRS 050508, Defendant’s sentences should be split,

and Defendant should be placed on supervised probation.

Defendant stipulated to the State’s factual basis for the plea, which tended to

show that on 9 April 2019, North Carolina Department of Social Services (DSS) agent

Jasmine Henderson called in a welfare check at the home of Defendant, Melissa

Nixon, and their two young children. Henderson reported she could hear a child

crying from outside the house. She knocked on the door over the course of two hours

but received no answer. A police deputy and a second DSS agent responded to the

request for a welfare check; the deputy “tried knocking on the front door, back door,

and windows,” with no response.

Approximately twenty minutes after the deputy arrived, Nixon answered at

the back door. Nixon appeared to be “under the influence” and was slurring her

speech. She indicated “a friend” was supposed to be watching the children. Two other

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unrelated individuals were present in the home at the time; both individuals

indicated they did not know about the children and were not responsible for caring

for the children.

Defendant was eventually located. Defendant asked to get his shirt and shoes

from inside of the home. The deputy accompanied Defendant to get his clothing; upon

entering the home, the deputy observed what he believed to be marijuana, and the

home was “locked down” while the officer obtained a search warrant.

After obtaining a warrant, officers found methamphetamine and “smoking

devices” present in the home. The children were hospitalized and taken into DSS

custody. The children appeared “small in size and . . . weak”, were emaciated, and

had physical injuries. Nixon reported to DSS that she and Defendant used

methamphetamine while caring for the children, and she and Defendant would “take

turns” watching the children and using methamphetamine.

The trial court accepted Defendant’s plea and consolidated the charges into one

Judgment in accordance with the plea agreement. The trial court sentenced

Defendant to 17 to 30 months of imprisonment in count one of Negligent Child Abuse

Inflicting Serious Physical Injury and immediately suspended that sentence for 48

months of supervised probation. The trial court ordered Defendant to serve an active

term of 180 days in the custody of the Caswell County Sheriff as a special condition

of probation. Defendant was given credit for time already served: 137 days at the

time of sentencing.

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The trial court consolidated the drug charges in 19 CRS 050157 with count two

of Negligent Child Abuse Inflicting Serious Physical Injury. For count two, the trial

court sentenced Defendant to 17 to 30 months of imprisonment and stated the

sentence “shall begin at the expiration of the sentence imposed in Count One.” This

sentence was also suspended for 48 months of supervised probation, subject to the

same conditions of probation imposed in count one.

In addition to marking the box on the Judgment indicating Defendant’s active

sentence was to run at the expiration of the sentence in count one, the trial court

marked the box under “Suspension of Sentence” indicating the period of probation in

count two should begin “at the expiration of the sentence” in count one.

Defendant filed pro se written Notice of Appeal on 11 April 2024. The Appellate

Defender was subsequently appointed to represent Defendant in this appeal. Acting

consistently with the requirements set forth in Anders v. California, 386 U.S. 738, 87

S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665

(1985), Defendant’s appellate counsel advised Defendant of his right to file written

arguments with this Court and provided Defendant with the documents necessary

for him to do so. She then filed an Anders brief with this Court stating she was unable

to find any meritorious issues for appeal, had complied with the requirements of

Anders, and asked this Court to conduct an independent review of the Record to

determine if there were any identifiable meritorious issues therein. Defendant did

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not file any written arguments with this Court. Defendant, through his appellate

counsel, filed a Petition for Writ of Certiorari on 3 January 2025.

Appellate Jurisdiction

In his Petition for Writ of Certiorari, filed under Rule 21(a)(1) of the North

Carolina Rules of Appellate Procedure, Defendant acknowledges his pro se Notice of

Appeal was not timely filed, did not specify the court to which appeal was being taken,

and did not indicate service of the Notice upon the State.

The State, for its part, has filed a Motion to Dismiss Defendant’s appeal and

argues the writ should not issue because Defendant has not shown merit or that error

was probably committed in the proceedings below. See State v. Grundler, 251 N.C.

177, 189, 111 S.E.2d 1, 9 (1959), cert. denied, 362 U.S. 917, 8 S. Ct. 670, 4 L. Ed. 2d

738 (1960) (“A petition for the writ must show merit or that error was probably

committed below.” (citation omitted)). The State also correctly notes Defendant did

not file Notice of Appeal until 11 April 2024, over eight months after the trial court

had entered its Judgment.

Pursuant to Rule 21(a)(1) of our Appellate Rules, this Court possesses the

authority to grant a petition for writ of certiorari and review an order or judgment

entered by the trial court “when the right to prosecute an appeal has been lost by

failure to take timely action[.]” N.C.R. App. P. 21(a)(1) (2024). “This Court has

allowed for the issuance of a writ of certiorari despite technical defects in a notice of

appeal by a pro se defendant in a variety of circumstances, especially where the State

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has not been misled by the mistake.” State v. Salter, 264 N.C. App. 724, 729, 826

S.E.2d 803, 807 (2019) (citation omitted); see also State v. Springle, 244 N.C. App.

760, 763, 781 S.E.2d 518, 521 (2016) (“[A] defect in a notice of appeal should not result

in loss of the appeal as long as the intent to appeal can be fairly inferred from the

notice and the appellee is not misled by the mistake.” (citations, quotation marks,

and alteration omitted)).

Defendant’s intent to appeal is apparent from his Notice of Appeal and the

State has not alleged it was misled by the defects in Defendant’s Notice. We, in our

discretion, allow Defendant’s Petition for Writ of Certiorari and deny the State’s

Motion to Dismiss the appeal. See id.; see also State v. Robinson, 282 N.C. App. 403,

868 S.E.2d 924, 2022 WL 775145 (unpublished) (granting petition for writ of

certiorari where the defendant “failed to designate this Court as the court to which

appeal is taken[,]” “failed to serve his notice of appeal on the State[,]” and appellate

counsel had filed Anders brief).

Issues

The issues on appeal are whether: (I) the trial court erred in calculating

Defendant’s prior record level; and (II) the trial court erred or committed clerical

errors in imposing Defendant’s sentences.

Analysis

I. Prior Record Level

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“The prior record level of a felony offender is determined by calculating the

sum of the points assigned to each of the offender’s prior convictions that the court .

. . finds to have been proved[.]” N.C. Gen. Stat. § 15A-1340.14(a) (2023). A prior

conviction may be proved by stipulation of the parties. Id. § 15A-1340.14(f)(1)

(2023). Such stipulations do not bar a defendant’s challenge on appeal. See State v.

Gardner, 225 N.C. App. 161, 165-67, 736 S.E.2d 826, 829-30 (2013).

A prior record level of III requires at least six, but no more than nine, points.

N.C. Gen. Stat. § 15A-1340.14(c)(3) (2023). Class A and A1 misdemeanors carry one

point each. Id. § 15A-1340.14(b)(5) (2023). “[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” and carries two record points.

Id. § 15A-1340.14(e) (2023); id. § 15A-1340.14(b)(4) (2023).

Here, Defendant stipulated to having a prior record level of III based upon

seven record points—five points from misdemeanor convictions and two points from

felony convictions. The relevant convictions included five North Carolina class A or

A1 misdemeanor convictions and one Viriginia felony conviction for Possession of a

Schedule I or Schedule II Controlled Substance. Thus, Defendant’s stipulation to a

prior record level of III based on seven record points was proper. Therefore, the trial

court did not err in concluding Defendant has a prior record level of III.

II. Sentences

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In North Carolina, criminal sentencing is controlled by statute. See id. §

1340.17 (2023). Where the trial court does not find any aggravating or mitigating

factors, the minimum “authorized punishment” for a defendant with a prior record

level of III convicted of a Class G felony is 13 to 17 months of imprisonment. See id.

§ 15A-1340.17(c) (2023). The corresponding maximum authorized punishment is 25

to 30 months of imprisonment. See id. § 15A-1340.17(d) (2023).

Here, Defendant pleaded guilty to two counts of Negligent Child Abuse

Inflicting Serious Physical Injury, which is a Class G felony. See id. § 14-318.4(a5)

(2023) (“A parent or any other person providing care to or supervision of a child less

than 16 years of age whose willful act or grossly negligent omission in the care of the

child shows a reckless disregard for human life is guilty of a Class G felony if the act

or omission results in serious physical injury to the child.”). The trial court did not

find any aggravating or mitigating factors and sentenced Defendant to 17 to 30

months of imprisonment for each count. Thus, Defendant’s sentences fall within the

permissible sentencing range. See id. § 15A-1340.17 (2023). Therefore, the trial court

did not err in sentencing Defendant to 17 to 30 months of imprisonment for each

count of Negligent Child Abuse Inflicting Serious Physical Injury.

The trial court immediately suspended each sentence for 48 months of

supervised probation. The trial court made the appropriate Findings that a longer

period of supervised probation was necessary than the standard period of probation.

See id. § 15A-1343.2(d) (2023) (the length of probation for felons sentenced to

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intermediate punishment is 18 to 36 months unless the trial court makes specific

findings that a longer or shorter period of probation is necessary). As to count one,

the trial court further ordered Defendant to serve an active term of 180 days in the

custody of the Caswell County Sheriff as a special condition of probation. Defendant

was given credit for 137 days served at the time of sentencing. The trial court also

ordered the sentence in count two to run consecutively to the sentence in count one.

Defense counsel argues—and the State concedes—the Findings in the

Judgment indicate the probation period in count two begins at the expiration of the

probation period in count one. Both parties agree this is a clerical error. See State v.

Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18 (2003) (“ ‘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[.]’ ” (internal quotation marks and citations omitted)).

Section 15A-1346 of our General Statutes provides:

(a) Commencement of Probation. — Except as provided in subsection (b), a period of probation commences on the day it is imposed and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period.

(b) Consecutive and Concurrent Sentences. — If a period of probation is being imposed at the same time a period of imprisonment is being imposed or if it is being imposed on a person already subject to an undischarged term of imprisonment, the period of probation may run either concurrently or consecutively with the term of imprisonment, as determined by the court. If not specified, it runs concurrently.

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N.C. Gen. Stat. § 15A-1346 (2023). “A careful reading of the statute shows that any

sentence of probation must run concurrently with any other probation sentences

imposed on a defendant.” State v. Canady, 153 N.C. App. 455, 459-60, 570 S.E.2d

262, 265 (2002), abrogated by, State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010).

In Canady, the trial court sentenced the defendant to: (1) 16 to 20 months of

imprisonment; (2) 20 to 24 months of imprisonment, suspended for 60 months of

probation; and (3) 20 to 24 months of imprisonment, suspended for 60 months of

probation, “to run consecutively with the first period of probation.” Id. at 457, 570

S.E.2d at 264. We vacated and remanded the case for resentencing because “a trial

court is prohibited from imposing a sentence of two consecutive probation periods[.]”

Id. at 460, 570 S.E.2d at 266. However, in State v. Cousar, this Court clarified

Canady “dealt only with consecutive periods of probation, not consecutive sentences

that were suspended.” 190 N.C. App. 750, 757, 660 S.E.2d 902, 907 (2008), review

denied, 362 N.C. 684, 670 S.E.2d 568 (2008). There, the trial court had entered four

judgments: (1) 96 to 125 months of imprisonment for first-degree burglary; (2) 46 to

65 months of imprisonment for second-degree kidnapping, to begin at the expiration

of the burglary sentence; (3) 11 to 14 months of imprisonment for larceny, suspended

for 36 months of probation; and (4) 8 to 10 months of imprisonment for financial card

fraud and theft, also suspended for 36 months of probation—to run at the expiration

of the larceny sentence. Id. at 752-53, 660 S.E.2d at 904. The defendant, citing

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Canady, argued the trial court erroneously imposed two consecutive terms of

probation in the latter two judgments. Id. at 757, 660 S.E.2d at 906. This Court

disagreed, holding that in the absence of “any language that would suggest that the

defendant was to have two consecutive terms” of probation, “the provisions of N.C.

Gen. Stat. § 15A-1346 control and the period of probation ‘[i]f not specified, . . . runs

concurrently.’ ” Id. (quoting N.C. Gen. Stat. § 15A-1346 (2007)).

Here, as in Cousar, the trial court imposed consecutive sentences which were

suspended. In the absence of any language suggesting the trial court intended to

sentence Defendant to two consecutive terms of probation, the terms of probation in

these sentences run concurrently. See id.; N.C. Gen. Stat. § 15A-1346 (2023).

However, as defense counsel argues, the Findings in the Judgment erroneously

indicate the probation period in count two runs consecutive to the probation period

in count one; this is a clerical error that must be corrected. See State v. Lawing, 12

N.C. App. 21, 23, 182 S.E.2d 10, 11-12 (1971) (holding a clerical error exists when a

judgment does not reflect what was announced in open court).

“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.” State v. Smith, 188 N.C. App. 842,

845, 656 S.E.2d 695, 696 (2008) (citation and quotation marks omitted). The trial

court appropriately marked the box indicating the active sentence in count two should

run consecutively to the sentence in count one. However, the trial court should not

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have marked the box under “Suspension of Sentence” indicating the period of

probation in count two should run consecutive to the period of probation in count one.

We further note the Transcript of the Plea indicates Defendant pleaded guilty,

however the Judgment indicates Defendant pleaded guilty pursuant to North

Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). This is likewise

a clerical error which should be corrected on remand. Thus, we remand this case for

the sole purpose of correcting these clerical errors in the Judgment.

Conclusion

We have reviewed the Record pursuant to Anders and discern no other errors

on the face of the Record. Accordingly, for the foregoing reasons, we affirm the

Judgment of the trial court. We remand this matter to the trial court for the limited

purpose of correcting the clerical errors in the Judgment as set forth above.

AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERRORS.

Judges STROUD and TYSON concur.

Report per Rule 30(e).

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