An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1056
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 4 March 2014


STATE OF NORTH CAROLINA


      v.                                      Pender County
                                              No. 08 CRS 3155, 52362
DANIEL LEE FENNELL,
     Defendant.


      Appeal by defendant from judgment entered 30 April 2012 by

Judge Arnold O. Jones in Pender County Superior Court.                    Heard in

the Court of Appeals 21 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Joseph L. Hyde, for the State

      Kevin P. Bradley for defendant.


      ELMORE, Judge.


      Daniel Lee Fennell (defendant) appeals the portion of the

trial court’s judgment ordering him to pay $7,120.75 in court

costs and fees.          After careful consideration, we remand for

further proceedings consistent with this opinion.

                                   I.     Background
                                                -2-
    On     3     June      2011,    defendant         was   convicted     of   (1)   felony

possession of a controlled substance with intent to manufacture,

sell,     and    deliver;          (2)    sale     of   a    schedule     II   controlled

substance;       and       (3)     delivery       of    a   schedule      II   controlled

substance.           He pled guilty to the charge of having attained

habitual felon status.               The trial court consolidated the charges

and sentenced defendant to a minimum of 150 months imprisonment

and a maximum of 189 months.                          The trial court also ordered

defendant to pay $720.00 in restitution as a condition of his

post-release          supervision          (original        judgment).          Defendant

appealed to this Court.                  We concluded that he received a fair

trial free of prejudicial error and affirmed the trial court’s

order of restitution.                However, due to errors in calculating

defendant’s prior record level, we remanded for resentencing.

See State v. Fennell, 2012 N.C. App. LEXIS 302, 6-8 (2012).

    On 30 March 2012, the trial court resentenced defendant as

a Class C, Level V, to a minimum term of 125 months and a

maximum term of 159 months imprisonment.                              Defendant was also

ordered     to       pay   a     total     of     $7,120.75      in    costs   and   fees:

$4,454.50       in    court      costs,    $2,606.25        in   attorney’s     fees,   and

$60.00     for       “miscellaneous”             (second     judgment).         Defendant

appealed.        We concluded that defendant’s fourteen prior record
                                              -3-
level points rendered him a Level IV offender, not a Level V,

for sentencing purposes and remanded for resentencing.                               State v.

Fennell, 2013 N.C. App. LEXIS 297, 3 (2013).

      On   30    April      2013,       Judge      Arnold   O.     Jones      (Judge   Jones)

presided        over        defendant’s            third     sentencing         proceeding.

Defendant was present in open court when Judge Jones sentenced

him within the presumptive range as a Class C, Level IV, to a

minimum term of 111 months and a maximum term of 143 months

imprisonment.            In       addition,         Judge    Jones       pronounced       that

defendant       was    to     pay      the    monies       imposed       in   the    original

sentence, which was $720.00 in restitution.

      That   same      day,       a    written      judgment     (third       judgment)    was

entered ordering defendant to pay costs and fees of $7,120.75—

the same monetary conditions imposed in the second judgment.

The   third judgment did not impose the $720.00 in restitution.

We note that the third judgment states on its face, “ORIGINALLY

SENTENCED 06/03/2011, PRIOR RESENTENCING 03/30/12.”                                 It is the

imposition      of     these      costs      and    fees    that    is    the   subject     of

defendant’s appeal.

                            II.       Imposition of Costs and Fees

      Defendant contends that the trial court erred in imposing

additional costs and fees outside of his physical presence in
                                          -4-
violation of his “right . . . to be present at the time sentence

is pronounced[.]”          State v. Bonds, 43 N.C. App. 467, 474, 259

S.E.2d 377, 381 (1979) (citation omitted).                   We agree.

      We   review     de   novo     the    question     of    whether    a   sentence

imposed on the defendant outside of his presence was proper.

See State v. Crumbley, 135 N.C. App. 59, 66–67, 519 S.E.2d 94,

99   (1999)     (conducting    a    de    novo    review     of   the    question    of

whether    a    sentence    imposed       on   the   defendant     outside     of   his

presence was proper).

      Here, defendant was sentenced according to the actual terms

of the third written judgment.                 See Abels v. Renfro Corp., 126

N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997) (“Announcement of

judgment       in   open   court        merely   constitutes       ‘rendering’      of

judgment,       not    entry       of     judgment.”)        (citation       omitted).

“Defendant had a right to be present at the time that sentence

was imposed.”         State v. Arrington, 215 N.C. App. 161, 166, 714

S.E.2d 777, 781 (2011);            see also State v. Pope, 257 N.C. 326,

330, 126 S.E.2d 126, 129 (1962) (“The right to be present at the

time sentence or judgment is pronounced is a common law right,

separate and apart from the constitutional or statutory right to

be present at the trial.”) (citation omitted).

               A convicted defendant is entitled to notice
               and an opportunity to be heard before a
                                         -5-
            valid judgment for costs can be entered.
            Costs are imposed only at sentencing, so any
            convicted indigent defendant is given notice
            . . . at the sentencing hearing and is also
            given an opportunity to be heard and object
            to the imposition of [the] cost[s].


State v. Webb, 358 N.C. 92, 101-02, 591 S.E.2d 505, 513 (2004)

(citation omitted).

      Defendant does not contest that he was in open court when

the trial judge pronounced the third judgment.                         He contends,

however,     that   because      Judge     Jones        rendered    oral         judgment

imposing the monies ordered in the original judgment, it was

error for the trial judge to deviate from that ruling and enter

the written judgment for $7,120.75.

      The   State   disagrees      based       on   this    Court’s       decision     in

Arrington, supra.        In Arrington, the trial judge pronounced, in

the   presence      of     the   defendant,         a      sentence        of     30-days

imprisonment, suspended for 18 months of supervised probation.

Arrington,    215   N.C.    App.    at    162,      714    S.E.2d     at    778.       In

addition, the written judgment ordered defendant to pay $287.50

in court costs and a $225.00 community service fee, which the

trial judge did not pronounce in open court.                        Id.         The trial

judge did not, in fact, render judgment on costs and fees at

sentencing.    On appeal, the defendant argued that the imposition
                                         -6-
of the costs and fees outside of his presence infringed on his

right to be present at sentencing.                We disagreed because (1) the

costs were statutorily mandated fees that were an integral part

of the sentence defendant heard imposed upon him in open court;

and (2) the imposition did not constitute additional punishment

and, therefore, was not a substantial change in his sentence.

Id. at 168, 714 S.E.2d at 782.

    Here,      Judge     Jones      rendered          judgment     in     open      court,

pronouncing:        “Give    [defendant]         credit    for     any     time     served

against that sentence.            And the original, if any, monies that

were ordered at the original sentencing, those same monetary

conditions,    if   any,    shall       apply    in    this     sentence       as   well.”

Judge Jones then asked, “[a]nything else?”                       Defendant answered,

“[n]o, sir.”

    Unlike     Arrington,         the   trial     judge    in     the     instant        case

pronounced    his    decision      as    to     the    monetary       portion       of   the

judgment in defendant’s presence.                     By doing so,         Judge Jones

placed defendant on notice of his intent to adopt the terms of

Judge   Russell     Lanier’s       original      judgment,        which       included     a

waiver of costs and fees, except for the $720.00 restitution.

However,     defendant      did    not    have        notice     of     the     $7,120.75

judgment.     Further, when Judge Jones asked, “anything else?” at
                                        -7-
the hearing, defendant was afforded the opportunity to be heard

and object to those matters for which he was on notice, namely

his active sentence and the imposition of restitution.                          Thus,

defendant was never afforded notice or the opportunity to be

heard and object to the terms of the written judgment.

    Should Judge Jones simply have rendered judgment sentencing

defendant as a Level IV, to 111-143 months imprisonment—without

pronouncing his intent to reinstate the monetary terms of the

original    order–our       decision   in     Arrington    would   control.       We

recognize    that     the    imposition       of   costs     and   fees   did    not

constitute     a     substantial       change      in   defendant’s       sentence.

Nonetheless,       under    these   particular      facts,    we   conclude     that

defendant was denied his right to be present when his sentence

was pronounced.        Accordingly, we remand the third judgment to

Pender County Superior Court for a determination of what costs

and fees, if any, to impose after defendant is afforded notice

and an opportunity to be heard.

    Remanded.

    Judges McGEE and HUNTER, Robert C., concur.

    Report per Rule 30(e).
