State v. Wood

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA13-1258 NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Rutherford County No. 12 CRS 00294 APRIL BLAND WOOD

Appeal by Defendant from order entered 15 April 2013 by

Judge Gary Gavenus in Superior Court, Rutherford County. Heard

in the Court of Appeals 29 April 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Donald R. Teeter, Sr., for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender John F. Carella and Assistant Appellate Defender Benjamin Dowling-Sendor, for Defendant-Appellant.

McGEE, Judge.

April Bland Wood (“Defendant”) appeals from the trial

court's order modifying the terms of her probation and imposing

Confinement in Response to Violation (“CRV”) for a period of

sixty days, pursuant to N.C. Gen. Stat. § 15A–1344(d2) (2013).

Defendant pleaded guilty to possession of stolen goods and

possession of methamphetamine on 7 March 2011. In accordance -2- with Defendant’s plea agreement, the trial court sentenced

Defendant to an active term of six to eight months’ imprisonment

for possession of stolen goods, and a suspended term of four to

five months’ imprisonment for possession of methamphetamine.

The trial court placed Defendant on supervised probation for

thirty months.

Probation violation reports were filed in February and May

2012, alleging that Defendant violated the terms of her

probation. The trial court entered an order finding Defendant

in violation of her probation on 6 August 2012, and imposed a

ninety-day CRV.

Probation violation reports were again filed on 28 January

2013 alleging that Defendant had again violated her probation.

The trial court entered an order on 15 April 2013 finding that

Defendant was in violation of her probation and ordered

Defendant incarcerated for sixty days ‒ the balance of her

remaining sentence ‒ as CRV. See N.C. Gen. Stat. § 15A–

1344(d2).

Defendant wrote to the superior court on 21 April 2013 and

requested an appeal. Appellate entries were filed and the

Appellate Defender was appointed to represent Defendant.

Defendant filed a petition for writ of certiorari with this -3- Court on 9 December 2013, in which counsel conceded that

Defendant’s letter to the superior court failed to comply with

Rule 4 of the North Carolina Rules of Appellate Procedure.

Specifically, Defendant’s letter failed to specify the court to

which she wished to appeal, did not designate the order from

which she wished to appeal, and was not served upon the State.

Accordingly, Defendant requested that this Court issue a writ of

certiorari to review the trial court’s 15 April 2013 order.

The State moved to dismiss Defendant’s appeal on 15 January

2014. The State contends that, even if the Court were to

overlook Defendant’s failure to comply with Rule 4, the appeal

should be dismissed. The State asserts that a defendant does

not have a statutory right to appeal from an order imposing CRV

pursuant to N.C. Gen. Stat. § 15A-1347. State v. Romero, __

N.C. App. __, 745 S.E.2d 364 (2013). We note, however, that

this Court declined to express any opinion on the issue of

whether a CRV that constitutes the balance of a defendant’s

sentence would constitute a de facto revocation entitling the

defendant to appellate review. Romero, __ N.C. App. at __ n. 1,

745 S.E.2d at 366 n.1; N.C. Gen. Stat. § 15A–1344(d2). In our

discretion, we grant Defendant’s petition for writ of

certiorari, and deny the State’s motion to dismiss. -4- We conclude, however, that Defendant’s appeal is wholly

frivolous in that counsel appointed to represent Defendant has

been unable to identify any issue with sufficient merit to

support a meaningful argument for relief on appeal and asks that

this Court conduct its own review of the record for possible

prejudicial error. Counsel has also shown to the satisfaction

of this Court that they have complied with the requirements of

Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and

State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising

Defendant of her right to file written arguments with this Court

and providing Defendant with the documents necessary for her to

do so.

Defendant has not filed any written arguments on her own

behalf with this Court and a reasonable time in which she could

have done so has passed. In accordance with Anders, we have

fully examined the record to determine whether any issues of

arguable merit appear therefrom. We have been unable to find

any possible prejudicial error and conclude that the appeal is

wholly frivolous. Accordingly, we affirm the trial court’s

order.

Furthermore, Defendant requests this Court to remand this

case “for correction of the trial court’s order dated 15 April -5- 2013 to correct the dates of the violation reports and delete

the reference to the non-existen[t] third paragraph of the

second violation report.” Counsel for Defendant notes that

“[s]uch a remand by itself, however, will provide [Defendant]

with no relief[.]” We note that the practice of remanding for

correction of a clerical error appears to be a relatively new

practice deriving from State v. Smith, 188 N.C. App. 842, 845,

656 S.E.2d 695, 696 (2008).

The cases which Smith cites show that the “clerical error”

analysis previously consisted of reviewing a correction the

trial court had already made to see whether the error corrected

was judicial or merely clerical. See State v. Taylor, 156 N.C.

App. 172, 177, 576 S.E.2d 114, 117-18 (2003); State v. Cannon,

244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956).

The trial court has the authority to correct clerical

errors. “It is universally recognized that a court of record has

the inherent power and duty to make its records speak the

truth.” State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d

781, 784 (1999) (quoting Cannon, 244 N.C. at 403, 94 S.E.2d at

342). On the other hand, the trial court does not have the

authority to correct judicial errors. Taylor, 156 N.C. App. at -6- 176, 576 S.E.2d at 117 (a trial court cannot, “under the guise

of an amendment of its records, correct a judicial error”).

Smith therefore appears to be inconsistent with older case

law. However, pursuant to State v. Jones, 358 N.C. 473, 487,

598 S.E.2d 125, 134 (2004), we may only point out the

inconsistency. In accordance with Smith, this case is so

remanded for correction of the clerical errors noted.

Affirmed in part; remanded in part.

Judges ELMORE and DAVIS concur.

Report per Rule 30(e).