State v. Cloer

• Decision Date: 07 July 2009
• Docket Number: No. COA09-44.,COA09-44.
• Citation: 678 S.E.2d 399
• Parties: STATE of North Carolina v. Denise Herman CLOER, Defendant.
• Court: North Carolina Court of Appeals

678 S.E.2d 399

STATE of North Carolina v. Denise Herman CLOER, Defendant.

No. COA09-44.

Court of Appeals of North Carolina.

July 7, 2009.

Appeal by defendant from judgments entered 17 September 2008 by Judge Beverly T. Beal in Caldwell County Superior Court. Heard in the Court of Appeals 10 June 2009.

Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State.

Kevin P. Bradley, Durham, for Defendant-Appellant.

ERVIN, Judge.

On 15 January 2007, the Caldwell County grand jury returned bills of indictment charging the defendant, Denise Herman Cloer (Defendant), with two counts of forgery and uttering forged instruments in File Nos. 07 CrS 50636 and 50637. On 16 January 2008, Defendant entered guilty pleas to two counts of uttering forged instruments in File Nos. 07 CrS 50636 and 50637 and was sentenced to two consecutive six to eight month terms of imprisonment in the custody of the North Carolina Department of Correction. The active sentences imposed upon Defendant in these cases were suspended, and Defendant was placed on supervised probation for 40 months. At the time that sentence was imposed in these cases, Defendant was given credit for 11 days of time served in pretrial confinement in File No. 07 CrS 50636 and zero days credit for time served in pretrial confinement in File No. 07 CrS 50637.

On 12 May 2008, notices charging Defendant with violating the terms and conditions of her probation in File Nos. 07 CrS 50636-50637 by testing positive for the presence of cocaine and marijuana, failing to perform the required amount of community service, being absent from her residence without lawful excuse, and failing to make certain monetary payments were executed by Intensive Supervision Officer J.J. Amelia. On the same date, orders for Defendant's arrest for violating the terms and conditions of her probation were issued as well. Defendant was arrested pursuant to these orders for arrest on 22 May 2008 and was released from custody after posting bond on 24 May 2008.

On 2 June 2008, the Caldwell County grand jury returned a bill of indictment in File No. 08 CrS 1863 charging Defendant with breaking or entering a motor vehicle, misdemeanor larceny, and misdemeanor possession of stolen goods. A warrant for Defendant's arrest in File No. 08 CrS 1863 was issued on the same date. A magistrate set bail in File No. 08 CrS 1863 on 19 June 2008, and Defendant posted bond and was released from custody on the same date.

On 26 June 2008, an order for Defendant's arrest for failure to appear were issued in File No. 07 CrS 50636. On 14 July 2008, an order for Defendant's arrest for failure to appear was issued in File No. 08 CrS 1863. On 24 July 2008, Defendant was surrendered to the custody of the Caldwell County Jail by her surety as evidenced by notices of surrender filed in File Nos. 07 CrS 50636 and 08 Crs 1863.

On 17 September 2008, Defendant admitted to having willfully violated the terms and conditions of the probationary judgments entered against her in File Nos. 07 CRS 50636 and 50637. Based on Defendant's admission, the trial court revoked Defendant's probation and activated the two consecutive six to eight month sentences that had originally been imposed.

On the same date, Defendant entered pleas of guilty to breaking or entering a motor vehicle, misdemeanor larceny, and misdemeanor possession of stolen goods in File No. 08 CrS 1863. In light of Defendant's guilty pleas, the trial court consolidated all three counts for sentencing and sentenced Defendant to a minimum of six months and a maximum of eight months imprisonment in the custody of the North Carolina Department of Correction. The trial court suspended the active sentence imposed upon Defendant in File No. 08 CrS 1863 and placed her on intensive probation for a period of 36 months. After consulting with her trial counsel, Defendant rejected her probationary sentence and requested that her suspended sentence be activated. As a result, the trial court ordered that Defendant be imprisoned for a minimum term of six months and a maximum term of eight months in File No. 08 CrS 1863. Since the trial court did not order that the sentences imposed in File Nos. 07 CrS 50636 and 50637 on the one hand and File No. 08 CrS 1863 on the other be served consecutively, the six to eight month sentence imposed in File No. 08 CrS 1863 would be served concurrently with the two consecutive six to eight month sentences imposed upon Defendant in File Nos. 07 CrS 50636 and 50637. N.C. Gen.Stat. § 15A-1340.15(a) ("Unless otherwise specified by the court, all sentences of imprisonment run concurrently with any other sentences of imprisonment").

At the time of sentencing, the trial court gave Defendant credit for 14 days spent in pretrial confinement in File No. 07 CrS 50636 and for 57 days spent in pretrial confinement in File No. 08 CrS 1863. The record does not reflect that Defendant lodged any objection to the amount of credit for time served in pretrial confinement awarded by the trial court on 17 September 2008. On 22 September 2008, Defendant noted an appeal from the trial court's judgments to this Court.

On appeal, Defendant argues the superior court erred by failing to give her credit for the 56 days that she spent in pretrial confinement from 27 July 2008 (when Defendant's surety surrendered her to the custody of the Caldwell County Jail in both File Nos. 07 CrS 50636 and 50637 and in File No. 08 CrS 1863) through 17 September 2008 (the date upon which sentence was imposed in all three cases) against the amount of time that she would have to serve as a result of the entry of the judgment revoking her probation and activating her suspended sentences in File No. 07 CrS 50636. According to Defendant, N.C. Gen.Stat. § 15-196.2 requires that each concurrent sentence be credited with the amount of time spent in pretrial confinement during that period because the Defendant's confinement during that interval resulted from actions taken in both File Nos. 07 CrS 50636 and 50637 and File No. 08 CrS 1863.

The first issue that must be addressed is whether this Court has the authority to hear Defendant's appeal at this time at all. "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 (2002), disc. rev. denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Generally speaking, all defendants have an appeal as of right from final judgments imposed in criminal cases pursuant to N.C. Gen.Stat. § 7A-27(b). In addition, N.C. Gen.Stat. § 15A-1347 provides that "[w]hen a superior court judge, as a result of a finding of a violation of probation, activates a sentence or imposes special probation, either in the first instance or upon a de novo hearing after appeal from a district court, the defendant may appeal under [N.C Gen.Stat. § ] 7A-27." Thus, there is no question but that, at least in the abstract, Defendant has a right to note an appeal from the judgments that the trial court entered on 17 September 2008 as a matter of right.

The State notes, however, that when a defendant has entered a plea of guilty, as Defendant did in File Nos. 07 CrS 56036 and 07 CRS 56037 on 16 January 2008 and in File No. 08 CrS 1863 on 17 September 2008, he or she may only raise certain issues on appeal as a matter of right. N.C. Gen.Stat. § 15A-1444; see also State v. Carter, 167 N.C.App. 582, 584, 605 S.E.2d 676, 678 (2004). Given Defendant's guilty pleas, the State contends that she may only raise the issues specified in N.C. Gen.Stat. § 15A-1444(a1) and (a2) on appeal to this Court from the trial court's judgments. Since the issue of whether proper credit for time served in pretrial confinement is not one of the enumerated issues set out in N.C. Gen.Stat. § 15A-1444(a1) and (a2), the State contends that Defendant is not entitled to challenge the trial court's determination of credit for time served on appeal to this Court. As a result, the State contends that Defendant's appeal should be dismissed.

In response, Defendant argues that an admission of a probation violation is not equivalent to a guilty plea and that she is not, therefore, limited to raising the issues that can be considered in connection with appeals as of right from judgments entered following guilty pleas specified in N.C. Gen.Stat. § 15A-1444(a1) and (a2). Instead, Defendant argues that, since N.C. Gen.Stat. § 15A-1347 governs appeals from probation revocation orders and since that statutory provision does not limit the issues that she is entitled to raise on appeal, she is entitled to raise the issue of the propriety of the trial court's calculation of the amount of credit for time served in pretrial confinement to which she is entitled on direct appeal. Finally, Defendant contends that N.C. Gen.Stat. § 15A-1446(d)(18), which allows claims that "the sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law" to be advanced on appeal in the absence of a contemporaneous objection before the trial court, authorizes her to challenge the trial court's calculation of the amount of credit for time spent in pretrial confinement on direct appeal to which she is entitled on appeal. After careful consideration, we conclude that, on the facts present here, Defendant is not entitled to raise this credit for time served issue before this Court at this time and that her claim, which the record before us suggests may well be valid, should be addressed to the trial court in the first...