                                      NO. COA14-426

                         NORTH CAROLINA COURT OF APPEALS

                               Filed: 21 October 2014
STATE OF NORTH CAROLINA


     v.                                       Wake County
                                              No. 11 CRS 219920
THOMAS EVERETTE, JR.,
     Defendant




    Appeal by Defendant from judgment entered 19 October 2013

by Judge Orlando F. Hudson in Wake County Superior Court.                  Heard

in the Court of Appeals 8 September 2014.


    Roy Cooper, Attorney General, by Harriet F. Worley, Special
    Deputy Attorney General, for the State.

    Staples Hughes, Appellate Defender, by Jillian C. Katz,
    Assistant Appellate Defender, for defendant-appellant.


    BELL, Judge.


    Thomas    Everette,         Jr.     (“Defendant”)    appeals    from     his

conviction   for    obtaining      property    by     false   pretenses.      On

appeal, Defendant contends that the trial court erred by (1)

denying his motion to dismiss because there was a fatal variance

between the false pretense alleged in the indictment and the

State’s evidence at trial; (2) denying his motion to dismiss

because   there    was    no   causal     relationship    between   the    false
                                      -2-
representation     alleged    and     the    value    obtained;       and    (3)

miscalculating Defendant’s prior record points.                After careful

review, we conclude that Defendant received a fair trial free

from prejudicial error, but remand for correction of a clerical

error on Defendant’s prior record level worksheet.

                            Factual Background

    The State presented evidence tending to show the following

facts: In 2010, a home located at 2401 Victoria Park Lane in

Raleigh, North Carolina was vacant after a foreclosure.                  Veneta

Ford (“Ms. Ford”), a realtor in Raleigh, was contacted by Bank

of America, the new owner of the property, to prepare the home

for re-sale.     Ms. Ford put the utilities in her name and had the

house re-keyed.     She placed the house on the market on 12 July

2010.

    Ms.   Ford    visited    the   house    several   times    to    clean   and

perform   maintenance   on     the    property.       On    one     visit,   she

discovered that the for-sale sign she had placed on the property

had been removed.     Additionally, the house had been re-keyed so

that her key did not work.           On another occasion, Ms. Ford went

to the property and discovered that the lockbox attached to the

front door containing the keys to the house had been cut off.

In January 2011, Ms. Ford noticed a professional-looking sign

warning against trespassing on the property.               Neighbors informed
                                              -3-
Ms.    Ford    that       someone     had    moved       into       the    home.        She   also

discovered that someone had taken the utilities out of her name

and put them in his own name.                       Ms. Ford contacted the Raleigh

Police Department about this incident.

       On     23    August     2011,      Raleigh        Police       Department        Sergeant

Timothy Halterman (“Sergeant Halterman”) responded to a call for

service at 2401 Victoria Park Lane after receiving a complaint

from Ms. Ford that an unauthorized person was living on the

property.          Sergeant Halterman asked Defendant for documentation

showing     he      was     authorized      to   live      in       the   home.         Defendant

retrieved a           lease   agreement from             his safety deposit              box and

presented        it    to     Sergeant      Halterman.              He    informed      Sergeant

Halterman that the lease was from a company in Greenville, North

Carolina and that he had been living in the house for months.

After this encounter, Sergeant Halterman contacted his superior

officer at the time, who advised him to contact Detective Terry

Embler      (“Detective            Embler”),        a    Raleigh          Police     Department

financial          crimes     investigator,         to     request         that    he    further

investigate the true ownership of 2401 Victoria Park Lane.

       Ms. Ford eventually spoke with Defendant after leaving her

card   on     the     door    of    the     house       with    a   note    requesting        that

someone call her.              Defendant contacted her to tell her that he

had bought the property and had a deed.                              Ms. Ford checked the
                                       -4-
Wake County public records and found that a general warranty

deed had been recorded transferring title to the property from

International Fidelity Trust (“IFT”) to itself, with Defendant

listed as the trustee.

    During     this    time,     Detective         Embler      was   investigating

whether Defendant was validly living at the Victoria Park Lane

property.     He    discovered       that     on   13   July    2011,    a     special

warranty deed had been recorded at the Wake County Register of

Deeds Office transferring title to the property at 2401 Victoria

Park Lane from Bank of New York Mellon to IFT.                       This deed was

signed by Keith Chapman as attorney-in-fact for the bank and had

been notarized by Carolyn Evans (“Ms. Evans”).

    Detective Embler testified that he was not able to find any

information about IFT on the North Carolina Secretary of State’s

website, at the South Carolina Secretary of State’s office, or

through an Internet       search.        He    discovered that          the address

given for the business corresponded to a P.O. Box at a UPS store

in Greenville, North Carolina.                Detective Embler learned that

P.O. Box 250, the address listed as IFT’s address on the general

warranty    deed,     actually       belonged      to   Defendant,        and    that

Defendant    had    recorded     a    vast     number    of     deeds    and    other

paperwork with the Edgecombe County Register of Deeds Office

using P.O. Box 250 as his address.                  In particular, Detective
                                          -5-
Embler testified that Defendant had recorded a special warranty

deed with the Edgecombe County Register of Deeds Office that

looked remarkably similar to the special warranty deed for the

property at 2401 Victoria Park Lane that had been recorded in

Wake County.

       After     collecting     this       information,        Detective     Embler

contacted Secret Service Agent Michael Southern (“Special Agent

Southern”) to assist in the investigation.                 On 24 August 2011,

Detective Embler and Special Agent Southern went to the Victoria

Park    Lane     property   with     an    arrest    warrant     for     Defendant.

Defendant was arrested and charged with breaking and entering

and    obtaining     property   by     false      pretenses.      The     next   day

Defendant was also charged with forgery of deeds.

       On 28 November 2011 a grand jury indicted Defendant for

breaking and entering, obtaining property by false pretenses,

and forgery of a deed.             A jury trial commenced on 14 October

2013 in Wake County Superior Court.

       At   trial,     Defendant     testified      on   his    own     behalf   and

presented the following account of the events leading up to his

arrest: Defendant was facing potential foreclosure on his house

which was under construction in Edgecombe County.                     In an effort

to     prevent   his    house   from      being     foreclosed    on,     Defendant

contacted a company he found on Craigslist called International
                                            -6-
Fidelity Trust and spoke with someone named John Kenny about

using IFT’s services to improve his credit score.

       Defendant also testified that IFT told him that it owned

several properties in Wake County at which he could live in

exchange for performing              work on      the property.         According to

Defendant,     he    chose    to     live   at     2401   Victoria     Park    Lane,   a

property purportedly owned by IFT.                     In December 2010, at IFT’s

direction, Defendant           recorded several documents, including a

common law lien and a general warranty deed, related to the

Victoria Park Lane           property as          “trustee” for IFT.           However,

Defendant      testified      that    he    did    not    remember     recording     the

general    warranty     deed    specifically,           because   it   was    allegedly

part of a package that contained the common law lien and other

documents.

       According to Defendant, on 15 December 2010, IFT had the

property    rekeyed     and    he    began     performing      maintenance      on   the

property.      In May 2011, Defendant entered into a lease agreement

with IFT for the Victoria Park Lane property set to begin on 31

May 2011.      Defendant and his family moved into the house on 10

June   2011.        Around    that    time,       he   also   applied    for   utility

services in his name at 2401 Victoria Park Lane.                              Defendant

testified that he was paying taxes on the property by making

payments to IFT in monthly installments.
                                         -7-
       At   trial,    the     State    introduced    a    copy     of    the    special

warranty deed recorded with the Wake County Register of Deeds

Office.      Detective Embler testified that he discovered another

deed    similar      to     this   special     warranty     deed    through       which

Defendant and his wife had received title to a home in Edgecombe

County in 2006.           Both deeds contained the same formatting, were

signed by the same individual as attorney-in-fact for the lender

that had foreclosed on each of the properties despite the fact

that   the   lenders        transferring     title   on   the      two    deeds    were

different, and the same out-of-state law firm was purported to

have prepared both deeds.             Defendant denied having recorded the

special warranty deed with the Wake County Register of Deeds

Office.

       Ms. Evans, the notary public who had purportedly notarized

the special warranty deed for 2401 Victoria Park Lane, testified

at trial that she was a licensed notary in South Carolina, not

North Carolina.           She testified that she did not notarize the

special warranty deed and that the signature on the document was

not hers.       She further stated that the notary stamp on the

special warranty deed was the stamp she used when she worked at

Wells Fargo, but that she was not working for Wells Fargo or any

other lender at the time this deed was notarized.                              She also

observed     that     the    special    warranty     deed    was        not    properly
                                         -8-
notarized because the signature was not hand-dated, and a notary

is required to hand-date her signature.

      Dawn   Hurley      (“Ms.    Hurley”),      a   Bank    of    America   banking

officer, testified that Bank of America acquired the home at

2401 Victoria Park Lane in February 2010 through a foreclosure

sale.   Ms. Hurley also testified that the title to the property

was legally in the name of Bank of America, not Bank of New York

Mellon, as indicated on the special warranty deed.

      Veronica    Gearon     (“Ms.      Gearon”),    Wake    County    Register    of

Deeds   recording     supervisor,        testified    that    by    virtue   of   the

recording    of    the    special       warranty     deed,    ownership      of   the

property was transferred from Bank of New York Mellon to IFT.

Ms. Gearon stated that she was unsure whether the recording of

the   earlier     warranty       deed   in     December     2010   that   Defendant

admitted he had prepared and signed as trustee for IFT would

have transferred ownership of the property because the grantor

and grantee were listed as the same entity — IFT — on that deed.

      On 19 October 2013, the jury returned a verdict finding

Defendant guilty of obtaining property by false pretenses, but

deadlocked with respect to the breaking and entering and forgery

of deeds charges.          As a result, the trial court declared a

mistrial with respect to these two charges.                   That same day, the
                                          -9-
trial court sentenced Defendant to a term of 110 to 141 months

imprisonment.     Defendant gave notice of appeal in open court.

                                        Analysis

                             I.     Fatal Variance

      Defendant      first   argues       that     the   trial     court   erred   by

denying his motion to dismiss the charge of obtaining property

by false pretenses because there was a fatal variance between

the     indictment    and    the        State’s     evidence.         Specifically,

Defendant    contends    that      the    indictment      alleged     that   he    had

“filed a forged and false Special Warranty Deed,” but that the

State did not present sufficient evidence at trial to establish

that he forged or was involved in forging the special warranty

deed.    We find Defendant’s contentions to be without merit.

      To preserve a fatal variance argument for appellate review,

a defendant must state at trial that an allegedly fatal variance

is the basis for his motion to dismiss.                     State v. Curry, 203

N.C. App. 375, 384, 692 S.E.2d 129, 137, appeal dismissed and

disc. review denied, 364 N.C. 437, 702 S.E.2d 496 (2010).                           At

trial,    Defendant    based      his    motion    to    dismiss    solely   on    the

grounds of insufficient evidence.                 Therefore, Defendant did not

properly preserve for appellate review his argument that there

was a fatal variance between the indictment and the evidence

presented for appellate review.                 See State v. Pickens, 346 N.C.
                                         -10-
628, 645, 488 S.E.2d 162, 172 (1997) (“Regarding the alleged

variance    between    the    indictment          and   the    evidence     at    trial,

defendant based his motions at trial solely on the ground of

insufficient    evidence      and     thus        has   failed   to    preserve       this

argument for appellate review.”) (citation omitted).                          However,

Defendant    asks     this    Court      to       review   his   argument        in    our

discretion     pursuant      to   Rule        2    of   the   Rules    of     Appellate

Procedure. See N.C.R. App. P. 2.                  We elect to do so and conclude

that Defendant has not shown a variance between the indictment

and the evidence presented.

    “In order for a variance to warrant reversal, the variance

must be material.       A variance is not material, and is therefore

not fatal, if it does not involve an essential element of the

crime charged.”        State v. Norman, 149 N.C. App. 588, 594, 562

S.E.2d 453, 457 (2002) (citations omitted).                          The elements of

obtaining property by false pretenses are

            (1) [a] false representation of a past or
            subsisting fact or a future fulfillment or
            event, (2) which is calculated and intended
            to deceive, (3) which does in fact deceive,
            and (4) by which the defendant obtains or
            attempts to obtain anything of value from
            another person.

State v. Saunders, 126 N.C. App. 524, 528, 485 S.E.2d 853, 856

(1997)     (citation      omitted);       see       N.C.      Gen.    Stat.      §    14-

100(a)(2013).
                                        -11-
      Here, Defendant contends that the State’s evidence at trial

was   insufficient        to   establish       that    he    forged       the    special

warranty deed or took part in preparing this document.                           However,

the indictment states, in pertinent part, as follows:

            2.   And the jurors for the State upon their
            oath present that on or about July 13, 2011,
            in Wake County, the Defendant named above
            unlawfully, willfully, and feloniously did
            knowingly and designedly with the intent to
            cheat and defraud obtain and attempt to
            obtain the house and real property located
            at 2401 Victoria Park Lane, Raleigh, North
            Carolina from Bank of New York Mellon
            Corporation . . . by means of a false
            pretense which was calculated to deceive and
            did deceive.

                 The false pretense consisted of the
            following: the Defendant presented and filed
            a forged and false Special Warranty Deed in
            the Wake County Register of Deeds office
            purporting to transfer ownership of this
            foreclosed   property   from   the  mortgage
            holding bank to an apparent false trust in
            which the Defendant is the trustee.

(Emphasis added).

      The indictment does not allege that the false pretense at

issue is that Defendant forged the special warranty deed, nor is

forgery     an    essential    element     of     the       offense      of     obtaining

property    by    false    pretenses.       Defendant        has       shown    no   fatal

variance between the indictment and the evidence presented.                            At

trial,     the    State    presented     ample        evidence         that     Defendant

presented        and   recorded     a      forged       deed       —     the     precise
                                     -12-
representation that was charged.            As such, Defendant’s argument

on this issue is without merit.

 II.     Causal Relationship Between False Representation Alleged
                        and the Value Obtained

    Defendant     next   contends      that   the     trial   court    erred   by

denying his motion to dismiss the charge of obtaining property

by false pretenses for insufficient evidence because the State

failed to show that the alleged false pretense — the forgery of

the special warranty deed — caused Defendant to obtain the house

at 2401 Victoria Park Lane.

    Defendant    acknowledges       that    his    trial   counsel    failed    to

specifically    preserve     this      argument      at    trial.         However,

Defendant again asks this Court to invoke Rule 2 to reach the

merits of his argument.          Under Rule 2, this Court may suspend

the rules of appellate procedure in order “[t]o prevent manifest

injustice to a party, or to expedite decision in the public

interest.”    N.C.R. App. P. 2 (2013).

    “Rule 2     relates to the residual             power of our      appellate

courts to consider,        in exceptional         circumstances,     significant

issues   of   importance    in   the    public     interest    or    to   prevent

injustice which appears manifest to the Court and only in such

instances.”     State v. Hart, 361 N.C. 309, 315-16, 644 S.E.2d

201, 205 (2007) (citations and quotation marks omitted).                   “[T]he

exercise of Rule 2 was intended to be limited to occasions in
                                     -13-
which a fundamental purpose of the appellate rules is at stake,

which will necessarily be rare occasions.”                  Id. at 316, 644

S.E.2d at 205 (citations and internal quotation marks omitted).

    Nothing in the record or briefs demonstrates “exceptional

circumstances” sufficient to justify suspending or varying the

rules in order to prevent “manifest injustice” to Defendant.

Id. at 315, 644 S.E.2d at 205.         The State presented evidence at

trial that the special warranty deed was a forgery and that

Defendant was the one who filed the forged deed.                     The natural

consequence of filing the forged deed was that Defendant secured

possession of the house, thereby implying causation.                   State v.

Dale, 218 N.C. 625, 641, 12 S.E.2d 556, 565 (1945) (“The facts

alleged    in     the     indictment         here,     relating        to      the

misrepresentation . . . are such as to imply causation, since

they are obviously calculated to produce the result.”).                     In the

exercise of our discretionary authority, we decline to invoke

Rule 2.   Therefore, this argument is dismissed.

  III. Miscalculation of Defendant’s Prior Record Level Points

    Defendant’s    final    argument    on    appeal   is     that    the    trial

court   incorrectly     calculated    his    prior   record    level     points.

Defendant acknowledges that a recalculation of his prior record

points will not alter his sentence, but asks that a new prior

record level worksheet be completed to accurately reflect his
                                            -14-
record.    We agree.

       Defendant contends that he should only have 10 prior record

level points, rather than 11, because two of the misdemeanors

listed    on   the    worksheet       and    used    in   calculating     Defendant’s

prior record level had the same date of conviction.                            As such,

only one may be counted for purposes of determining prior record

points.    N.C. Gen. Stat. §15A-1340.14(d) (2013).

       Because the         sentence imposed         will not be affected             by a

recalculation        of    Defendant’s      prior     record    points,   it    is    not

necessary that there be a new sentencing hearing.                         Rather, we

treat this as a clerical error and remand this matter to the

trial court for its correction.                    State v. Dobbs, 208 N.C. App.

272,   274,    702        S.E.2d   349,     350-51     (2010)    (finding      judgment

erroneously designating defendant’s offense as Class G felony

rather than Class H felony to be clerical error and remanding to

trial court for correction where sentence unaffected by error).

       The dissent relies on State v. Jarman for the proposition

that   while   a     trial    court    may    “amend      its   records   to    correct

clerical mistakes or supply defects or omissions therein”, it

lacks the authority, “under the guise of an amendment of its

records, to correct a judicial error.”                    140 N.C. App. 198, 202,

535 S.E.2d 875, 878 (2000) (quoting State v. Davis, 123 N.C.

App. 240, 242-43, 472 S.E.2d 392, 393 (1996).                     We note, however,
                                             -15-
that Jarman and          Davis can be distinguished                  from    the present

case.        In   both       Jarman    and    Davis,     the       distinction    between

clerical and judicial errors was of importance because it was

the trial court that, upon its own initiative (through a hearing

or motion), sought to correct an error.

       In    Davis,     we    held     that     the   trial    court    “impermissibly

corrected a judicial error,” and thus “was without jurisdiction

to amend the judgments in the course of settling the record on

appeal” where the trial court entered an amended judgment after

conducting a hearing to settle the record on appeal.                             123 N.C.

App. 240 at 242-43, 472 S.E.2d 392 at 393-94.                               On the other

hand, in Jarman, we held that the trial court’s correction of an

order       resulting        from     inaccurate        information         inadvertently

provided by the deputy clerk was a clerical error, and therefore

proper, because “the trial judge did not exercise any judicial

discretion or undertake any judicial reasoning” when signing an

order   providing        credit       against    service      of    sentence     that   the

deputy clerk prepared.              140 N.C. App. at 203, 535 S.E.2d at 879.

       In the case at bar, the trial court’s error was brought to

this    Court     by   Defendant       on     appeal.      “Where      there     has    been

uncertainty in whether an error was ‘clerical,’ the appellate

courts have opted to err on the side of caution and resolve the

discrepancy       in   the     defendant’s       favor.”       Jarman       at   203,    535
                                               -16-
S.E.2d at 879 (citation and internal quotation marks omitted).

In Jarman, we stated that “the judge’s action in signing the

order    giving          defendant    credit       to    which       he    believed     she   was

legally entitled was a mechanical and routine, though mistaken,

application of a statutory mandate.” Id. Here, the assistant

district       attorney         prepared         Defendant’s         prior     record     level

worksheet for the               trial judge’s           signature by filling             in the

blanks on a standard AOC form and presenting it to the trial

judge.         As    in     Jarman,      the     record    in    the       case   sub    judice

“demonstrates that the trial judge did not exercise any judicial

discretion or undertake any judicial reasoning when signing” the

prior record level worksheet. Id.

        Further,          because     the      trial     court       did    not   attempt     to

correct its own error while the case was on appeal, whether the

trial court would have had jurisdiction to amend Defendant’s

prior record level points is inapposite.                             Therefore, we find it

proper to treat Defendant’s miscalculation of prior record level

points as a clerical error and remand to the trial court for

correction.          State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d

695,     696    (2008)          (“When,     on     appeal,       a     clerical       error   is

discovered          in    the    trial    court’s        judgment         or   order,    it   is

appropriate to remand the case to the trial court for correction

because of the importance that the record speak the truth.”)
                                -17-
(citation and internal quotation marks omitted).

                           Conclusion

    For the reasons stated above, we conclude that Defendant

received a fair trial free from error, but remand for correction

of the clerical error found in his prior record level worksheet.

    NO ERROR; REMANDED FOR CORRECTION OF CLERICAL ERROR.

    Judge McCULLOUGH concurs.

    Judge ERVIN concurs in part and dissents in part.
                                   NO. COA14-426
                       NORTH CAROLINA COURT OF APPEALS
                             Filed:     21 October 2014
STATE OF NORTH CAROLINA

                                             Wake County
    v.
                                             No. 11 CRS 219920

THOMAS EVERETTE, JR.



    ERVIN, Judge, concurring in part and dissenting in part.


    Although     I     concur      in   my   colleagues’    conclusion     that

Defendant received a fair trial that was free from prejudicial

error and that his convictions should remain undisturbed, I am

unable to agree with the Court’s determination that the trial

court’s   apparent        miscalculation     of   Defendant’s   prior    record

level   points   for      sentencing     purposes    constitutes    a   clerical

error that should be corrected on remand.                 On the contrary, I

believe that this miscalculation constitutes judicial error and

conclude, given the fact that this error had no impact on the

calculation of Defendant’s prior record level, that there is no

need for us to remand this case to the trial court for the

correction of Defendant’s prior record worksheet.                  As a result,

I concur in the Court’s opinion in part and dissent from the

Court’s opinion in part.

    According        to     N.C.    Gen.     Stat.    §   15A-1340.14(a),      a

defendant’s prior record level is determined “by calculating the
                                            -2-
sum   of    the     points      assigned    to     each       of    the   offender’s      prior

convictions that the court . . . finds to have been proved in

accordance with this section.”                   In addition, N.C. Gen. Stat. §

15A-1340.14(d) provides that:

                 For purposes of determining the prior record
                 level, if an offender is convicted of more
                 than one offense in a single superior court
                 during   one   calendar    week,  only   the
                 conviction for the offense with the highest
                 point total is used.      If an offender is
                 convicted of more than one offense in a
                 single session of district court, only one
                 of the convictions is used.

In    the   present      case,      the   trial       court        calculated     Defendant’s

prior record level by assigning a single point each for six of

Defendant’s seven prior eligible misdemeanor convictions, two of

which occurred          in the Edgecombe              County District            Court on 10

February     2005       and   one    of    which      stemmed        from   a    charge   that

appears to have been voluntarily dismissed after the defendant

noted an appeal to the Edgecombe County Superior Court.                                   As a

result      of    the    fact    that     two    of    Defendant’s          seven   eligible

misdemeanor convictions appear to have occurred during a single

session of court and the fact that one of Defendant’s seven

eligible misdemeanor convictions appears to have been overturned

on    appeal      to    the   Superior      Court,        I    agree      with    Defendant’s

contention, which my colleagues have accepted, that the trial

court erred by calculating Defendant’s prior record level using
                                          -3-
six, rather than five, misdemeanor convictions.                            However, as

Defendant has candidly acknowledged, the erroneous inclusion of

an     additional      prior     record    point       based       upon    Defendant’s

convictions for committing misdemeanor offenses had no impact

upon the calculation of Defendant’s prior record level given

that Defendant would still have been subject to being sentenced

as a Level IV offender even after the removal of the erroneously

assigned prior record point.

       Although my colleagues acknowledge that the trial court’s

apparent error had no effect upon the calculation of Defendant’s

prior record level, they have concluded that the trial court

should be required to correct Defendant’s prior record level

worksheet to eliminate any trace of this error from the court

records on the basis of our authority to order the correction of

clerical errors.           According to well-established North Carolina

law, “a court of record has the inherent power to make its

records speak the truth and, to that end, to amend its records

to   correct   clerical        mistakes   or     supply   defects         or   omissions

therein,” State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d

875,    878   (2000)    (citation    omitted),        with     a    “clerical    error”

being defined as “[a]n error resulting from a minor mistake or

inadvertence,       esp.    in   writing        or   copying       something    on   the

record, and not from judicial reasoning or determination.”                           Id.
                                       -4-
(quoting Black’s Law Dictionary 563 (7th ed. 1999)).                     However, a

trial     court   lacks   the     authority,      “under     the    guise    of    an

amendment of its records, [to] correct a judicial error.”                          Id.

(citation omitted).1

      In State v. Smith, 188 N.C. App. 842, 844-45, 656 S.E.2d

695, 696 (2008), this Court found that a clerical error had

occurred in an instance in which, after                 correctly identifying

the   aggravating      factors    to   be    utilized      for   the     purpose   of

sentencing Defendant, the trial court misread the form used for

the     purpose   of   determining      the      aggravating       and   mitigating

factors utilized in sentencing convicted impaired drivers and

checked the wrong box on that form.                 In the present case, by

contrast, the record contains no indication that the trial court

did   anything    other    than    make      a   legally    erroneous       decision



      1
      As my colleagues correctly note, the decision in Jarman
refers to the power of the trial court, rather than an appellate
court, to correct clerical errors.   The distinction upon which
my colleagues rely strikes me as of little importance given that
the decisions remanding cases to the trial courts for the
correction of clerical errors do not appear to assert a
separate, and superior, authority possessed by appellate courts
to require the correction of clerical errors.     Instead, those
decisions appear to me to reflect instructions delivered by the
appellate courts to the trial courts to exercise their authority
to correct clerical errors in particular circumstances.     As a
result, the fact that the error correction authority referenced
in Jarman and similar cases is possessed by the trial courts
does not mean that appellate courts have the authority to order
the trial courts to correct errors that trial courts lack the
authority to correct on their own.
                                       -5-
concerning the number of prior record points that Defendant had

accumulated.       In other words, instead of making an inadvertent

clerical    error,      the   trial   court   made   an    erroneous      judicial

determination concerning the number of prior record points that

Defendant had accumulated for felony sentencing purposes. 2                  As a

result,    given     that     no   clerical   error,      as   compared    to    an

erroneous judicial determination, appears to have been made and

given    Defendant’s     concession,    which   is     clearly   correct,       that

rectification      of   the   trial   court’s   error     in   calculating      the

     2
      The Court appears to suggest that the miscalculation of
Defendant’s prior record level constituted a clerical, rather
than a judicial, error by asserting that “the assistant district
attorney prepared Defendant’s prior record level worksheet for
the trial court’s signature by filling in the blanks on a
standard AOC form and presenting it to the trial judge” and
arguing that, “[a]s in Jarman, the record in the case sub judice
‘demonstrates that the trial judge did not exercise any judicial
discretion or undertake any judicial reasoning when signing’ the
prior record level worksheet.” I am unable to accept the notion
that the trial court is engaged in the merely ministerial act of
signing off on a prior record level determination made by the
prosecutor during the sentencing process given the clear command
of N.C. Gen. Stat. § 15A-1340.14 that the trial court, rather
than the prosecutor, be responsible for correctly calculating a
convicted criminal defendant’s prior record level and the
numerous decisions of the Supreme Court and this Court
evaluating the extent to which particular trial judges carried
out that responsibility in accordance with the applicable law.
As a result, the determination at issue here is a far cry from
the relatively ministerial calculation of the amount of credit
for time served in pretrial confinement at issue in Jarman.
State v. Mason, 295 N.C. 584, 594, 248 S.E.2d 241, 248 (1978),
cert. denied, 440 U.S. 984, 99 S. Ct. 1797, 60 L. Ed. 2d 246
(1979) (describing the determination of the amount of credit for
pretrial confinement to which a convicted criminal defendant is
entitled as “a matter for administrative action”).
                                      -6-
number of prior record points that Defendant had accumulated for

felony sentencing purposes would not result in a reduction in

Defendant’s sentence, 3 I am unable to agree with my colleagues’

determination that this case should be remanded to the trial

court   for   the   correction   of    Defendant’s   prior    record   level

worksheet     and    respectfully      dissent    from   my    colleagues’

determination to the contrary. 4            I do, however, concur in the

remainder of the Court’s opinion.



    3
      Although my colleagues correctly note our prior statement
in Jarman to the effect that, “[w]here there has been
uncertainty in whether an error was ‘clerical,’ the appellate
courts have opted ‘to err on the side of caution and resolve
[the discrepancy] in the defendant’s favor,’” Jarman, 140 N.C.
App. at 203, 535 S.E.2d at 879 (alteration in original) (quoting
State v. Morston, 336 N.C. 381, 410, 445 S.E.2d 1, 17 (1994)),
they overlook the context in which that statement was made.
Aside from the fact that the error at issue here is clearly
judicial rather than clerical in nature, the manner in which the
court resolved the matter at issue in the decision from which
the Jarman court derived the language on which my colleagues
rely, which was whether the trial court found the existence of
one or multiple aggravating factors for sentencing purposes, was
critical to a determination of whether or not the defendant had
to be resentenced.   As a result, since the manner in which the
present dispute is resolved will have no practical impact on
Defendant, I question whether the principle upon which my
colleagues rely has any relevance in the present case.
    4
      I concede that the decision that the Court has reached in
this case will have little immediate practical impact, when
considered in the narrow context in which it has been made.
However, the effect of substantially broadening the extent to
which litigants are able to obtain appellate decisions requiring
the correction of non-clerical errors on remand will, over time,
add to the burdens that are already faced by our trial courts
and trial court staffs without adding anything of substance to
                              -7-




the quality of justice provided in the General Court of Justice.
