             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-549

                                Filed: 21 June 2016

Wake County, Nos. 11 CRS 226769, 226773-75

STATE OF NORTH CAROLINA

            v.

ROBERT EARL SPENCE, JR., Defendant.


      Appeal by defendant from judgments entered 18 December 2014 by Judge Paul

C. Ridgeway in Superior Court, Wake County. Heard in the Court of Appeals 19

November 2015.


      Attorney General Roy A. Cooper III, by Assistant Attorney General Kimberly N.
      Callahan, for the State.

      Amanda S. Zimmer for defendant-appellant.


      STROUD, Judge.


      Defendant Robert Earl Spence, Jr. appeals from the trial court’s judgments

resentencing him in the presumptive range to three consecutive sentences of 230 to

285 months. On appeal, defendant argues that the trial court failed to conduct the

resentencing hearing de novo. He also argues that the court failed to comply with an

earlier mandate issued by this Court when it arrested judgment on three sex offense

convictions that were vacated by this Court. Since the trial court need not make

specific findings of mitigating factors for a sentence in the presumptive range, and
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the record indicates that the court did review the evidence and factors presented

anew, we conclude that it properly conducted a resentencing hearing de novo.

Moreover, we find that the trial court improperly stated that it “arrested judgment”

on the first-degree sex offense convictions in all four judgments, rather than properly

indicating that three of those convictions were in fact vacated by this Court

previously. In addition, the court also included one sex offense conviction that was

not vacated by this Court in the group of “arrested” judgments. Accordingly, we

affirm the trial court’s judgments in part but vacate the judgment for each case in

which the court noted that it was “arresting judgment” on the first-degree sex offenses

and remand for proper entry and to correct the record accordingly.

                                               Facts

      Defendant was indicted on 12 December 2011 for four counts of first-degree

rape, four counts of first-degree sex offense, and four counts of incest with a near

relative stemming from numerous acts of sexual misconduct committed by defendant

to his daughter, Donna1, from the time she was five years old until she reached the

age of 12. Defendant was tried by jury from 10 June 2013 until 18 June 2013. At the

trial, Donna could recall the locations where the sexual attacks occurred but could

not remember dates or time frames. The State tried to establish the time frames of

the offenses by establishing when defendant lived at the various locations. On 18



      1   We use a pseudonym to protect the privacy of the juvenile victim.

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June 2013, a jury found him guilty of four counts of first-degree rape, four counts of

first-degree sex offense, and four counts of incest with a near relative. Defendant was

sentenced in the presumptive range to three consecutive sentences of 230 to 285

months. Defendant appealed to this Court.

      On 18 November 2014, this Court issued an opinion finding no error in part

but also vacating three of the four convictions for first-degree sexual offense, in 11

CRS 226769, 11 CRS 226773, and 11 CRS 226774, because there was insufficient

evidence in the record to establish that those offenses occurred in 2001, 2004, or 2005

as alleged in the indictments. This Court noted: “With regard to 11 CRS 226769, the

only evidence that a sex offense had occurred was when Donna read an entry from

her journal that chronicled her prior abuse and other witnesses testified about

statements Donna made to them prior to trial.” After explaining its reasoning in

more detail, this Court then concluded: “the State failed to provide substantial

evidence of a first-degree sex offense in 2001, and the trial court erred by denying

defendant’s motion to dismiss this charge in 11 CRS 226769.” This Court found

further that “the State failed to provide substantial substantive evidence of a ‘sexual

act’ for the first-degree sex offense charges in 11 CRS 226773 and 11 CRS 226774.”

The case was remanded for a new sentencing hearing in light of this opinion.

      On remand, the trial court acknowledged that the sex offense convictions had

been vacated in 11 CRS 226769, 11 CRS 226773, and 11 CRS 226774.                At the



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resentencing hearing, the State explained that those three convictions originally

“were all consolidated with other charges.” Then, the State requested “that the same

sentencing occur and just subtract those.” Defendant’s trial counsel asked the court

to consider and find multiple mitigating factors. After hearing those factors, the trial

court informed defendant that it would “enter three judgments consistent with the

Court of Appeals ruling or mandate in this case, and the net effect will be the same

as the sentences that are already imposed.           These judgments are within the

presumptive range.”

      The court entered a judgment in 11 CRS 226769 with the following note:

             In accordance to the North Carolina Court of Appeals
             judgment dated 8 December 2014, the court will vacate the
             judgments that were entered for first degree sexual offense
             in case numbers 11CRS 226769, 11CRS 226773, and
             11CRS 226774. Therefore this court will have to conduct a
             new sentencing hearing.

The trial court entered judgments in 11 CRS 226769, 11 CRS 226773, 11 CRS 226774,

and 11 CRS 226775 relating to the first-degree sexual offense convictions stating that

“[t]he Court arrested judgment on this count based on the judgment from the Court

of Appeals vacating this conviction.” The court then resentenced defendant in the

presumptive range to three consecutive sentences of 230 to 285 months. Defendant

timely appealed to this Court.

                                      Discussion

      I.     Referred motion to dismiss


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      The State filed a motion to dismiss defendant’s appeal, arguing that defendant

has no statutory right to appeal his presumptive range sentences imposed under N.C.

Gen. Stat. § 15A-1444(a1) (2015). N.C. Gen. Stat. § 15A-1444(a1) provides:

             (a1) A defendant who has been found guilty, or entered a
             plea of guilty or no contest to a felony, is entitled to appeal
             as a matter of right the issue of whether his or her sentence
             is supported by evidence introduced at the trial and
             sentencing hearing only if the minimum sentence of
             imprisonment does not fall within the presumptive range
             for the defendant’s prior record or conviction level and class
             of offense. Otherwise, the defendant is not entitled to
             appeal this issue as a matter of right but may petition the
             appellate division for review of this issue by writ of
             certiorari.

Specifically, the State argues that since defendant “was sentenced in the presumptive

range, he does not have a right to appeal this issue under section 15A-1444(a1).”

      Defendant points out, however, that he does not challenge on appeal whether

his sentences were supported by the evidence. Rather, defendant raises issue with

whether the trial court failed to conduct his resentencing hearing de novo and

whether the trial court erred by arresting judgment on the sex offense convictions.

Thus, since defendant makes no challenge regarding the sufficiency of the evidence,

defendant argues N.C. Gen. Stat. § 15A-1444(a1) is inapplicable. We agree.

      This Court addressed a similar situation in State v. Hagans, 188 N.C. App.

799, 656 S.E.2d 704 (2008). In Hagans, the defendant appealed after a jury found

him guilty of possession of a firearm by a felon, assault with a deadly weapon, and



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discharge of a firearm into an occupied vehicle. Id. at 800, 656 S.E.2d at 705. This

Court then vacated the possession of a firearm by a felon conviction and remanded to

the trial court for resentencing. Id. The defendant appealed from his new sentence,

arguing that “the trial judge who sentenced him was biased and that his due process

rights, therefore, were violated.” Id. at 801, 656 S.E.2d at 706. On appeal, this Court

concluded that the defendant “does not contend that his sentence was not supported

by the evidence, but rather than the sentencing judge was biased. Therefore, section

15A-1444(a1) does not bar defendant’s appeal of this matter.” Id. at 801 n. 2, 656

S.E.2d at 706 n.2.

      Similarly, here, defendant raises issue not with whether his sentence was

supported by the evidence but rather with whether the trial court applied the proper

standard of review and whether it correctly followed this Court’s earlier mandate to

vacate three of the offenses. Since defendant, like the defendant in Hagans, does not

challenge whether his sentence is supported by the evidence, N.C. Gen. Stat. § 15A-

1444(a1) does not bar his appeal. Accordingly, we deny the State’s referred motion

to dismiss defendant’s appeal and turn now to the issues raised on appeal.

      II.    Resentencing Hearing: De novo review

      On appeal, defendant first argues that the trial court erred and failed to

conduct his resentencing hearing de novo. “Should this Court find a sentencing error

and remand a case to the trial court for resentencing, that hearing shall generally be



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conducted de novo. Pursuant to a de novo review on resentencing, the trial court

must take its own look at the evidence.” State v. Paul, 231 N.C. App. 448, 449-50,

752 S.E.2d 252, 253 (2013) (internal citation, quotation marks, and brackets omitted).

      Defendant argues that the trial court erred in this case because his defense

counsel presented a list of mitigating factors to be considered by the trial court and

“[w]ithout indicating it had newly considered these factors, the trial court stated, ‘I’m

going to enter three judgments consistent with the Court of Appeals ruling or

mandate in this case, and the net effect will be the same as the sentences that are

already imposed. These judgments are in the presumptive range.’ ” Thus, defendant

contends that the trial court erred because it did not expressly indicate that it would

consider those factors or look at the matter anew.

      Defendant relies on this Court’s decision in State v. Jarman, __ N.C. App. __,

__, 767 S.E.2d 370, 372 (2014), where a defendant likewise claimed that the trial court

had failed to conduct the resentencing hearing de novo. In Jarman, after being

sentenced based on a prior record level designation as a level IV offender, the

defendant “filed a motion for appropriate relief requesting a resentencing hearing to

correct his prior record level designation from a designation as a level IV offender to

a designation as a level III offender, and to reconsider his sentence . . . in light of the

correction to his prior record level determination.” Id. at __, 767 S.E.2d at 371.

Following his resentencing hearing, the defendant appealed to this Court, arguing



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that “the trial court made statements ‘indicating that it was not conducting a de novo

resentencing and did not understand that it should.’ ” Id. at __, 767 S.E.2d at 372.

      This Court disagreed and explained:

                    It has been established that each sentencing hearing
             in a particular case is a de novo proceeding. The judge
             hears the evidence without a jury, and the offender bears
             the burden of proving by a preponderance of the evidence
             that a mitigating factor exists. Although the judge must
             consider all statutory aggravating and mitigating factors
             that are supported by the evidence, the judge weighs the
             credibility of the evidence and determines by the
             preponderance of the evidence whether such factors exist.
             At each sentencing hearing, the trial court must make a
             new and fresh determination of the sufficiency of the
             evidence underlying each factor in aggravation and
             mitigation, and must find aggravating and mitigating
             factors without regard to the findings in the prior
             sentencing hearings.

                    However, the trial court need make findings of the
             aggravating and mitigating factors present in the offense
             only if, in its discretion, it departs from the presumptive
             range of sentences. When a trial court enters a sentence
             within the presumptive range, the court does not err by
             declining to formally find or act on a defendant’s proposed
             mitigating factors, regardless of whether evidence of their
             existence was uncontradicted and manifestly credible.

Id. at __, 767 S.E.2d at 372-73 (internal citations, quotation marks, and brackets

omitted).

      Like the Jarman Court, “we are not persuaded that the trial court’s . . .

remarks demonstrate that it did not understand its obligation to conduct a de novo

review of the evidence that was properly before it for consideration.” Id. at __, 767


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S.E.2d at 373 (internal quotation marks omitted). The State pointed out to the trial

court that defendant’s first-degree sex offense convictions in 11 CRS 226769, 11 CRS

226773, and 11 CRS 226774 had been vacated by this Court. The State requested

that defendant be sentenced to the same sentence length as he was previously since

the vacated convictions had previously just been consolidated with other charges that

still remained.   The court also heard from defendant and his defense counsel

submitted several mitigating factors for consideration, including: that defendant had

good character and reputation in his community prior to the time of his conviction;

that prior to his arrest he supported his family; that he has an extensive family

support system in Wake County; and that he had a positive employment history and

was gainfully employed prior to his arrest. The trial court heard all this evidence,

then informed defendant: “I’m going to enter three judgments consistent with the

Court of Appeals ruling or mandate in this case, and the net effect will be the same

as the sentences that are already imposed.          These judgments are within the

presumptive range.”

      The transcript shows that the trial court did consider defendant’s requests, and

that is all that the trial court is required to do. The trial court is not required to

change the sentences or make any particular findings about the defendant’s evidence

to demonstrate its consideration. See, e.g., State v. Dorton, 182 N.C. App. 34, 43, 641

S.E.2d 357, 363 (2007) (“[T]he trial court need make findings of the aggravating and



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mitigating factors present in the offense only if, in its discretion, it departs from the

presumptive range of sentences[.] As the trial court in the present case entered a

sentence within the presumptive range, the court did not err by declining to formally

find or act on defendant’s proposed mitigating factors, regardless whether evidence

of their existence was uncontradicted and manifestly credible.” (internal citation and

quotation marks omitted)). Moreover, “[a] trial court’s resentencing of a defendant to

the same sentence as a prior sentencing court is not ipso facto evidence of any failure

to exercise independent decision-making or conduct a de novo review.” State v.

Morston, 221 N.C. App. 464, 470, 728 S.E.2d 400, 406 (2012).

      Here, defendant’s offenses were consolidated for sentencing. Under N.C. Gen.

Stat. § 15A-1340.15(b) (2015), when an offender’s offenses are consolidated, “[t]he

judgment shall contain a sentence disposition specified for the class of offense and

prior record level of the most serious offense[.]” See also State v. Skipper, 214 N.C.

App. 556, 557-58, 715 S.E.2d 271, 273 (2011) (“[I]f the trial court consolidates offenses

into a single judgment, it is required by the Structured Sentencing Act to enter

judgment on a sentence for the most serious offense in a consolidated judgment.”).

Thus, since defendant’s offenses were consolidated and the most serious offense

remained, the trial court was well within its discretion to sentence defendant to the

same presumptive range sentence as was previously entered after conducting a new




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sentencing hearing. Accordingly, we conclude that the trial court in this case did

properly conduct the resentencing hearing de novo.

      III.   Arrested Judgment on Sex Offenses

      Defendant also argues that the trial court failed to comply with the mandate

of this Court to vacate three of the sex offense convictions when it instead wrote on

the judgment forms: “The Court arrested judgment on this count based on the

judgment from the Court of Appeals vacating this conviction.”

       In defendant’s prior appeal, State v. Spence, __ N.C. App. __, __, 764 S.E.2d

670, 681 (2014), this Court vacated defendant’s sex offense convictions in 11 CRS

226769, 11 CRS 226773, and 11 CRS 226774 and remanded to the trial court for a

new sentencing hearing.     At the resentencing hearing, the trial court informed

defendant that it would “enter three judgments consistent with the Court of Appeals

ruling or mandate in this case[.]” After the hearing, the trial court entered the

following note with its judgment in 11 CRS 226769:

             In accordance to the North Carolina Court of Appeals
             judgment dated 8 December 2014, the court will vacate the
             judgments that were entered for first degree sexual offense
             in case numbers 11CRS 226769, 11CRS 226773, and
             11CRS 226774. Therefore this court will have to conduct a
             new sentencing hearing.

In addition, the court included the following language in reference to the sex offense

conviction in 11 CRS 226769, 11 CRS 226773, 11 CRS 226774, and 11 CRS 226775:




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“The Court arrested judgment on this count based on the judgment from the Court of

Appeals vacating this conviction.”

      Defendant argues that the trial court should have vacated those judgments,

rather than arresting judgment. “While . . . in certain cases an arrest of judgment

does indeed have the effect of vacating the verdict, . . . in other situations an arrest

of judgment serves only to withhold judgment on a valid verdict which remains

intact.” State v. Pakulski, 326 N.C. 434, 439, 390 S.E.2d 129, 132 (1990). Here, this

Court mandated that the trial court vacate three of the sex offense convictions; it was

not ordered to arrest judgment and doing so is not proper in this case.

      It seems, however, that the trial court understood this Court’s mandate and

simply used incorrect language on its form, leading to this confusing result.

Essentially, this is a clerical error. Although the judgments state that the court

“arrested judgment” on these three offenses, it is evident from the resentencing

hearing transcript and the language used by the court itself that it was aware that

this Court had vacated those convictions. The court’s language, that it “arrested

judgment on this count based on the judgment from the Court of Appeals vacating

this conviction[,]” shows that it was aware of what this Court did. Furthermore, the

trial court did not include those convictions when it resentenced defendant based on

the remaining consolidated offenses. The court merely used improper wording on the

form when entering the new sentences on the judgment forms to address the charges



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that were removed. Nevertheless, this was done in error and must be corrected on

remand.

      In addition, the trial court arrested judgment on the sex offense conviction from

11 CRS 226775 as well, even though this Court did not mandate that the court vacate

this conviction. This was in error, as the prior mandate by this Court vacated only

the sex offense convictions in 11 CRS 226769, 11 CRS 226773, and 11 CRS 226774.

This Court left the sex offense conviction in 11 CRS 226775 intact. Thus, the trial

court both used incorrect language and erred in that it should not have included that

conviction in the vacated judgments. We, therefore, must vacate and remand simply

for the trial court to correct the clerical errors in the order to reflect the accurate

disposition of those offenses.

                                     Conclusion

      In conclusion, we hold that the trial court did conduct a proper de novo review

at defendant’s resentencing hearing.       We also find that while the trial court

understood that the sex offense convictions were vacated, the wrong language was

used on the judgment forms, and judgment on one sex offense count that was not

vacated by this Court previously was inadvertently “arrested.” Thus, we vacate those

judgments and remand so that the trial court can correct these errors consistent with

this opinion.

      VACATED AND REMANDED.



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Judges DIETZ and TYSON concur.




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