               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1280

                                 Filed: 6 June 2017

Wilson County, No. 13 CRS 3256

STATE OF NORTH CAROLINA, Plaintiff,

              v.

ANGELO LINDOVIS JONES, Defendant.


        Appeal by defendant from judgment entered 23 August 2016 by Judge Milton

F. Fitch, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 1 May

2017.


        Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer,
        for the State.

        Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for
        defendant-appellant.


        ZACHARY, Judge.


        Angelo Lindovis Jones (defendant) appeals from a judgment entered upon his

plea of guilty to attempted robbery with a dangerous weapon. Defendant has filed a

petition for issuance of a writ of certiorari to obtain review of the sentencing

proceeding, and we elect to grant his petition. On appeal, defendant argues that he is

entitled to a new sentencing hearing, on the grounds that his counsel informed the

trial court that defendant wanted to address the court before it imposed judgment,
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but the trial court denied him the opportunity to speak. We agree, and conclude that

the judgment must be vacated and remanded for a new sentencing hearing.

                          I. Factual and Procedural Background

      On 27 November 2013, a warrant was issued for defendant’s arrest, charging

him with having committed the offenses of first-degree murder, first-degree burglary,

and armed robbery almost three years earlier, on 4 January 2011. Defendant was

indicted for these offenses on 7 July 2014. On 30 March 2016, defendant pleaded

guilty to attempted armed robbery, pursuant to a plea agreement. The terms of the

plea arrangement were that defendant would plead guilty to the charge of attempted

armed robbery and would provide truthful testimony against his codefendants if

requested to do so by the State; in exchange, the State would dismiss the charges of

first-degree murder and first-degree burglary. The plea bargain did not include any

agreement on the sentence that defendant would receive. Defendant’s sentencing

was continued until 22 August 2016.

      On 23 August 2016, defendant appeared before the trial court for sentencing.

The sentencing hearing is discussed in greater detail below. Briefly, at the outset of

the hearing, defendant’s counsel informed the court that counsel would argue on

defendant’s behalf and that defendant wished to “address the Court at the

appropriate time,” to which the trial court agreed. Thereafter, defendant’s counsel

advised the court of aspects of defendant’s personal history that might be pertinent



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to the court’s sentencing decision. Defense counsel also presented testimony from a

lead investigator of the underlying offenses, who spoke on defendant’s behalf about

the assistance that defendant had provided, which had enabled law enforcement

officers to solve the case. After the detective finished, the trial court announced that

it was “ready to give the judgment” and entered judgment without allowing defendant

to address the court. Defendant was sentenced to a term of 128 to 163 months’

imprisonment and was given credit for 1001 days that he had spent in confinement

awaiting trial.

      On 24 August 2016, defendant sent the following handwritten letter to the

Clerk of Court:

             August 24, 2016

             To the Clerk of Court, Superior

             I was sentence[d] August 23 2016 in Superior Court by [the
             trial court], to serve 128 months to 163.
             I would like to put the court on notice that I am appealing
             the sentencing part of the sentence, not the guilty plea. I
             would like to site [sic] that [the court] was rude, bias, and
             personal in his rulings.
             My lawyer Anna Kirby, the Assist. D.A. Joel Stadiem, and
             lead Detective Kearney, all wanted to speak on my behalf.
             But [the judge] did not allow anyone to be heard to where it
             wouldn’t make a differen[ce].
             I also wanted to address the courts but wasn’t given a
             chance. I really feel like my constitutional rights [were]
             violated for not allowing my attorney or myself, or people on
             my behalf to stand and address the court.
             I feel that I should have been sentenced in the mitigated
             range instead of the presumptive. Angelo Jones


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      Appellate counsel was appointed for defendant on 2 September 2016. On 19

January 2017, defendant’s appellate counsel filed a petition in which counsel (1)

acknowledged that defendant’s pro se letter to the Clerk of Court stating his intention

to “put the Court on notice” of his appeal did not comply with the relevant rules of

appellate procedure, and (2) sought issuance of a writ of certiorari in order to obtain

review. On 15 February 2017, the State filed a response opposing the issuance of the

writ, and a motion to dismiss defendant’s appeal. Defendant filed a reply to the

State’s motions on 24 February 2017.

                 II. Defendant’s Right to Seek Review by Writ of Certiorari

      Preliminarily, we address defendant’s right to seek the issuance of a writ of

certiorari in order to obtain appellate review of the sentencing proceeding conducted

upon his entry of a plea of guilty to the charge of attempted armed robbery. We

conclude that this Court has the authority to grant defendant’s petition asking us to

issue a writ of certiorari, and we grant his petition.

      A criminal defendant’s right to appeal following his plea of guilty is limited by

N.C. Gen. Stat. § 15A-1444 (2015), which provides in relevant part that:

             (a1) A defendant who has . . . 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 . . . sentencing hearing only if the
             minimum sentence of imprisonment does not fall within the
             presumptive range[.] . . . Otherwise, the defendant is not
             entitled to appeal this issue as a matter of right but may


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             petition the appellate division for review of this issue by
             writ of certiorari.

             (a2) A defendant who has entered a plea of guilty or no
             contest to a felony or misdemeanor in superior court is
             entitled to appeal as a matter of right the issue of whether
             the sentence imposed: (1) Results from an incorrect finding
             of the defendant’s prior record level[.] . . .; (2) Contains a
             type of sentence disposition that is not authorized . . . or;
             (3) Contains a term of imprisonment that is for a duration
             not authorized[.] . . .

                                           ...

             (e) Except as provided in subsections (a1) and (a2) of this
             section . . . the defendant is not entitled to appellate review
             as a matter of right when he has entered a plea of guilty or
             no contest to a criminal charge in the superior court, but he
             may petition the appellate division for review by writ of
             certiorari. . . .

                                           ...

             (g) Review by writ of certiorari is available when provided
             for by this Chapter, by other rules of law, or by rule of the
             appellate division.

Thus, Gen. Stat. § 15A-1444(e) explicitly grants defendant the right to “petition the

appellate division for review by writ of certiorari.”

      We next consider our jurisdiction to issue a writ of certiorari in order to review

a defendant’s appeal following entry of a plea of guilty. “The jurisdiction of the Court

of Appeals is established in the North Carolina Constitution: ‘The Court of Appeals

shall have such appellate jurisdiction as the General Assembly may prescribe.’ N.C.

Const. art. IV, § 12(2).” State v. Stubbs, 368 N.C. 40, 42, 770 S.E.2d 74, 75 (2015). By


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enacting N.C. Gen. Stat. § 7A-32(c) (2015), our General Assembly expressly granted

the Court of Appeals jurisdiction to issue a writ of certiorari:

              (c) The Court of Appeals has jurisdiction, exercisable by one
              judge or by such number of judges as the Supreme Court
              may by rule provide, to issue the prerogative writs,
              including mandamus, prohibition, certiorari, and
              supersedeas, in aid of its own jurisdiction, or to supervise
              and control the proceedings of any of the trial courts of the
              General Court of Justice[.] . . . The practice and procedure
              shall be as provided by statute or rule of the Supreme Court,
              or, in the absence of statute or rule, according to the practice
              and procedure of the common law.

       In this case, although defendant’s appeal does not raise any of the issues for

which an appeal of right is afforded, N.C. Gen. Stat. § 15A-1444(e) allows him to seek

review by petitioning for issuance of a writ of certiorari. “Accordingly, given that our

state constitution authorizes the General Assembly to define the jurisdiction of the

Court of Appeals, and given that the General Assembly has given that court broad

powers ‘to supervise and control the proceedings of any of the trial courts of the

General Court of Justice,’ id. § 7A-32(c),” Stubbs, 368 N.C. at 43, 770 S.E.2d at 76,

and given that “the General Assembly has placed no limiting language in subsection

15A-[1444(e),]” id., we conclude that this Court has jurisdiction to grant defendant’s

petition for issuance of a writ of certiorari.

       In reaching this conclusion, we are aware that N.C. R. App. P. 21(a)(1) (2015)

of our Rules of Appellate Procedure provides that:




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             (a)(1) The writ of certiorari may be issued in appropriate
             circumstances by either appellate court to permit review of
             the judgments and orders of trial tribunals when the right
             to prosecute an appeal has been lost by failure to take timely
             action, or when no right of appeal from an interlocutory
             order exists, or for review pursuant to N.C.G.S. § 15A-
             1422(c)(3) of an order of the trial court ruling on a motion
             for appropriate relief.

      In this case, defendant’s application for issuance of a writ of certiorari does not

allege that his right to an appeal was lost by failure to take timely action, that he

seeks to appeal from an interlocutory order, or that he is appealing from an order of

the trial court ruling on a motion for appropriate relief. Thus, defendant’s petition

for a writ of certiorari, although authorized by N.C. Gen. Stat. § 15A-1444(e), is not

based upon the criteria specified in Appellate Rule 21. However, our Supreme Court

has addressed the tension between a statute that grants a right to seek review by

certiorari and the apparent limitations that Appellate Rule 21 places on that right.

      In Stubbs, the State sought review of a trial court’s ruling that granted a

defendant’s motion for appropriate relief. N.C. Gen. Stat. § 15A-1422(c)(3) allows

review of a court’s ruling on a motion for appropriate relief “[i]f the time for appeal

has expired and no appeal is pending, by writ of certiorari.” This statute gave the

State a right to seek review by writ of certiorari. However, at the time that Stubbs

was decided, Rule 21(a)(1) specified that a writ of certiorari could be issued to obtain

review of a trial court’s denial of a motion for appropriate relief. (Rule 21 was later

amended to allow review by writ of certiorari of any “ruling” on a motion for


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appropriate relief.) As in the instant case, a statute provided the right to seek

certiorari to obtain review of a ruling that did not arise from any of the procedural

contexts specified in Rule 21. Our Supreme Court held as follows:

             As noted by the parties and the Court of Appeals, the Rules
             of Appellate Procedure are also in play here. See [N.C. Gen.
             Stat. § 7A-32(c)] (“The practice and procedure shall be as
             provided by statute or rule of the Supreme Court, or, in the
             absence of statute or rule, according to the practice and
             procedure of the common law.”). Appellate Rule 21 states in
             relevant part:

                    . . . “The writ of certiorari may be issued in
                    appropriate circumstances by either appellate court
                    to permit review of the judgments and orders of trial
                    tribunals when the right to prosecute an appeal has
                    been lost by failure to take timely action, or when no
                    right of appeal from an interlocutory order exists, or
                    for review pursuant to N.C.G.S. § 15A-1422(c)(3) of
                    an order of the trial court denying a motion for
                    appropriate relief.

             N.C. R. App. P. 21(a)(1)[.] . . . Defendant argues that because
             of this Rule, the State may not appeal an order of a trial
             court granting a motion for appropriate relief. We disagree.
             As stated plainly in Rule 1 of the Rules of Appellate
             Procedure, “[t]hese rules shall not be construed to extend or
             limit the jurisdiction of the courts of the appellate division
             as that is established by law.” Id. at R. 1(c). Therefore, while
             Rule 21 might appear at first glance to limit the jurisdiction
             of the Court of Appeals, the Rules cannot take away
             jurisdiction given to that court by the General Assembly in
             accordance with the North Carolina Constitution.

Stubbs at 43-44, 770 S.E.2d at 76. The language of the opinion in Stubbs does not

indicate that its holding was based in any way upon the specific substantive or



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procedural aspects of a motion for appropriate relief, or that its holding was limited

to appeals from a trial court’s ruling on a motion for appropriate relief. Indeed,

Stubbs’ central holding, that “while Rule 21 might appear at first glance to limit the

jurisdiction of the Court of Appeals, the Rules cannot take away jurisdiction given to

that court by the General Assembly[,]” constitutes a general ruling that a statutory

right to seek certiorari may not be limited or restricted by the provisions of Appellate

Rule 21. This Court has held, upon review of Stubbs:

             In other words, because the state constitution gives the
             General Assembly the power to define the jurisdiction of the
             Court of Appeals, only the General Assembly can take away
             the jurisdiction that it has conferred. Subsection 7A-32(c)
             thus creates a default rule that the Court of Appeals has
             jurisdiction to review a lower court judgment by writ of
             certiorari. The default rule will control unless a more
             specific statute restricts jurisdiction in the particular class
             of cases at issue.

State v. Thomsen, __ N.C. App. __, __, 789 S.E.2d 639, 642-43 (2016).

      Appellate cases decided after Stubbs have, almost without exception, held that

a defendant’s statutory right to seek issuance of a writ of certiorari is not abridged by

Appellate Rule 21. See, e.g., Thomsen, supra. We are aware that in two instances

this Court has held, notwithstanding the holding of Stubbs, that we are without

authority to issue a writ of certiorari in order to review a defendant’s appeal following

his entry of a plea of guilty. See State v. Biddix, __ N.C. App. __, 780 S.E.2d 863

(2015), and State v. Ledbetter, __ N.C. App. __, __,, 779 S.E.2d 164, 171 (2015) (holding



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that “Defendant’s petition to issue a writ of certiorari does not assert grounds which

are included in or permitted by Appellate Rule 21(a)(1)”), remanded for

reconsideration in light of Stubbs and Thomsen, __ N.C. __, 793 S.E.2d 216 (2016)

(unpublished), on remand at __ N.C. App. __, __, 794 S.E.2d 551, 554 (2016)

(“Defendant’s petition, purportedly under N.C. Gen. Stat. § 1444(e), does not invoke

any of the three grounds set forth in Appellate Rule 21[.]”), stay granted, __ N.C. __,

794 S.E.2d 527 (2016) (unpublished). We are, of course, also cognizant that “[w]here

a panel of the Court of Appeals has decided the same issue, albeit in a different case,

a subsequent panel of the same court is bound by that precedent, unless it has been

overturned by a higher court.” In re Appeal of Civil Penalty, 324 N.C. 373, 384, 379

S.E.2d 30, 37 (1989). Thus, as a general rule, we are bound by prior opinions of this

Court.

         “However, this Court has no authority to reverse existing Supreme Court

precedent.” Respess v. Respess, 232 N.C. App. 611, 625, 754 S.E.2d 691, 701 (2014).

“[I]t is elementary that we are bound by the rulings of our Supreme Court.” Mahoney

v. Ronnie’s Rd. Serv., 122 N.C. App. 150, 153, 468 S.E.2d 279, 281 (1996), aff’d per

curiam, 345 N.C. 631, 481 S.E.2d 85 (1997). We have examined both Biddix and

Ledbetter and conclude that these cases fail to follow the binding precedent

established by Stubbs, and as a result, do not control the outcome in the present case.

In this case, as in Stubbs, although defendant has a statutory right to apply for a writ



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of certiorari to obtain review of his sentence, Appellate Rule 21 does not include this

circumstance among its enumerated bases for issuance of the writ. We find the

present case to be functionally and analytically indistinguishable from that of Stubbs

and hold that, pursuant to the opinion of our Supreme Court in Stubbs, this Court

has jurisdiction to grant defendant’s petition for a writ of certiorari. In the exercise

of our discretion, we choose to grant his petition.

                III. Defendant’s Right to Allocute at the Sentencing Hearing

      At the outset of defendant’s sentencing hearing, his counsel informed the trial

court that defendant wished to speak to the court prior to entry of judgment, and the

court acknowledged defendant’s request.        However, the trial court subsequently

terminated the sentencing hearing without affording defendant an opportunity to be

heard. On appeal, defendant contends that he is entitled to a new sentencing hearing

on the grounds that the trial court violated his right to speak on his own behalf at

sentencing. For the reasons that follow, we agree with defendant.

      N.C. Gen. Stat. § 15A-1334(b) (2015) provides in relevant part that “[t]he

defendant at the hearing may make a statement in his own behalf.” This Court has

previously noted that “[a]llocution, or a defendant’s right to make a statement in his

own behalf before the pronouncement of a sentence, was a right granted a defendant

at common law.” State v. Miller, 137 N.C. App. 450, 460, 528 S.E.2d 626, 632 (2000).

The United States Supreme Court has also emphasized the significance of this right,



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observing that “[t]he most persuasive counsel may not be able to speak for a

defendant as the defendant might, with halting eloquence, speak for himself.” Green

v. United States, 365 U.S. 301, 304, 5 L. Ed. 2d 670, 673 (1961).

      Our appellate cases have held that where defense counsel speaks on the

defendant’s behalf and the record does not indicate that the defendant asked to be

heard, the statute does not require the court to address the defendant and personally

invite him or her to make a statement. “[N.C. Gen. Stat. §] 15A-1334, while

permitting a defendant to speak at the sentencing hearing, does not require the trial

court to personally address the defendant and ask him if he wishes to make a

statement in his own behalf.” State v. McRae, 70 N.C. App. 779, 781, 320 S.E.2d 914,

915 (1984) (citation omitted).

      However, a trial court’s denial of a defendant’s request to make a statement

prior to being sentenced is reversible error that requires the reviewing court to vacate

the defendant’s sentence and remand for a new sentencing hearing. See Miller, 137

N.C. App. at 461, 528 S.E.2d at 632 (“N.C. Gen. Stat. § 15A-1334(b) expressly gives a

non-capital defendant the right to make a statement in his own behalf' at his

sentencing hearing if the defendant requests to do so prior to the pronouncement of

sentence. Because the trial court failed to do so, we must remand these cases for a

new sentencing hearing.”) (internal quotation omitted).




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      Moreover, in certain factual circumstances, we have held that a trial court

effectively denied a defendant the right to be heard prior to sentencing even when the

court did not explicitly forbid the defendant to speak. For example, in State v. Griffin,

109 N.C. App. 131, 132, 425 S.E.2d 722, 722 (1993), the trial court commented that it

“would be a big mistake” to allow the defendant to speak at sentencing. On appeal,

we held that “defense counsel could have reasonably interpreted the trial judge’s

statement to mean that the defendant would receive a longer sentence if he testified.

Accordingly, we find that the defendant’s right to testify under G.S. § 15A-1334(b)

was effectively chilled by the trial judge’s comment.” Griffin, 109 N.C. App. at 133,

425 S.E.2d at 723. We vacated the defendant’s sentence and remanded for a new

sentencing hearing. Similarly, in McRae, the trial court informed defendant’s counsel

in advance of the sentencing hearing that the court intended to impose the same

sentence on defendant as it had previously imposed on a codefendant. We held that

the defendant was entitled to a new sentencing hearing:

             [W]e are not dealing here with the mere failure to issue an
             invitation to defendant to speak personally on his own
             behalf prior to sentencing. It is apparent from the facts that
             the trial court had decided the defendant’s sentence a
             month prior to the date of the sentencing hearing held for
             defendant. By his actions the trial judge foreclosed any real
             opportunity for defendant or his counsel to present
             testimony relevant to the sentencing hearing[.] . . . Where
             the trial judge may have been uninformed as to relevant
             facts because of his failure to afford the defendant a proper
             sentencing hearing . . . we are restrained from saying
             defendant has not been prejudiced.


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McRae, 70 N.C. App. at 781, 320 S.E.2d at 915-16 (citation omitted).

      Resolution of this issue requires examination of the transcript of the

sentencing proceeding. At the outset of the hearing, defense counsel informed the

trial court that defendant wanted the opportunity to address the court:

             DEFENSE COUNSEL: Yes, Your Honor. May it please the
             Court. Mr. Jones is 56 years old. I do want to tell you a little
             bit about his background. As you see there’s no agreement
             with regard to sentencing. I would like to tell the Court a
             little bit about him and then he’d like to address the Court
             at the appropriate time, Your Honor.

             THE COURT: All right.

             (emphasis added).

      Defendant’s counsel then spoke to the trial court about defendant’s

background, including his prior criminal record, employment history, and family

background. When defendant’s counsel informed the court that defendant had

behaved well during the more than 1000 days he had been incarcerated prior to

sentencing, the trial court interrupted and the following discussion ensued:

             DEFENSE COUNSEL: . . . He’s cooperated throughout
             with law enforcement. But everyone I [have] spoken to at
             the jail, everytime I [have] gone over to the jail, everybody
             knows Angelo, several of the jailers have said he’s the best
             inmate we ever had, wished everybody was like him. . . .

             THE COURT: So what you’re telling me is he ought to stay
             in jail for the rest of his life --

             DEFENSE COUNSEL: No, Your Honor.


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THE COURT: -- because when he’s out --

DEFENSE COUNSEL: No, Your Honor.

THE COURT: -- he raise[s] havoc, possessing stolen
firearm, possess stolen firearm. It just goes on and on.

DEFENSE COUNSEL: . . . [T]hat’s far from what I’m telling
you and what I want the Court to infer. I do want you to
take into consideration also the following things, of course
with regard to the facts of the case, as you know he was not
one of the persons who actually went to the door of the
house. He tells me he did not have any idea there would be
a gun much less a murder --

THE COURT: How do you go rob people if you don’t have a
weapon?

DEFENSE COUNSEL: I understand, Your Honor, but he
did not have a weapon and tells me he did not know Percible
Pettiford-Bynum had a weapon either --

THE COURT: Two or more people joined together acting in
concert present therewith --

DEFENSE COUNSEL: We’ve talked about acting in
concert.

THE COURT: Felony murder.

DEFENSE COUNSEL: Yes, sir.

THE COURT: Listen, this man is not that innocent. He
knows exactly what’s going on.

DEFENSE COUNSEL: I’m not trying to suggest that to the
Court, Your Honor, nor is he.

THE COURT: Is he ready for his time?


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             DEFENSE COUNSEL: Is it going to do me any good to tell
             you a little bit more about him?

             THE COURT: You can tell me whatever you want to tell me.

             (emphasis added).

      The transcript excerpt suggests both that the trial court held a negative

opinion of defendant (“this man is not that innocent”) and also that the court had

decided on the sentence to impose (“Is he ready for his time?”) prior to hearing from

either the prosecutor or defendant. Thereafter, defense counsel offered testimony

from a lead detective in the case, who spoke on defendant’s behalf:

             DETECTIVE KEARNEY: Your Honor, I was involved in
             this case since day one . . . and we were able to come [up]
             with no leads on this for more than a year, more than two
             years, until . . . we were able to go to Mr. Jones and ever
             since day one he come clean with us and he provided us with
             our probable cause that did lead us to breaking this case
             wide open. Without his involvement or without him telling
             us the truth that we could corroborate, justice in this case
             would be delayed, possibly never even come to fruition. So
             we are grateful for his involvement. I’m aware of his past,
             but everytime we’ve come into contact with him and
             interviewed him on multiple occasions, myself, Detective
             Hendricks with Miss Ann, or Miss Kirby, we have been, he
             gave us information [we were] able to corroborate and [that
             led] to the arrest of other felons.

      At that point, the trial court interrupted, expressed frustration with the

information that had been provided, and terminated the sentencing proceeding:

             THE COURT: What is it you all want me to do? You all
             taken this from first degree to robbery to burglary. You’ve


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taken it down to attempted armed robbery. Now what you
all want me to do, give him a merit badge and send him
home? The statute doesn’t even allow me to give him a merit
badge and send him home. It’s an active sentence. What do
you all want to talk about?

PROSECUTOR: Your Honor, I thought what [defense
counsel] was referring to in our talks --

THE COURT: Was he the man that Mr. Jones went to, sat
down with, told what he wanted and then he said, yes? He
went -- is he the man that went out that has this record up
to a Record Level VI --

PROSECUTOR: Yes.

THE COURT: -- and goes out and recruits other people to
come, who participates in the drive-by to try to see, who
comes back a second time and you all want to paint him out
like he’s a choir boy.

PROSECUTOR: No, Your Honor, the State’s --

THE COURT: I’m ready to give the judgment.

PROSECUTOR: Yes, sir.

THE COURT: Now is there anything else?

PROSECUTOR: State would just say that he’s been
consistent since before he was, we ever had probable cause.
His story has been consistent. He is the reason that we
were, that they were able to solve the crime and it’s
generally you see a defendant give a statement of self-
interest at first, particularly before any charges are taken
out but this defendant did not. Just thought the Court
would take that into account.

THE COURT: There’s no finding in aggravation and no
finding in mitigation. The sentence that is imposed is within


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            the presumptive range. Defendant has entered a plea of
            guilty to a Class D, maximum punishment is 201. He is a
            Record Level VI. Give him 128 months minimum, 163
            months maximum in the North Carolina Department of
            Corrections. Next case.

            (emphasis added).

      Our review of the transcript shows that the trial court was informed that

defendant wished to address the court and that the trial court acknowledged this

request. However, during defense counsel’s presentation, the court indicated that it

had already decided how to sentence defendant. After hearing from a detective who

had investigated the case, the trial court became impatient, asking if those present

expected the court to give defendant “a merit badge” and accusing them of portraying

defendant as “a choir boy.” Immediately thereafter, the trial court pronounced

judgment. We conclude that, on the facts of this case, defendant was denied the

opportunity to be heard prior to entry of judgment. In reaching this conclusion, we

have considered the cases cited by the State. However, we find them to be factually

distinguishable, given that none of the cited cases address a situation in which the

trial court first acknowledged an explicit request by the defendant to address the

court and then abruptly entered judgment without giving the defendant an

opportunity to speak.

                                     IV. Conclusion




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      For the reasons discussed above, we hold that this Court has the authority to

entertain a petition for issuance of a writ of certiorari by defendant in order to obtain

review of his sentencing following his entry of a plea of guilty, and we elect to grant

defendant’s petition. We further conclude that defendant was denied the opportunity

afforded him under N.C. Gen. Stat. § 15A-1334(b) to address the trial court prior to

entry of judgment. As a result, his sentence must be vacated and this matter

remanded for a new sentencing hearing.

      VACATED AND REMANDED FOR NEW SENTENCING HEARING.

      Chief Judge McGEE and Judge HUNTER, JR. concur.




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