State v. Murphy ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1287
Filed: 21 August 2018
Pitt County, Nos. 15 CRS 053992, 059558; 16 CRS 051968, 053427–28, 058376, 17
CRS 05909
STATE OF NORTH CAROLINA
v.
JAMES LEE MURPHY
Appeal by defendant from judgments entered 21 March 2017 by Judge Cy A.
Grant in Pitt County Superior Court. Heard in the Court of Appeals 16 May 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Kacy L.
Hunt, for the State.
The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant.
ELMORE, Judge.
Defendant James Lee Murphy appeals criminal judgments entered upon his
guilty pleas to seven counts of felony breaking and entering into seven different
residences on different dates, and a civil judgment ordering he pay $23,113.00 in
restitution to fourteen alleged victims identified in the State’s restitution worksheet.
In return for defendant’s pleas and his stipulation to restitution as provided in the
State’s restitution worksheet, the State dismissed thirteen indictments against him,
three of which contained the only charges linked to losses suffered by four of the
fourteen alleged victims to whom the trial court ordered he pay restitution.
STATE V. MURPHY
Opinion of the Court
On appeal, defendant challenges the factual basis for two of his seven pleas
and the validity of the trial court’s restitution order. Despite defendant’s failure to
give notice of appeal at sentencing, N.C. R. App. P. 4(a), we allow his petition to issue
a writ of certiorari solely to review the restitution order and address his arguments
that (1) the trial court lacked authority to order restitution as to the four victims not
affected by the seven breaking-and-entering counts to which he pled guilty; and (2)
since the invalidly ordered restitution was part of the plea agreement, his entire plea
agreement must be set aside and the case remanded for new proceedings.
Because a trial court is only statutorily authorized to order restitution for
losses attributable to a defendant’s perpetration of crimes for which he or she is
convicted, we hold the trial court invalidly ordered defendant to pay restitution for
pecuniary losses arising from his alleged perpetration of the charges in the three
indictments the State dismissed pursuant to the plea agreement. Additionally,
although defendant stipulated to this invalidly ordered restitution in the plea
agreement, a stipulation to restitution is not an express agreement to pay restitution,
and we therefore hold that defendant’s entire plea agreement need not be set aside.
Accordingly, we vacate the restitution order and remand for resentencing only on the
issue of restitution.
I. Background
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Opinion of the Court
From 8 August 2016 to 27 February 2017, defendant was indicted for multiple
breaking-and-entering and related larceny charges, including offenses defendant
allegedly perpetrated at ten different residences on different dates. On 21 March
2017, defendant entered in a plea agreement in which he pled guilty to seven felony
breaking-and-entering charges at seven of the ten residences and stipulated to
restitution as provided in the State’s restitution worksheet; in return, the State
dismissed the remaining indictments, including the offenses defendant allegedly
perpetrated at the other three residences. In the transcript of plea, the plea
arrangement provides that “[defendant] will plea to 7 counts of breaking and/or
entering in lieu of the charges listed on the back of this transcript[,]” and defendant
checked the following box: “The defendant stipulates to restitution to the party(ies)
in the amounts set out on ‘Restitution Worksheet, Notice And Order (Initial
Sentencing)’ (AOC-CR-611).” The restitution worksheet listed fourteen alleged
victims—ten of whom were linked to the seven residences defendant pled guilty to
breaking into and entering; four of whom were linked to the three residences
defendant was charged with breaking into and entering, but the State dismissed
pursuant to the plea agreement.
On 22 March 2017, the trial court at the plea hearing described the entire plea
agreement as follows: “And the plea bargain is that upon your plea of guilty to these
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Opinion of the Court
seven charges the State will dismiss all other charges[.]” After accepting defendant’s
guilty pleas, the trial court during sentencing ordered that
[a]s a condition of work release and post-trial release, the
Defendant is to make restitution to Shelton [sic] Dancy in
the amount of $1706.00; Sheldon Jordan in the amount of
$600.00; to Brice Wagoner, [sic] $600.00; to Ciandra [sic]
Carmack, $1750.00; to Jeremy Williams and Tomika [sic]
Brimmage [sic] . . . $4125.00; to Jasmine Howard, $997.00;
Randy Robertson, $1050.50; to Carmen [sic] Keeter,
$650.00; to Jose Martinez, $1400.00; to Natalie Day,
$1735.00; to Shaquela [sic] Day, $1000.00; to Jordan
Hostetler, $500.00.
That same day, the trial court entered a civil judgment ordering defendant to
pay, inter alia, $23,113.00 in restitution; and criminal judgments imposing seven
consecutive sentences of eight to nineteen months in prison, recommending work
release, and recommending payment of the civil judgment as a condition of
defendant’s probation and to be taken from his work-release earnings. Seven days
later, on 29 March, defendant returned to the trial court requesting a reconsideration
of his sentence. When the trial court denied his request, defendant gave oral notice
of appeal.
II. Errors Raised
On appeal, defendant asserts the trial court erred by (1) accepting his guilty
pleas because two of the seven felony breaking-and-entering counts were factually
unsupported, and (2) ordering he pay restitution to alleged victims of the charges
dismissed by the State pursuant to the plea agreement.
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STATE V. MURPHY
Opinion of the Court
III. Appellate Jurisdiction
Defendant concedes his right to appellate review is contingent upon this Court
granting his petition for certiorari review because, as a guilty pleading defendant, he
has no statutory right to challenge the factual basis for his pleas, see N.C. Gen. Stat.
§ 15A-1444(e) (2017), and, further, he violated our Appellate Procedure Rule 4(a) by
failing to give oral notice of appeal at sentencing, see N.C. R. App. P. 4(a) (requiring
in part “oral notice of appeal at trial”). Accordingly, defendant has petitioned this
Court to issue a writ of certiorari in order to enable us to conduct a merits review of
the two main issues he raises on appeal. See N.C. Gen. Stat. § 15A-1444(e)
(permitting a defendant to “petition the appellate division for review [of whether his
or her guilty pleas were supported by a sufficient factual basis] by writ of certiorari”);
N.C. R. App. P. 21(a)(1) (granting this Court authority to issue a writ of certiorari “in
appropriate circumstances” to review lower court judgments and orders, including
but not limited to “when the right to prosecute an appeal has been lost by failure to
take timely action[.] . . .”).
After carefully considering the arguments presented in defendant’s principal
and reply briefs, and in his petition, we conclude there is no merit to his challenges
to the factual bases of his pleas and thus decline to exercise our discretion to issue a
writ of certiorari to address the first issue he presents. However, because we conclude
defendant’s challenges to the restitution order have merit, we exercise our discretion
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STATE V. MURPHY
Opinion of the Court
to issue a writ of certiorari in order to review the restitution order and address the
merits of the second issue he presents. See, e.g., State v. Ross, 369 N.C. 393, 400, 794
S.E.2d 289, 293 (2016) (“The decision concerning whether to issue a writ of certiorari
is discretionary, and thus, the Court of Appeals may choose to grant such a writ to
review some issues that are meritorious but not others for which a defendant has
failed to show good or sufficient cause.” (citing Womble v. Moncure Mill & Gin Co.,
194 N.C. 577, 579, 140 S.E. 230, 231 (1927)).
IV. Analysis
Defendant argues (1) trial courts have no authority to order restitution to
victims of unconvicted crimes and, therefore, the trial court here invalidly ordered he
pay restitution to alleged victims of the charges the State dismissed pursuant to the
plea agreement; and (2) because this invalidly awarded restitution was part of the
plea agreement, the proper remedy on appeal is to vacate his entire plea agreement
and remand for new proceedings.
The State does not address the trial court’s statutory authority to award
restitution to victims of unconvicted crimes; rather, it argues, (1) because defendant
in his plea agreement stipulated to restitution to those victims, the State was relieved
of its burden to present evidence to support restitution and thus the restitution
ordered should be affirmed; and (2) even if restitution was invalidly awarded to
alleged victims of charges the State dismissed, the proper remedy here is not to set
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STATE V. MURPHY
Opinion of the Court
aside the entire plea agreement but to vacate the restitution order and remand for
resentencing solely on the issue of restitution.
We agree with defendant that the restitution ordered to the four victims for
pecuniary losses linked only to defendant’s conduct in allegedly perpetrating the
crimes charged in the three dismissed indictments was invalid. However, we agree
with the State that the proper remedy is not to set aside the entire plea agreement
but to vacate the restitution order and remand for resentencing solely on restitution.
A. Restitution
N.C. Gen. Stat. § 15A-1340.34 governs “[r]estitution generally” and instructs
that “[w]hen sentencing a defendant convicted of a criminal offense, the court shall
determine whether the defendant shall be ordered to make restitution to any victim
of the offense in question.” Id. § 15A-1340.34(a) (2017) (emphasis added). Our guilty
plea statute, while not using the term “convicted,” provides that a “proposed plea
arrangement may include a provision for the defendant to make restitution . . . to . . .
aggrieved . . . parties for the . . . loss caused by the . . . offenses committed by the
defendant.” N.C. Gen. Stat. § 15A-1021(c) (2017) (emphasis added). Similarly, our
statute governing conditions of probation provides that, “[a]s a condition of probation,
a defendant may be required to make restitution . . . to . . . aggrieved . . . parties . . .
for the . . . loss caused by the defendant arising out of the . . . offenses committed by
the defendant.” N.C. Gen. Stat. § 15A-1343(d) (2017) (emphasis added).
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STATE V. MURPHY
Opinion of the Court
Thus, the restitution authorized under our General Statutes requires a direct
nexus between a convicted offense and the loss being remedied. Compare State v.
Billinger, 213 N.C. App. 249, 258, 714 S.E.2d 201, 208 (2011) (“As we have vacated
defendant’s conspiracy conviction . . . , there is no conspiracy conviction to which the
restitution order may be attached. Consequently, we must also vacate the restitution
award . . . .”); with State v. Dula, 67 N.C. App. 748, 751, 313 S.E.2d 899, 901 (1984)
(upholding restitution ordered for stolen goods to a victim of an alleged breaking-and-
entering and related larceny, despite a jury acquittal on the larceny charge, since the
jury convicted the defendant of the related breaking-and-entering charge, and
restitution was ordered as a condition of probation), aff’d per curiam, 312 N.C. 80, 80,
320 S.E.2d 405, 406 (1984) (“The Court of Appeals correctly held that the trial court
did not commit error when it required the defendant to make restitution for the loss
and damage caused by the defendant ‘arising out of’ the offense committed by her as
provided by G.S. 15A-1343(d).”). Put another way, restitution is securely tied to the
losses attributable to the offenses of conviction. See, e.g., State v. Valladares, 182
N.C. App. 525, 526, 642 S.E.2d 489, 491 (2007) (“It is well settled that ‘for an order of
restitution to be valid, it must be related to the criminal act for which defendant was
convicted, else the provision may run afoul of the constitutional provision prohibiting
imprisonment for debt.’ ” (quoting State v. Froneberger, 81 N.C. App. 398, 404, 344
S.E.2d 344, 348 (1986)).
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STATE V. MURPHY
Opinion of the Court
Here, the trial court entered a civil judgment requiring defendant to pay
$23,113.00 in restitution in relevant part as follows: (1) $1,050.50 to Randy
Robertson for 15 CRS 54923, which included one felony breaking-and-entering count
and one larceny-after-breaking-and-entering count, arising from offenses defendant
allegedly perpetrated on 26 May 2015 at 341 Ormond Street in Ayden; (2) $650.00 to
Camryn Keeter for 16 CRS 52073, which included one breaking-and-entering-with-
the-intent-to-commit-a-larceny count, arising from an offense defendant allegedly
perpetrated on 15 March 2016 at 110 South Harding Street in Greenville; (3)
$1,400.00 to Jose Martinez for 16 CRS 52074, which included one breaking-and-
entering-with-the-intent-to-commit-a-larceny count, arising from an offense
defendant allegedly perpetrated on 18 February 2016 at 1088 Cheyenee Court in
Greenville; and (4) $500.00 to Jordan Hostetler for an unidentified offense. Pursuant
to the plea agreement, defendant pled guilty to seven counts of felony breaking and
entering into seven other residences on different dates, and the State dropped, inter
alia, the indictments in 15 CRS 54923, 16 CRS 52073, and 16 CRS 52074. These
indictments contained the only charges against defendant for conduct attributable to
the alleged losses suffered by Robertson, Keeter, Martinez, and Hostetler.1
1 While the first three alleged victims were identified in the indictments, both parties on appeal
concede the State’s restitution worksheet contains the only record reference to Hostetler. We note that
worksheet indicates Hostetler shared the same physical address as Keeter, 110 South Harding Street,
indicating Hostetler could only be an alleged victim of the same breaking-and-entering offense in 16
CRS 52073. We also note the arrest warrant alleges defendant stole $1,200.00 of personal property
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STATE V. MURPHY
Opinion of the Court
As defendant was not convicted of any breaking-and-entering or related
offenses as to the three residences of these four alleged victims, and as the alleged
pecuniary losses suffered by these four alleged victims were unrelated to defendant’s
conduct in perpetrating the seven other break-ins to which he pled guilty, we hold
the trial court lacked statutory authority to order restitution as to Robertson, Keeter,
Martinez, and Hostetler. See Billinger, 213 N.C. App. at 258, 714 S.E.2d at 208.
We recognize that our Supreme Court in Dula affirmed in a per curiam opinion
our holding that a trial court validly ordered restitution as a condition of the
defendant’s probation to a victim for the pecuniary loss of personal property allegedly
stolen from her residence, although the jury acquitted the defendant of the larceny
charge. See Dula, 312 N.C. at 80, 320 S.E.2d at 406 (“The Court of Appeals correctly
held that the trial court did not commit error when it required the defendant to make
restitution for the loss and damage caused by the defendant ‘arising out of’ the offense
committed by her . . . .”). However, the jury in Dula convicted the defendant of a
related breaking-and-entering-with-the-intent-to-commit-a-larceny charge she
allegedly perpetrated at the same residence and on the same date. Dula, 67 N.C.
App. at 751, 313 S.E.2d at 901. Thus, the restitution ordered as a condition of the
defendant’s probation in Dula was not solely supported by the acquitted larceny
charge but “ar[ose] out of” the breaking-and-entering conviction.
from Keeter, which appears to support the later restitution award of $650.00 to Keeter and $500.00 to
Hostetler.
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STATE V. MURPHY
Opinion of the Court
Here, contrarily, the charges in the three dismissed indictments were wholly
unrelated to defendant’s conduct in perpetrating the seven breaking-and-entering
charges to which he pled guilty, offenses that occurred at seven different residences
on seven different dates. Therefore, unlike the restitution ordered as to the victims
of the breaking-and-entering charges to which defendant pled guilty, the restitution
ordered as to the alleged victims of the charges that were dismissed did not “aris[e]
out of” any offense for which defendant was convicted.
As to the State’s argument that the restitution ordered should nonetheless be
upheld based on defendant’s stipulation in the plea arrangement to restitution as to
these four alleged victims, we conclude that parties to a plea agreement cannot by
stipulation increase the statutory powers of a sentencing judge to authorize
restitution beyond that allowed under our General Statutes.
Accordingly, because the trial court lacked statutory authority to order
defendant pay restitution to alleged victims of unconvicted offenses for losses not
attributable to his conduct in perpetrating the offenses to which he pled guilty, its
order of restitution as to Robertson, Keeter, Martinez, and Hostetler was invalid.
Having reached this conclusion, we next turn to the appropriate appellate remedy.
B. Plea Agreement
Defendant asserts that because he agreed to pay this invalid restitution as part
of the plea deal, the appropriate remedy is to set aside his entire plea agreement and
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Opinion of the Court
remand the case for new proceedings. The State replies that the appropriate remedy,
as ordinarily applied when restitution is invalidly ordered, is to vacate the restitution
order and remand the case solely for resentencing on restitution. See, e.g., State v.
Hunt, ___ N.C. App. ___, ___, 792 S.E.2d 552, 563 (2016). We agree with the State.
To support his request to set aside the entire plea agreement, defendant relies
on State v. Rico, 218 N.C. App. 109, 720 S.E.2d 801 (Steelman, J., dissenting), rev'd
for reasons stated in dissent, 366 N.C. 327, 734 S.E.2d 571 (2012) (per curiam). In
Rico, the defendant was charged with murder and entered into a plea agreement in
which he pled guilty to voluntary manslaughter. Id. at 110, 720 S.E.2d at 802. As
part of the plea agreement, the defendant admitted to the existence of an aggravating
factor and agreed to a sentence in the aggravating range, id. at 111, 720 S.E.2d at
802, which both the majority panel and dissenting judge agreed the sentencing judge
was statutorily unauthorized to impose, id. at 118–19, 720 S.E.2d at 807.
As to the appropriate remedy, the majority panel reasoned that because the
defendant “fully complied with the terms of his plea agreement, and the risk of any
mistake in a plea agreement must be borne by the State[,]” “the State remains bound
by the plea agreement[.]” Id. at 119, 720 S.E.2d at 807. Therefore, the majority
decreed, the “defendant should be resentenced upon his guilty plea to voluntary
manslaughter.” Id. The dissenting judge reasoned that “essential and fundamental
terms of the plea agreement were unfulfillable[,]” and the defendant “cannot
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STATE V. MURPHY
Opinion of the Court
repudiate in part without repudiating the whole[.]” Id. at 122, 720 S.E.2d at 809.
Thus, the dissenting judge opined that “[t]he entire plea agreement must be set aside,
and this case remanded . . . for disposition on the original charge of murder.” Id. On
appeal, our Supreme Court in a per curiam opinion reversed the majority’s decision
as to the appropriate remedy and adopted the dissenting judge’s disposition of setting
aside the entire plea agreement. Rico, 366 N.C. at 327, 734 S.E.2d at 571. Rico is
distinguishable because the payment of restitution was not an “essential or
fundamental term[ ]” of defendant’s plea agreement.
Here, in the transcript of plea, the arrangement provided that “[defendant] will
plea to 7 counts of breaking and/or entering in lieu of the charges listed on the back
of this transcript[,]” and defendant checked the following box in that same section:
“The defendant stipulates to restitution to the party(ies) in the amounts set out on
‘Restitution Worksheet, Notice And Order (Initial Sentencing)’ (AOC-CR-611).”
At the plea hearing, the following relevant colloquy occurred:
THE COURT: Now, you are pleading guilty to seven
charges of breaking and/or entering; correct?
THE DEFENDANT: Yes, sir.
....
THE COURT: And you agree that the plea of guilty is part
of a plea bargain; correct?
THE DEFENDANT: Yes, sir.
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Opinion of the Court
THE COURT: And the plea bargain is that upon your plea
of guilty to these seven charges the State will dismiss all
other charges -
THE DEFENDANT: Yes, sir.
THE COURT: - in Superior and District Court?
THE DEFENDANT: Yes, sir.
THE COURT: Do you now accept this arrangement?
THE DEFENDANT: Yes, sir.
(Emphasis added.) Following its acceptance of defendant’s guilty pleas, the trial court
recommended work release and ordered “as a condition of work release and post-trial
release” that defendant pay the particular orders of restitution.
As reflected, despite defendant’s stipulation to restitution as provided in the
State’s restitution worksheet, defendant never agreed to pay restitution as part of the
plea agreement. Rather, as described in the transcript of plea and explained during
the plea colloquy, the essential and fundamental terms of the plea agreement were
that defendant would plead to seven counts of felony breaking-and-entering, and the
State would drop the remaining charges. A stipulation to restitution as part of a plea
agreement merely relieves the State of its burden to present a supportive factual
basis, cf. State v. Blount, 209 N.C. App. 340, 348, 703 S.E.2d 921, 927 (2011) (“A
restitution worksheet, unsupported by testimony, documentation, or stipulation, ‘is
insufficient to support an order of restitution.’ ” (emphasis added) (quoting State v.
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STATE V. MURPHY
Opinion of the Court
Mauer, 202 N.C. App. 546, 552, 688 S.E.2d 774, 778 (2010)); it is not an express
agreement to pay that particular restitution as a condition of the plea agreement. As
defendant never agreed to pay restitution as part of the plea agreement, the invalidly
ordered restitution was not an “essential or fundamental” term of the deal.
Accordingly, we hold the proper remedy here is not to set aside defendant’s entire
plea agreement but to vacate the restitution order and remand for resentencing solely
on the issue of restitution.
V. Conclusion
The trial court’s restitution order in this case was unauthorized. Defendant
pled guilty only to breaking and entering the seven residences of Sheldon Jordan,
Shakeela and Natalie Day, Sheldon Dancy and Natasha Williams, Jeremy Williams
and Tonica Brimage, Ceondra Carmack, Jasmine Howard, and Brice Wagner.
Because the restitution order encompassed losses stemming from breaking-and-
entering and related larceny offenses defendant allegedly perpetrated at three
different homes on different dates, the trial court lacked statutory authority to order
defendant pay restitution to the four residents of those three homes—Randy
Robertson, Jose Martinez, Camryn Keeter, and Jordan Hostetler. Additionally,
although defendant stipulated in the plea agreement to restitution to these four
alleged victims, he never expressly agreed to pay restitution as part of that
agreement. As the invalidly ordered restitution was not an essential or fundamental
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STATE V. MURPHY
Opinion of the Court
term of the plea agreement, the entire plea agreement need not be set aside.
Accordingly, we vacate the trial court’s restitution order and remand for resentencing
solely on the issue of restitution.
VACATED AND REMANDED.
Judges HUNTER, JR. and ZACHARY concur.
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