State v. Ross ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1162
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Cleveland County
Nos. 09 CRS 53903, 53906-07
TERRANCE JAVARR ROSS
Appeal by defendant from judgments entered 18 April 2013 by
Judge J. Thomas Davis in Cleveland County Superior Court. Heard
in the Court of Appeals 26 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph L. Hyde, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant.
HUNTER, Robert C., Judge.
Defendant Terrance Javarr Ross appeals from judgments
sentencing him based upon convictions for attempted bribery of a
juror, felony obstruction of justice, and solicitation to commit
bribery of a juror. Because the trial court did not consider an
irrelevant and improper matter at sentencing, and did not abuse
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its discretion by imposing consecutive sentences upon defendant,
we find no error.
Background
On 20 July 2009, a grand jury returned indictments charging
defendant with attempted bribery of a juror, felony obstruction
of justice, and solicitation to commit bribery of a juror. A
jury subsequently found defendant guilty of those charges, and
defendant entered a guilty plea to a charge of having attained
the status of an habitual felon. The trial court sentenced
defendant as an habitual felon to three concurrent sentences of
120 to 153 months imprisonment based upon each of the
convictions.
Defendant appealed, and this Court concluded, in part, that
the trial court lacked jurisdiction over the habitual felon
charge because the habitual felon indictment had been returned
before defendant committed the crimes for which the jury found
him guilty. State v. Ross, ___ N.C. App. ___, 727 S.E.2d 370(2012), disc. review denied, 366 N.C. 570, 738 S.E.2d 369(2013). This Court vacated the judgments entered against
defendant and remanded this cause for resentencing within the
appropriate sentencing ranges. Id. at __, 727 S.E.2d at 375.
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The trial court entered new judgments on 18 April 2013,
sentencing defendant to consecutive terms of 21 to 26, 15 to 18,
and 15 to 18 months imprisonment based upon his convictions.
Defendant’s sentences were also set to begin at the expiration
of all sentences to which he was then obligated to serve. On 26
April 2013, defendant filed written notice of appeal from the
judgments.
Discussion
We first address whether defendant’s notice of appeal is
sufficient to confer jurisdiction over his appeal onto this
Court. Rule 4 of the North Carolina Rules of Appellate
Procedure provides, in part, that a written notice of appeal
from a criminal judgment must be served upon all adverse
parties, designate the judgments from which the appeal is taken,
and identify the court to which the appeal is taken. N.C. R.
App. P. 4(a),(b) (2013). A defendant’s failure to comply with
the mandatory provisions of Rule 4 divests this Court of
jurisdiction to hear the appeal. State v. Hughes, 210 N.C. App.
482, 484, 707 S.E.2d 777, 778 (2011); see also Dogwood Dev. &
Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197-98,
657 S.E.2d 361, 365 (2008) (“A jurisdictional default . . .
precludes the appellate court from acting in any manner other
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than to dismiss the appeal. Stated differently, a jurisdictional
default brings a purported appeal to an end before it ever
begins.” (citations and quotation marks omitted)).
Defendant’s pro se written notice of appeal does not
identify the court to which his appeal is taken, was not served
on the State, and does not properly identify all of the
judgments from which he appeals. Thus, we must dismiss
defendant’s appeal for lack of jurisdiction. However, in the
interest of justice and in our discretion, we allow defendant’s
petition for the issuance of a writ of certiorari and reach the
merits of his arguments on appeal.
On appeal, defendant argues the trial court erred and
abused its discretion in sentencing him to consecutive sentences
at the maximum end of the presumptive range. Defendant first
argues the State introduced irrelevant and unfair considerations
into the resentencing process when it urged the trial court to
sentence defendant to consecutive sentences at the maximum end
of the presumptive range because defendant qualified as an
habitual felon. Defendant contends the State’s sentencing
requests sought to atone for its error in obtaining the habitual
felon indictment and failed “to impose a punishment commensurate
with the injury the offense has caused[.]” N.C. Gen. Stat. §
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15A-1340.12 (2013). Defendant further contends that because
nothing about his offenses or himself objectively warranted
deviating from the middle of the available presumptive range,
the State’s comments regarding his qualification for habitual
felon status offended the “public sense of fair play.”
Defendant’s arguments are misplaced.
“When a sentence is within the statutory limit it will be
presumed regular and valid unless ‘the record discloses that the
court considered irrelevant and improper matter in determining
the severity of the sentence.’” State v. Davis, 167 N.C. App.
770, 775, 607 S.E.2d 5, 9 (2005) (quoting State v. Johnson, 320
N.C. 746, 753, 360 S.E.2d 676, 681 (1987)). “If the record
discloses that the court considered irrelevant and improper
matter in determining the severity of the sentence, the
presumption of regularity is overcome, and the sentence is in
violation of [the] defendant’s rights.” State v. Boone, 293
N.C. 702, 712, 239 S.E.2d 459, 465 (1977). Where “the record
reveals no such express indication of improper motivation,” the
defendant is not entitled to a new sentencing hearing. Johnson,
320 N.C. at 753, 360 S.E.2d at 681.
Here, the record contains no express indication of improper
motivation. The State’s comment that defendant qualified as an
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habitual felon cannot be considered an irrelevant and improper
matter in defendant’s sentencing. In calculating a defendant’s
prior record level, trial courts routinely see information that
indicates whether or not a defendant would qualify as an
habitual felon. It is clear that a trial court may not sentence
a defendant as an habitual felon without a proper conviction for
attaining that status. However, there is nothing that prohibits
a trial court from considering the number and nature of a
defendant’s prior convictions when it decides which specific
sentence to select within the discretionary range of minimum
terms established by a defendant’s prior record level and class
of offense. State v. Oakes, ___ N.C. App. ___, ___, 724 S.E.2d
132, 137-38 (2012); see also State v. Parker, 143 N.C. App. 680,
685-86, 550 S.E.2d 174, 177 (2001) (“The Structured Sentencing
Act clearly provides for judicial discretion in allowing the
trial court to choose a minimum sentence within a specified
range.”). The trial court’s imposition of the maximum possible
sentence in the presumptive range, as requested by the State,
was within its discretion, so defendant has not met his burden
of showing his sentences are based on irrelevant or
impermissible factors.
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Defendant also argues that consecutive sentences were not
warranted in his case based on the nonviolent nature of his
offenses and the fact that all of them arose out of the same
conduct. However, “[i]t is well established that the decision
to impose consecutive or concurrent sentences is within the
discretion of the trial judge and will not be overturned absent
a showing of abuse of discretion.” State v. Espinoza–
Valenzuela, 203 N.C. App. 485, 497, 692 S.E.2d 145, 154, disc.
review denied, 364 N.C. 328, 701 S.E.2d 238 (2010). Defendant
cites to no authority, and we know of none, that suggests it is
an abuse of discretion to impose consecutive sentences based
upon convictions for committing non-violent offenses, and
defendant concedes that his conduct constituted the distinct
offenses for which the jury found him guilty.
Conclusion
We hold defendant has not shown the trial court abused its
discretion in sentencing defendant to consecutive sentences, and
we find no error in the judgments entered.
NO ERROR.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).