State v. Wood ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1258
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
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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
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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.
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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
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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
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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).