                                NO. COA13-1104

                     NORTH CAROLINA COURT OF APPEALS

                              Filed: 20 May 2014


STATE OF NORTH CAROLINA

    v.                                       Pender County
                                             Nos. 10 CRS 050584, 10 CRS
                                             050585
CHRISTOPHER AARON ROUSE



    Appeal by defendant from judgments entered 15 March 2013 by

Judge Phyllis Gorham in Pender County Superior Court.                    Heard in

the Court of Appeals 9 April 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Charlene Richardson, for the State.

    Irons & Irons, P.A., by Ben G. Irons, II, for defendant-
    appellant.


    ELMORE, Judge.


    Christopher      Aaron     Rouse    (defendant)       appeals     from    two

judgments entered after a resentencing hearing.                     Because the

denial   of     defendant’s     right    to     counsel     at     resentencing

constitutes     structural     error,   we    vacate    the      trial    court’s

judgments and remand for further proceedings.

    On 26 April 2011, defendant pled guilty to five counts of

second-degree     sexual     exploitation     of   a   minor      committed    in
                                        -2-
November of 2009, and to attaining habitual felon status.                         He

was represented at this proceeding by appointed counsel Tonya

Turner.     As specified in         the parties’ plea arrangement, the

trial court sentenced defendant in the mitigated range to two

consecutive active prison terms of 77 to 102 months.

      Defendant did not pursue an appeal.                  In 2012, however, he

filed a motion for appropriate relief (“MAR”) in superior court

challenging, inter alia, the calculation of his prior record

level (“Level”).        The State conceded in response that, owing to

an error on the sentencing worksheet, “[d]efendant was sentenced

at Level III (5 points), but should have been sentenced at Level

II (3 points).”         Citing its authority to correct errors of law

“on its own motion after entry of judgment[,]” see N.C. Gen.

Stat. § 15A-1420(d) (2013), the trial court allowed defendant’s

MAR   in   part   and    ordered    that      his   case    “be   calendared     for

resentencing without unnecessary delay.”

      At his resentencing hearing on 15 March 2013, defendant

appeared    “unrepresented”        by   counsel.1      Upon       inquiry   by   the

prosecutor and the trial court, defendant acknowledged that he



1
 Although the resentencing judgments list the appointed counsel
who represented defendant at his plea hearing, Tonya Turner, the
transcript of the 15 March 2013 resentencing hearing clearly
shows he was brought into court and required to proceed without
the assistance of counsel.
                                          -3-
had     prior     misdemeanor       convictions        for       possession        of     drug

paraphernalia,        misdemeanor         larceny,      and       domestic          criminal

trespass, and that these convictions resulted in “three prior

[record]    points,       placing    [him]      at    level      two    for       punishment

purposes.”       Despite the absence of evidence or                    stipulation, the

trial court found as a mitigating factor that defendant has a

support system in the community.                     See N.C. Gen. Stat. § 15A-

1340.16(e)(18) (2013).2             After hearing from the parties, the

trial     court     again    sentenced       defendant           to    two     consecutive

mitigated sentences of 77 to 102 months, as provided by his plea

agreement.         The    judgments       entered      by     the      trial      court     at

resentencing reflect defendant’s Level II status based on three

prior record points.

      Defendant filed a timely pro se notice of appeal on 22

March 2013.         The trial court signed appellate entries on 15

April    2013,     appointing       the   Appellate         Defender         to    represent

defendant on appeal.            After filing the record in this Court,

counsel     filed     a     petition      for    writ       of    certiorari         as     an

alternative       basis   for   appellate       review.          While       acknowledging

2
 Because the pertinent materials are absent from the record on
appeal, it is unclear whether this mitigating factor was also
found at defendant’s original sentencing proceeding in April of
2011.   We further note the record on appeal lacks the trial
court’s written findings of aggravating and mitigating factors
at resentencing.
                                             -4-
certain technical deficiencies in defendant’s notice of appeal,

defense       counsel    asked    this       Court     to   review       the    judgments

pursuant      to   N.C.R.      App.     P.   21(a)(1),      in    order        to    address

“constitutional issues” including the violation of defendant’s

right    to    counsel    at     resentencing.          The      State    opposed       this

Court’s issuance of the writ, arguing that denial of counsel is

not a cognizable claim on appeal from a guilty plea.                                See N.C.

Gen. Stat. § 15A-1444(a1)-(a2), (e) (2013).                        We note, however,

that the State did not move to dismiss defendant’s appeal.

       Having examined defendant’s notice of appeal, we find its

contents sufficient to satisfy the jurisdictional requirements

of N.C.R. App. P. 4(b).                 Although defendant lists extraneous

file numbers for charges dismissed under his plea agreement3, his

notice of appeal also refers to the relevant file numbers–10 CRS

271,    50584-88–addressed         in    the       resentencing     judgments.           See

N.C.R. App. P. 4(b).           “[A] mistake in designating the judgment .

. . should not result in loss of the appeal as long as the

intent to appeal from a specific judgment can be fairly inferred

3
 Any confusion regarding the file numbers resulted from the trial
court’s mistaken reference to 09 CRS 53285-89 at resentencing.
Defendant called attention to the court’s error and noted his
objection.   The court ultimately corrected its judgments on 27
March 2013 to reflect the correct file numbers in 10 CRS 50584-
88.    It appears defendant simply exercised due caution in
listing both 09 CRS 52385-89 and 10 CRS 50584-88 in his notice
of appeal filed 22 March 2013.
                                         -5-
from the notice and the appellee is not misled by the mistake.”

Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442,

443    (2006)   (citations       and   quotations        omitted).       Furthermore,

while the notice of appeal fails to designate the court to which

his appeal is taken, as required by                      Rule 4(b), “defendant’s

intent to appeal is plain, and since this Court is the only

court with jurisdiction to hear defendant’s appeal, it can be

fairly inferred defendant intended to appeal                       to this Court.”

State v. Ragland, ___ N.C. App. ___, ___, 739 S.E.2d 616, 620,

disc. review denied, ___ N.C. ___, 747 S.E.2d 548 (2013).

       On   appeal,      defendant     argues       only    that   the   failure   to

provide     him        with   counsel    at     resentencing          violated     his

constitutional and statutory rights under U.S. Const. amend. VI,

N.C. Const. art. I, § 23, and N.C. Gen. Stat. § 7A-451(a)(1).

The State responds that defendant has no right to appeal the

denial of his right to counsel, inasmuch as his guilty plea

limited his appellate rights to the issues set forth in N.C.

Gen. Stat. § 15A-1444(a1)-(a2), (e) (2011).

       As the State observes, the constitutional issue raised by

defendant does not fall within his limited right of appeal under

N.C. Gen. Stat. § 15A-1444.               However, “it is permissible for

this    Court     to    review   pursuant      to    a     petition   for   writ   of
                                        -6-
certiorari during the appeal period a claim that the procedural

requirements    of    [G.S.    Chapter    15A,]       Article     58    [(Procedures

Relating to Guilty Pleas in Superior Court)] were violated.”

State v. Rhodes, 163 N.C. App. 191, 194, 592 S.E.2d 731, 733

(2004).     Although Article 58 does not                expressly       address the

appointment    of    counsel    to     assist   an     indigent    defendant      who

pleads    guilty     in   superior     court,    we     believe    a     defendant’s

constitutional right to representation by counsel is implicit in

these statutory procedures.            See N.C. Gen. Stat. §§ 15A-1012(a),

15A-1022(a)(5) (2013).          We therefore allow defendant’s petition

for writ of certiorari for the purpose of reviewing his claim.

    It is well-established that “sentencing is a critical stage

of a criminal proceeding to which the right to . . . counsel

applies.”     State v. Davidson, 77 N.C. App. 540, 544, 335 S.E.2d

518, 521, writ denied, 314 N.C. 670, 337 S.E.2d 583 (1985).

Accordingly,       “[t]his     Court    has     held    that      the    threat   of

imprisonment    at    a   resentencing        hearing    triggers       an   absolute

right to counsel under the Sixth Amendment and N.C. Gen. Stat. §

7A-451.     There is no question but that Defendant was subject to

a threat of imprisonment at his resentencing hearing.”                       State v.

Boyd, 205 N.C. App. 450, 454 & n.1, 697 S.E.2d 392, 394 & n.1

(2010) (citing State v. Lambert, 146 N.C. App. 360, 364-65, 553
                                       -7-
S.E.2d    71,    75    (2001)).     Indeed,      defendant’s        plea   agreement

required that he serve a minimum of twelve years in prison.

      The complete denial of counsel is one of the six forms of

structural error identified by the United States Supreme Court.

State v. Polke, 361 N.C. 65, 73, 638 S.E.2d 189, 194 (2006)

(citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799

(1963)).        “[A] defendant’s remedy for structural error is not

dependant upon harmless error analysis; rather, such errors are

reversible per se.”            State v. Garcia, 358 N.C. 382, 409, 597

S.E.2d 724, 744 (2004).            Therefore, we must vacate the trial

court’s judgments and remand for resentencing.                       Boyd, at 456,

697   S.E.2d     at    396   (“Defendant   was   deprived      of    his   right   to

counsel    at    the    resentencing   hearing      and   is    entitled      to   be

resentenced.”).

      Vacated and remanded for resentencing.

      Judges McCULLOUGH and DAVIS concur.
