NO. COA14-426
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014 STATE OF NORTH CAROLINA
v. Wake County No. 11 CRS 219920 THOMAS EVERETTE, JR., Defendant
Appeal by Defendant from judgment entered 19 October 2013
by Judge Orlando F. Hudson in Wake County Superior Court. Heard
in the Court of Appeals 8 September 2014.
Roy Cooper, Attorney General, by Harriet F. Worley, Special Deputy Attorney General, for the State.
Staples Hughes, Appellate Defender, by Jillian C. Katz, Assistant Appellate Defender, for defendant-appellant.
BELL, Judge.
Thomas Everette, Jr. (“Defendant”) appeals from his
conviction for obtaining property by false pretenses. On
appeal, Defendant contends that the trial court erred by (1)
denying his motion to dismiss because there was a fatal variance
between the false pretense alleged in the indictment and the
State’s evidence at trial; (2) denying his motion to dismiss
because there was no causal relationship between the false -2- representation alleged and the value obtained; and (3)
miscalculating Defendant’s prior record points. After careful
review, we conclude that Defendant received a fair trial free
from prejudicial error, but remand for correction of a clerical
error on Defendant’s prior record level worksheet.
Factual Background
The State presented evidence tending to show the following
facts: In 2010, a home located at 2401 Victoria Park Lane in
Raleigh, North Carolina was vacant after a foreclosure. Veneta
Ford (“Ms. Ford”), a realtor in Raleigh, was contacted by Bank
of America, the new owner of the property, to prepare the home
for re-sale. Ms. Ford put the utilities in her name and had the
house re-keyed. She placed the house on the market on 12 July
2010.
Ms. Ford visited the house several times to clean and
perform maintenance on the property. On one visit, she
discovered that the for-sale sign she had placed on the property
had been removed. Additionally, the house had been re-keyed so
that her key did not work. On another occasion, Ms. Ford went
to the property and discovered that the lockbox attached to the
front door containing the keys to the house had been cut off.
In January 2011, Ms. Ford noticed a professional-looking sign
warning against trespassing on the property. Neighbors informed -3- Ms. Ford that someone had moved into the home. She also
discovered that someone had taken the utilities out of her name
and put them in his own name. Ms. Ford contacted the Raleigh
Police Department about this incident.
On 23 August 2011, Raleigh Police Department Sergeant
Timothy Halterman (“Sergeant Halterman”) responded to a call for
service at 2401 Victoria Park Lane after receiving a complaint
from Ms. Ford that an unauthorized person was living on the
property. Sergeant Halterman asked Defendant for documentation
showing he was authorized to live in the home. Defendant
retrieved a lease agreement from his safety deposit box and
presented it to Sergeant Halterman. He informed Sergeant
Halterman that the lease was from a company in Greenville, North
Carolina and that he had been living in the house for months.
After this encounter, Sergeant Halterman contacted his superior
officer at the time, who advised him to contact Detective Terry
Embler (“Detective Embler”), a Raleigh Police Department
financial crimes investigator, to request that he further
investigate the true ownership of 2401 Victoria Park Lane.
Ms. Ford eventually spoke with Defendant after leaving her
card on the door of the house with a note requesting that
someone call her. Defendant contacted her to tell her that he
had bought the property and had a deed. Ms. Ford checked the -4- Wake County public records and found that a general warranty
deed had been recorded transferring title to the property from
International Fidelity Trust (“IFT”) to itself, with Defendant
listed as the trustee.
During this time, Detective Embler was investigating
whether Defendant was validly living at the Victoria Park Lane
property. He discovered that on 13 July 2011, a special
warranty deed had been recorded at the Wake County Register of
Deeds Office transferring title to the property at 2401 Victoria
Park Lane from Bank of New York Mellon to IFT. This deed was
signed by Keith Chapman as attorney-in-fact for the bank and had
been notarized by Carolyn Evans (“Ms. Evans”).
Detective Embler testified that he was not able to find any
information about IFT on the North Carolina Secretary of State’s
website, at the South Carolina Secretary of State’s office, or
through an Internet search. He discovered that the address
given for the business corresponded to a P.O. Box at a UPS store
in Greenville, North Carolina. Detective Embler learned that
P.O. Box 250, the address listed as IFT’s address on the general
warranty deed, actually belonged to Defendant, and that
Defendant had recorded a vast number of deeds and other
paperwork with the Edgecombe County Register of Deeds Office
using P.O. Box 250 as his address. In particular, Detective -5- Embler testified that Defendant had recorded a special warranty
deed with the Edgecombe County Register of Deeds Office that
looked remarkably similar to the special warranty deed for the
property at 2401 Victoria Park Lane that had been recorded in
Wake County.
After collecting this information, Detective Embler
contacted Secret Service Agent Michael Southern (“Special Agent
Southern”) to assist in the investigation. On 24 August 2011,
Detective Embler and Special Agent Southern went to the Victoria
Park Lane property with an arrest warrant for Defendant.
Defendant was arrested and charged with breaking and entering
and obtaining property by false pretenses. The next day
Defendant was also charged with forgery of deeds.
On 28 November 2011 a grand jury indicted Defendant for
breaking and entering, obtaining property by false pretenses,
and forgery of a deed. A jury trial commenced on 14 October
2013 in Wake County Superior Court.
At trial, Defendant testified on his own behalf and
presented the following account of the events leading up to his
arrest: Defendant was facing potential foreclosure on his house
which was under construction in Edgecombe County. In an effort
to prevent his house from being foreclosed on, Defendant
contacted a company he found on Craigslist called International -6- Fidelity Trust and spoke with someone named John Kenny about
using IFT’s services to improve his credit score.
Defendant also testified that IFT told him that it owned
several properties in Wake County at which he could live in
exchange for performing work on the property. According to
Defendant, he chose to live at 2401 Victoria Park Lane, a
property purportedly owned by IFT. In December 2010, at IFT’s
direction, Defendant recorded several documents, including a
common law lien and a general warranty deed, related to the
Victoria Park Lane property as “trustee” for IFT. However,
Defendant testified that he did not remember recording the
general warranty deed specifically, because it was allegedly
part of a package that contained the common law lien and other
documents.
According to Defendant, on 15 December 2010, IFT had the
property rekeyed and he began performing maintenance on the
property. In May 2011, Defendant entered into a lease agreement
with IFT for the Victoria Park Lane property set to begin on 31
May 2011. Defendant and his family moved into the house on 10
June 2011. Around that time, he also applied for utility
services in his name at 2401 Victoria Park Lane. Defendant
testified that he was paying taxes on the property by making
payments to IFT in monthly installments. -7- At trial, the State introduced a copy of the special
warranty deed recorded with the Wake County Register of Deeds
Office. Detective Embler testified that he discovered another
deed similar to this special warranty deed through which
Defendant and his wife had received title to a home in Edgecombe
County in 2006. Both deeds contained the same formatting, were
signed by the same individual as attorney-in-fact for the lender
that had foreclosed on each of the properties despite the fact
that the lenders transferring title on the two deeds were
different, and the same out-of-state law firm was purported to
have prepared both deeds. Defendant denied having recorded the
special warranty deed with the Wake County Register of Deeds
Office.
Ms. Evans, the notary public who had purportedly notarized
the special warranty deed for 2401 Victoria Park Lane, testified
at trial that she was a licensed notary in South Carolina, not
North Carolina. She testified that she did not notarize the
special warranty deed and that the signature on the document was
not hers. She further stated that the notary stamp on the
special warranty deed was the stamp she used when she worked at
Wells Fargo, but that she was not working for Wells Fargo or any
other lender at the time this deed was notarized. She also
observed that the special warranty deed was not properly -8- notarized because the signature was not hand-dated, and a notary
is required to hand-date her signature.
Dawn Hurley (“Ms. Hurley”), a Bank of America banking
officer, testified that Bank of America acquired the home at
2401 Victoria Park Lane in February 2010 through a foreclosure
sale. Ms. Hurley also testified that the title to the property
was legally in the name of Bank of America, not Bank of New York
Mellon, as indicated on the special warranty deed.
Veronica Gearon (“Ms. Gearon”), Wake County Register of
Deeds recording supervisor, testified that by virtue of the
recording of the special warranty deed, ownership of the
property was transferred from Bank of New York Mellon to IFT.
Ms. Gearon stated that she was unsure whether the recording of
the earlier warranty deed in December 2010 that Defendant
admitted he had prepared and signed as trustee for IFT would
have transferred ownership of the property because the grantor
and grantee were listed as the same entity — IFT — on that deed.
On 19 October 2013, the jury returned a verdict finding
Defendant guilty of obtaining property by false pretenses, but
deadlocked with respect to the breaking and entering and forgery
of deeds charges. As a result, the trial court declared a
mistrial with respect to these two charges. That same day, the -9- trial court sentenced Defendant to a term of 110 to 141 months
imprisonment. Defendant gave notice of appeal in open court.
Analysis
I. Fatal Variance
Defendant first argues that the trial court erred by
denying his motion to dismiss the charge of obtaining property
by false pretenses because there was a fatal variance between
the indictment and the State’s evidence. Specifically,
Defendant contends that the indictment alleged that he had
“filed a forged and false Special Warranty Deed,” but that the
State did not present sufficient evidence at trial to establish
that he forged or was involved in forging the special warranty
deed. We find Defendant’s contentions to be without merit.
To preserve a fatal variance argument for appellate review,
a defendant must state at trial that an allegedly fatal variance
is the basis for his motion to dismiss. State v. Curry, 203
N.C. App. 375, 384, 692 S.E.2d 129, 137, appeal dismissed and
disc. review denied, 364 N.C. 437, 702 S.E.2d 496 (2010). At
trial, Defendant based his motion to dismiss solely on the
grounds of insufficient evidence. Therefore, Defendant did not
properly preserve for appellate review his argument that there
was a fatal variance between the indictment and the evidence
presented for appellate review. See State v. Pickens, 346 N.C. -10- 628, 645, 488 S.E.2d 162, 172 (1997) (“Regarding the alleged
variance between the indictment and the evidence at trial,
defendant based his motions at trial solely on the ground of
insufficient evidence and thus has failed to preserve this
argument for appellate review.”) (citation omitted). However,
Defendant asks this Court to review his argument in our
discretion pursuant to Rule 2 of the Rules of Appellate
Procedure. See N.C.R. App. P. 2. We elect to do so and conclude
that Defendant has not shown a variance between the indictment
and the evidence presented.
“In order for a variance to warrant reversal, the variance
must be material. A variance is not material, and is therefore
not fatal, if it does not involve an essential element of the
crime charged.” State v. Norman, 149 N.C. App. 588, 594, 562
S.E.2d 453, 457 (2002) (citations omitted). The elements of
obtaining property by false pretenses are
(1) [a] false representation of a past or subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which the defendant obtains or attempts to obtain anything of value from another person.
State v. Saunders, 126 N.C. App. 524, 528, 485 S.E.2d 853, 856
(1997) (citation omitted); see N.C. Gen. Stat. § 14-
100(a)(2013). -11- Here, Defendant contends that the State’s evidence at trial
was insufficient to establish that he forged the special
warranty deed or took part in preparing this document. However,
the indictment states, in pertinent part, as follows:
2. And the jurors for the State upon their oath present that on or about July 13, 2011, in Wake County, the Defendant named above unlawfully, willfully, and feloniously did knowingly and designedly with the intent to cheat and defraud obtain and attempt to obtain the house and real property located at 2401 Victoria Park Lane, Raleigh, North Carolina from Bank of New York Mellon Corporation . . . by means of a false pretense which was calculated to deceive and did deceive.
The false pretense consisted of the following: the Defendant presented and filed a forged and false Special Warranty Deed in the Wake County Register of Deeds office purporting to transfer ownership of this foreclosed property from the mortgage holding bank to an apparent false trust in which the Defendant is the trustee.
(Emphasis added).
The indictment does not allege that the false pretense at
issue is that Defendant forged the special warranty deed, nor is
forgery an essential element of the offense of obtaining
property by false pretenses. Defendant has shown no fatal
variance between the indictment and the evidence presented. At
trial, the State presented ample evidence that Defendant
presented and recorded a forged deed — the precise -12- representation that was charged. As such, Defendant’s argument
on this issue is without merit.
II. Causal Relationship Between False Representation Alleged and the Value Obtained
Defendant next contends that the trial court erred by
denying his motion to dismiss the charge of obtaining property
by false pretenses for insufficient evidence because the State
failed to show that the alleged false pretense — the forgery of
the special warranty deed — caused Defendant to obtain the house
at 2401 Victoria Park Lane.
Defendant acknowledges that his trial counsel failed to
specifically preserve this argument at trial. However,
Defendant again asks this Court to invoke Rule 2 to reach the
merits of his argument. Under Rule 2, this Court may suspend
the rules of appellate procedure in order “[t]o prevent manifest
injustice to a party, or to expedite decision in the public
interest.” N.C.R. App. P. 2 (2013).
“Rule 2 relates to the residual power of our appellate
courts to consider, in exceptional circumstances, significant
issues of importance in the public interest or to prevent
injustice which appears manifest to the Court and only in such
instances.” State v. Hart, 361 N.C. 309, 315-16, 644 S.E.2d
201, 205 (2007) (citations and quotation marks omitted). “[T]he
exercise of Rule 2 was intended to be limited to occasions in -13- which a fundamental purpose of the appellate rules is at stake,
which will necessarily be rare occasions.” Id. at 316, 644
S.E.2d at 205 (citations and internal quotation marks omitted).
Nothing in the record or briefs demonstrates “exceptional
circumstances” sufficient to justify suspending or varying the
rules in order to prevent “manifest injustice” to Defendant.
Id. at 315, 644 S.E.2d at 205. The State presented evidence at
trial that the special warranty deed was a forgery and that
Defendant was the one who filed the forged deed. The natural
consequence of filing the forged deed was that Defendant secured
possession of the house, thereby implying causation. State v.
Dale, 218 N.C. 625, 641, 12 S.E.2d 556, 565 (1945) (“The facts
alleged in the indictment here, relating to the
misrepresentation . . . are such as to imply causation, since
they are obviously calculated to produce the result.”). In the
exercise of our discretionary authority, we decline to invoke
Rule 2. Therefore, this argument is dismissed.
III. Miscalculation of Defendant’s Prior Record Level Points
Defendant’s final argument on appeal is that the trial
court incorrectly calculated his prior record level points.
Defendant acknowledges that a recalculation of his prior record
points will not alter his sentence, but asks that a new prior
record level worksheet be completed to accurately reflect his -14- record. We agree.
Defendant contends that he should only have 10 prior record
level points, rather than 11, because two of the misdemeanors
listed on the worksheet and used in calculating Defendant’s
prior record level had the same date of conviction. As such,
only one may be counted for purposes of determining prior record
points. N.C. Gen. Stat. §15A-1340.14(d) (2013).
Because the sentence imposed will not be affected by a
recalculation of Defendant’s prior record points, it is not
necessary that there be a new sentencing hearing. Rather, we
treat this as a clerical error and remand this matter to the
trial court for its correction. State v. Dobbs, 208 N.C. App.
272, 274, 702 S.E.2d 349, 350-51 (2010) (finding judgment
erroneously designating defendant’s offense as Class G felony
rather than Class H felony to be clerical error and remanding to
trial court for correction where sentence unaffected by error).
The dissent relies on State v. Jarman for the proposition
that while a trial court may “amend its records to correct
clerical mistakes or supply defects or omissions therein”, it
lacks the authority, “under the guise of an amendment of its
records, to correct a judicial error.” 140 N.C. App. 198, 202,
535 S.E.2d 875, 878 (2000) (quoting State v. Davis, 123 N.C.
App. 240, 242-43, 472 S.E.2d 392, 393 (1996). We note, however, -15- that Jarman and Davis can be distinguished from the present
case. In both Jarman and Davis, the distinction between
clerical and judicial errors was of importance because it was
the trial court that, upon its own initiative (through a hearing
or motion), sought to correct an error.
In Davis, we held that the trial court “impermissibly
corrected a judicial error,” and thus “was without jurisdiction
to amend the judgments in the course of settling the record on
appeal” where the trial court entered an amended judgment after
conducting a hearing to settle the record on appeal. 123 N.C.
App. 240 at 242-43, 472 S.E.2d 392 at 393-94. On the other
hand, in Jarman, we held that the trial court’s correction of an
order resulting from inaccurate information inadvertently
provided by the deputy clerk was a clerical error, and therefore
proper, because “the trial judge did not exercise any judicial
discretion or undertake any judicial reasoning” when signing an
order providing credit against service of sentence that the
deputy clerk prepared. 140 N.C. App. at 203, 535 S.E.2d at 879.
In the case at bar, the trial court’s error was brought to
this Court by Defendant on appeal. “Where there has been
uncertainty in whether an error was ‘clerical,’ the appellate
courts have opted to err on the side of caution and resolve the
discrepancy in the defendant’s favor.” Jarman at 203, 535 -16- S.E.2d at 879 (citation and internal quotation marks omitted).
In Jarman, we stated that “the judge’s action in signing the
order giving defendant credit to which he believed she was
legally entitled was a mechanical and routine, though mistaken,
application of a statutory mandate.” Id. Here, the assistant
district attorney prepared Defendant’s prior record level
worksheet for the trial judge’s signature by filling in the
blanks on a standard AOC form and presenting it to the trial
judge. As in Jarman, the record in the case sub judice
“demonstrates that the trial judge did not exercise any judicial
discretion or undertake any judicial reasoning when signing” the
prior record level worksheet. Id.
Further, because the trial court did not attempt to
correct its own error while the case was on appeal, whether the
trial court would have had jurisdiction to amend Defendant’s
prior record level points is inapposite. Therefore, we find it
proper to treat Defendant’s miscalculation of prior record level
points as a clerical error and remand to the trial court for
correction. State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d
695, 696 (2008) (“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.”) -17- (citation and internal quotation marks omitted).
Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial free from error, but remand for correction
of the clerical error found in his prior record level worksheet.
NO ERROR; REMANDED FOR CORRECTION OF CLERICAL ERROR.
Judge McCULLOUGH concurs.
Judge ERVIN concurs in part and dissents in part. NO. COA14-426 NORTH CAROLINA COURT OF APPEALS Filed: 21 October 2014 STATE OF NORTH CAROLINA
Wake County v. No. 11 CRS 219920
THOMAS EVERETTE, JR.
ERVIN, Judge, concurring in part and dissenting in part.
Although I concur in my colleagues’ conclusion that
Defendant received a fair trial that was free from prejudicial
error and that his convictions should remain undisturbed, I am
unable to agree with the Court’s determination that the trial
court’s apparent miscalculation of Defendant’s prior record
level points for sentencing purposes constitutes a clerical
error that should be corrected on remand. On the contrary, I
believe that this miscalculation constitutes judicial error and
conclude, given the fact that this error had no impact on the
calculation of Defendant’s prior record level, that there is no
need for us to remand this case to the trial court for the
correction of Defendant’s prior record worksheet. As a result,
I concur in the Court’s opinion in part and dissent from the
Court’s opinion in part.
According to N.C. Gen. Stat. § 15A-1340.14(a), a
defendant’s prior record level is determined “by calculating the -2- sum of the points assigned to each of the offender’s prior
convictions that the court . . . finds to have been proved in
accordance with this section.” In addition, N.C. Gen. Stat. §
15A-1340.14(d) provides that:
For purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used. If an offender is convicted of more than one offense in a single session of district court, only one of the convictions is used.
In the present case, the trial court calculated Defendant’s
prior record level by assigning a single point each for six of
Defendant’s seven prior eligible misdemeanor convictions, two of
which occurred in the Edgecombe County District Court on 10
February 2005 and one of which stemmed from a charge that
appears to have been voluntarily dismissed after the defendant
noted an appeal to the Edgecombe County Superior Court. As a
result of the fact that two of Defendant’s seven eligible
misdemeanor convictions appear to have occurred during a single
session of court and the fact that one of Defendant’s seven
eligible misdemeanor convictions appears to have been overturned
on appeal to the Superior Court, I agree with Defendant’s
contention, which my colleagues have accepted, that the trial
court erred by calculating Defendant’s prior record level using -3- six, rather than five, misdemeanor convictions. However, as
Defendant has candidly acknowledged, the erroneous inclusion of
an additional prior record point based upon Defendant’s
convictions for committing misdemeanor offenses had no impact
upon the calculation of Defendant’s prior record level given
that Defendant would still have been subject to being sentenced
as a Level IV offender even after the removal of the erroneously
assigned prior record point.
Although my colleagues acknowledge that the trial court’s
apparent error had no effect upon the calculation of Defendant’s
prior record level, they have concluded that the trial court
should be required to correct Defendant’s prior record level
worksheet to eliminate any trace of this error from the court
records on the basis of our authority to order the correction of
clerical errors. According to well-established North Carolina
law, “a court of record has the inherent power to make its
records speak the truth and, to that end, to amend its records
to correct clerical mistakes or supply defects or omissions
therein,” State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d
875, 878 (2000) (citation omitted), with a “clerical error”
being defined as “[a]n error resulting from a minor mistake or
inadvertence, esp. in writing or copying something on the
record, and not from judicial reasoning or determination.” Id. -4- (quoting Black’s Law Dictionary 563 (7th ed. 1999)). However, a
trial court lacks the authority, “under the guise of an
amendment of its records, [to] correct a judicial error.” Id.
(citation omitted).1
In State v. Smith, 188 N.C. App. 842, 844-45, 656 S.E.2d
695, 696 (2008), this Court found that a clerical error had
occurred in an instance in which, after correctly identifying
the aggravating factors to be utilized for the purpose of
sentencing Defendant, the trial court misread the form used for
the purpose of determining the aggravating and mitigating
factors utilized in sentencing convicted impaired drivers and
checked the wrong box on that form. In the present case, by
contrast, the record contains no indication that the trial court
did anything other than make a legally erroneous decision
1 As my colleagues correctly note, the decision in Jarman refers to the power of the trial court, rather than an appellate court, to correct clerical errors. The distinction upon which my colleagues rely strikes me as of little importance given that the decisions remanding cases to the trial courts for the correction of clerical errors do not appear to assert a separate, and superior, authority possessed by appellate courts to require the correction of clerical errors. Instead, those decisions appear to me to reflect instructions delivered by the appellate courts to the trial courts to exercise their authority to correct clerical errors in particular circumstances. As a result, the fact that the error correction authority referenced in Jarman and similar cases is possessed by the trial courts does not mean that appellate courts have the authority to order the trial courts to correct errors that trial courts lack the authority to correct on their own. -5- concerning the number of prior record points that Defendant had
accumulated. In other words, instead of making an inadvertent
clerical error, the trial court made an erroneous judicial
determination concerning the number of prior record points that
Defendant had accumulated for felony sentencing purposes. 2 As a
result, given that no clerical error, as compared to an
erroneous judicial determination, appears to have been made and
given Defendant’s concession, which is clearly correct, that
rectification of the trial court’s error in calculating the
2 The Court appears to suggest that the miscalculation of Defendant’s prior record level constituted a clerical, rather than a judicial, error by asserting that “the assistant district attorney prepared Defendant’s prior record level worksheet for the trial court’s signature by filling in the blanks on a standard AOC form and presenting it to the trial judge” and arguing that, “[a]s in Jarman, the record in the case sub judice ‘demonstrates that the trial judge did not exercise any judicial discretion or undertake any judicial reasoning when signing’ the prior record level worksheet.” I am unable to accept the notion that the trial court is engaged in the merely ministerial act of signing off on a prior record level determination made by the prosecutor during the sentencing process given the clear command of N.C. Gen. Stat. § 15A-1340.14 that the trial court, rather than the prosecutor, be responsible for correctly calculating a convicted criminal defendant’s prior record level and the numerous decisions of the Supreme Court and this Court evaluating the extent to which particular trial judges carried out that responsibility in accordance with the applicable law. As a result, the determination at issue here is a far cry from the relatively ministerial calculation of the amount of credit for time served in pretrial confinement at issue in Jarman. State v. Mason, 295 N.C. 584, 594, 248 S.E.2d 241, 248 (1978), cert. denied, 440 U.S. 984, 99 S. Ct. 1797, 60 L. Ed. 2d 246 (1979) (describing the determination of the amount of credit for pretrial confinement to which a convicted criminal defendant is entitled as “a matter for administrative action”). -6- number of prior record points that Defendant had accumulated for
felony sentencing purposes would not result in a reduction in
Defendant’s sentence, 3 I am unable to agree with my colleagues’
determination that this case should be remanded to the trial
court for the correction of Defendant’s prior record level
worksheet and respectfully dissent from my colleagues’
determination to the contrary. 4 I do, however, concur in the
remainder of the Court’s opinion.
3 Although my colleagues correctly note our prior statement in Jarman to the effect that, “[w]here there has been uncertainty in whether an error was ‘clerical,’ the appellate courts have opted ‘to err on the side of caution and resolve [the discrepancy] in the defendant’s favor,’” Jarman, 140 N.C. App. at 203, 535 S.E.2d at 879 (alteration in original) (quoting State v. Morston, 336 N.C. 381, 410, 445 S.E.2d 1, 17 (1994)), they overlook the context in which that statement was made. Aside from the fact that the error at issue here is clearly judicial rather than clerical in nature, the manner in which the court resolved the matter at issue in the decision from which the Jarman court derived the language on which my colleagues rely, which was whether the trial court found the existence of one or multiple aggravating factors for sentencing purposes, was critical to a determination of whether or not the defendant had to be resentenced. As a result, since the manner in which the present dispute is resolved will have no practical impact on Defendant, I question whether the principle upon which my colleagues rely has any relevance in the present case. 4 I concede that the decision that the Court has reached in this case will have little immediate practical impact, when considered in the narrow context in which it has been made. However, the effect of substantially broadening the extent to which litigants are able to obtain appellate decisions requiring the correction of non-clerical errors on remand will, over time, add to the burdens that are already faced by our trial courts and trial court staffs without adding anything of substance to -7-
the quality of justice provided in the General Court of Justice.