               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-271

                              Filed: 6 September 2016

Buncombe County, No. 11 CRS 64896, 15 CRS 639

STATE OF NORTH CAROLINA

             v.

CHRISTINA RENEE ALLEN


      Appeal by defendant from judgment entered 11 August 2015 by Judge Alan Z.

Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 24

August 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Tracy Nayer, for
      the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
      Grant, for defendant-appellant.


      TYSON, Judge.


      Christina Renee Allen (“Defendant”) appeals from judgment entered after she

pled guilty to felony failure to appear and misdemeanor obtaining a controlled

substance by fraud. We remand for correction of the clerical error in the original

written order to reflect Defendant’s plea agreement. We vacate the modified order as

it concerns the error contained within the original written order.

                               I. Factual Background
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                                   Opinion of the Court



      On 9 July 2012, Defendant was indicted on one felony count of obtaining a

controlled substance by fraud. She failed to appear in court as scheduled on 10

September 2012 and was arrested approximately two years later.

      On 11 August 2015, Defendant pled guilty pursuant to a plea agreement to one

count of misdemeanor obtaining a controlled substance by fraud and one count of

felonious failure to appear. The plea agreement provided:

             The State agrees to a community punishment. The
             defendant shall be placed on supervised probation, the
             length of which will be determined by the Court. The
             defendant shall submit to a period or periods of
             confinement in the local confinement facility pursuant to
             N.C.G.S. 15A-1343(a1)(3), with the scheduling of said
             periods of confinement to be in the discretion of the
             probation officer. All other terms and conditions of
             probation shall be in the discretion of the Court.

(emphasis supplied).

      At the beginning of the hearing, the trial court restated that “the plea

arrangement is that [Defendant] will plead to community punishment” and asked the

prosecutor to “educate [the court] a little bit” on the requirements under N.C. Gen.

Stat. § 15A-1343(a1)(3) and the role of the probation officer. At that point, the

prosecutor stated that the statute allows “a period or periods of confinement in a local

confinement facility for a total of no more than six days per month during any three

separate months during the period of probation” and that “the six days per month




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confinement provided for in this subdivision may only be imposed as two- or three-

day consecutive periods.”

      Later during the hearing, Defendant stipulated to the factual basis supporting

her plea agreement and to the contents of the sentencing worksheet. After the facts

supporting the plea agreement were summarized, the trial court again reiterated the

requirements of jail confinement under “community punishment” to ensure its

understanding. The trial court stated, “I know the Court can in a community or

intermediate punishment order jail confinement . . . to two or three days, no more

than six days per month for any three separate months.”

      The trial court then asked the prosecutor “to educate [the court] again” and

requested clarification regarding the prosecution’s request for periods of confinement.

The prosecutor requested specific periods of confinement “to be imposed at the

discretion of the probation officer,” which was consistent with the plea agreement.

Defendant’s counsel further requested that the confinement be “no more than a

couple weekends in this particular situation.”

      The trial court accepted Defendant’s plea agreement and sentenced Defendant

to “community punishment of between 6 and 17 months and the defendant will serve

ten days in the local jail at the discretion of the probation officer within the next 60

days.” (emphasis supplied). However, when the trial court’s AOC-CR-603C form

order was reduced to writing, Defendant’s ten-day sentence was included on page two



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                                   Opinion of the Court



as “Special Probation – G.S. 15A-1351” under “Intermediate Punishments.” It was

not included under “Community and Intermediate Probation Conditions – G.S. 15A-

1343(a1).” This occurred despite the fact that at the top of page one of the form, the

court indicated that it was sentencing Defendant to “community” punishment. The

written order was filed 11 August 2015. Defendant filed her notice of appeal on 20

August 2015.

      Pursuant to the original written order’s inclusion of “intermediate

punishment,” Judge Marvin P. Pope, Jr. signed a modified order requiring Defendant

serve her ten-day sentence from 1 September 2015 to 10 September 2015. Like the

original written order, the modified order indicated that it was modifying “Special

Probation – G.S. 15A-1344(e)” under the “Intermediate Punishments – Contempt”

section of the form.

      Although the modified order was signed the same day as Defendant had filed

notice of her appeal, it was not filed until 28 August 2015. The record does not

indicate whether the courtroom clerk made any notation of the rendering of the trial

court’s modified order in the court minutes kept for 20 August 2015.

      Along with her brief, Defendant contemporaneously filed a Motion for

Appropriate Relief and requested this Court to vacate the modified order based on

the trial court’s lack of subject matter jurisdiction to enter the modified order.

                                       II. Issues



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      Defendant alleges the trial court erred in the original written order by

sentencing Defendant to intermediate punishment in contravention of the accepted

plea agreement.     Defendant also argues the trial court lacked subject matter

jurisdiction to enter the modified order after her appeal had been entered. She has

filed a Motion for Appropriate Relief requesting that the modified order be vacated

on that ground.

                               III. Standard of Review

      “In North Carolina, a defendant’s right to appeal in a criminal proceeding is

purely a creation of state statute.” State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d

867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). N.C. Gen. Stat. §

15A-1444 (2015) governs a defendant’s right to appeal from judgment entered upon a

guilty plea and limits it to specific circumstances. This includes when a sentence

“[c]ontains a type of sentence disposition that is not authorized by G.S. 15A-1340.17

or G.S. 15A-1340.23 for the defendant’s class of offense and prior record or conviction

level.” N.C. Gen. Stat. § 15A-1444(a2)(2) (2015).

      Generally, “[w]hen a defendant assigns error to the sentence imposed by the

trial court our standard of review is whether [the] sentence is supported by evidence

introduced at the trial and sentencing hearing.” State v. Chivers, 180 N.C. App. 275,

278, 636 S.E.2d 590, 593 (2006) (internal quotation and citation omitted), disc. review

denied, 361 N.C. 222, 642 S.E.2d 709 (2007); see N.C. Gen. Stat. § 15A-1444(a1)(2015).



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                                  Opinion of the Court



When this Court is confronted with statutory errors regarding sentencing issues,

such errors “are questions of law, and as such, are reviewed de novo.” State v. Mackey,

209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011) (citations omitted).

      If the alleged sentencing error is only clerical in nature, “it is appropriate to

remand the case to the trial court for correction because of the importance that the

record speak the truth.” State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696-

97 (2008) (internal quotations and citation omitted). Rule 60 of the North Carolina

Rules of Civil Procedure provides:

             Clerical mistakes in judgments, orders or other parts of the
             record and errors therein arising from oversight or
             omission may be corrected by the judge at any time on his
             own initiative or on the motion of any party and after such
             notice, if any, as the judge orders. During the pendency of
             an appeal, such mistakes may be so corrected before the
             appeal is docketed in the appellate division, and thereafter
             while the appeal is pending may be so corrected with leave
             of the appellate division.

N.C. Gen. Stat. § 1A-1, Rule 60(a) (2015). A clerical error is defined as, “[a]n error

resulting from a minor mistake or inadvertence, esp[ecially] in writing or copying

something on the record, and not from judicial reasoning or determination.” State v.

Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quotation marks and

citation omitted).

                             IV. Original Written Order




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                                  Opinion of the Court



      “It is the responsibility of the trial judge to accept or reject a tendered plea

negotiated between the district attorney and defendant.” In re Fuller, 345 N.C. 157,

160, 478 S.E.2d 641, 643 (1996); see State v. Collins, 300 N.C. 142, 149, 265 S.E.2d

172, 176 (1980) (holding a plea agreement involving a recommended sentence must

be approved by the trial judge before it becomes effective). “Before accepting a plea

pursuant to a plea arrangement in which the prosecutor has agreed to recommend a

particular sentence, the judge must advise the parties whether he approves the

arrangement and will dispose of the case accordingly.” N.C. Gen. Stat. § 15A-1023(b)

(2015).

      In 2011, the General Assembly created new “community punishment”

conditions a trial court may order during sentencing. See N.C. Gen. Stat. § 15A-

1343(a1) (2015). Community punishment is defined by statute as “[a] sentence in a

criminal case that does not include an active punishment or assignment to a drug

treatment court, or special probation as defined in G.S. 15A-1351(a). It may include

any one or more of the conditions set forth in G.S. 15A-1343(a1).” N.C. Gen. Stat. §

15A-1340.11(2). One such condition is:

             Submission to a period or periods of confinement in a local
             confinement facility for a total of no more than six days per
             month during any three separate months during the period
             of probation. The six days per month confinement provided
             for in this subdivision may only be imposed as two-day or
             three-day consecutive periods. When a defendant is on
             probation for multiple judgments, confinement periods
             imposed under this subdivision shall run concurrently and


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                                    Opinion of the Court



             may total no more than six days per month.

N.C. Gen. Stat. § 15A-1343(a1)(3) (2015).

      Here, the trial court accepted Defendant’s plea agreement in which the parties

had agreed to “community punishment,” including a period or periods of confinement

pursuant to N.C. Gen. Stat. § 15A-1343(a1)(3). Based upon the agreement, the trial

court required Defendant to “serve ten days in the local jail at the discretion of the

probation officer within the next 60 days.” Although this ten-day sentence could have

been served pursuant to the requirements of “community punishment” under N.C.

Gen. Stat. 15A-1343(a1)(3), the order reducing the trial court’s statements to writing

incorrectly indicated that the sentence was “Special Probation – G.S. 15A-1351”

under “Intermediate Punishment.”

      Defendant argues that the original written order’s classification of the ten-day

sentence was unlawful pursuant to N.C. Gen. Stat. § 15A-1444(a2)(2) and this Court

should vacate the judgment and remand for resentencing. The State contends the

order simply contained an inadvertent clerical error made when the judgment was

reduced to writing. The State asserts that the appropriate remedy is to remand for

correction of the clerical error with instruction that the trial court indicate the periods

of confinement under the appropriate section of the form.

      The record before this Court shows the mistake in sentencing was purely a

clerical error on the original written order. First, the trial court and prosecutor



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                                  Opinion of the Court



clearly stated at the beginning of the hearing that the plea agreement contained

“community punishment.” Second, the trial court indicated at the hearing that it was

sentencing Defendant to community punishment and correctly stated the

requirements for the periods of confinement as being “two or three days, no more than

six days per month for any three separate months.” Third, the top of the first page of

the original written order indicated that the trial court sentenced Defendant to

“community punishment,” not intermediate.

      Finally, although the sentence was under “Intermediate Punishment” on page

two of the form, the ten days could have been served in compliance with the

requirements of N.C. Gen. Stat. § 15A-1343(a1)(3). For example, Defendant could

have served five days over two weekends each month during the 60 days following

the order.

      Taken together, these facts demonstrate the entry of Defendant’s sentence

under “Intermediate Punishment” was a clerical error. We remand to the trial court

for correction of the clerical error regarding Defendant’s sentence pursuant to her

plea agreement. See Smith, 188 N.C. App. at 845, 656 S.E.2d at 696-97.

                                 V. Modified Order

      The modified order sentenced Defendant to ten consecutive days of

confinement under the “Intermediate Punishments – Contempt” portion of the form.

This sentence directly conflicts with the requirements found in N.C. Gen. Stat. § 15A-



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                                   Opinion of the Court



1343(a1)(3), as agreed to by the parties in the plea agreement, and accepted by the

sentencing judge. The State, in its brief, admits that “the probation modification order

carried forward, and essentially repeated the clerical error reflected on the judgement

when it was reduced to writing.” Since the modified order was made pursuant to the

clerical error contained in the original written order and we remand the original

written order for correction of the error, the modified order imposing a sentence not

allowed under community punishment is vacated.

                                    VI. Conclusion

      The classification of Defendant’s ten-day sentence in the original written

order as “Intermediate Punishment” was an inadvertent clerical error made when

the order was reduced to writing. We remand for correction of the clerical error in

the original written order to be consistent with Defendant’s plea agreement with

community punishment. We vacate the modified order as it was made pursuant to

the clerical error contained within the original written order. Defendant’s motion

for appropriate relief is dismissed as moot.

      REMANDED FOR CORRECTION OF CLERICAL ERROR IN PART;
      VACATED IN PART.

      Judges BRYANT and ZACHARY concur.




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