State v. Dorton

• Decision Date: 06 March 2007
• Docket Number: No. COA06-405.,COA06-405.
• Citation: 641 S.E.2d 357
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Tony Wayne DORTON, Defendant.

641 S.E.2d 357

STATE of North Carolina v. Tony Wayne DORTON, Defendant.

No. COA06-405.

Court of Appeals of North Carolina.

March 6, 2007.

Appeal by defendant from judgment entered 28 September 2005 by Judge B. Craig Ellis in Scotland County Superior Court.

Heard in the Court of Appeals 16 November 2006.

Attorney General Roy Cooper, by Assistant Attorney General Laura J. Gendy, for the State.

Daniel F. Read, Durham, for defendant-appellant.

GEER, Judge.

Defendant Tony Wayne Dorton appeals from a judgment of the superior court resentencing him pursuant to this Court's decision in State v. Dorton, 172 N.C.App. 759, 617 S.E.2d 97 (hereinafter "Dorton I"), disc. review denied, 360 N.C. 69, 623 S.E.2d 775 (2005). In Dorton I, this Court found no error as to defendant's trial, but remanded for resentencing in light of the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Dorton I, 172 N.C.App. at 771, 617 S.E.2d at 105.

Two days after defendant was resentenced within the presumptive range for offenders with a prior record level of I, defendant was brought back into court, and the State presented evidence of a prior assault conviction of which the State claimed to have been previously unaware. The trial court resentenced defendant again, but this time within the presumptive range for offenders with a prior record level of II. On appeal, defendant asserts various arguments contending that the trial court was barred from resentencing him as a prior record level of II. Because we find defendant's arguments unpersuasive, we affirm.

Facts

A full recitation of the facts underlying defendant's conviction for second degree sexual offense—as a result of an incident involving his 16-year-old daughter—is set forth in Dorton I. Following defendant's conviction, the trial court concluded that defendant had a prior record level of I based upon a prior record level worksheet indicating defendant had no prior convictions other than routine traffic offenses. The trial court then found as an aggravating factor that defendant had taken advantage of his position of trust or confidence to commit the offense. The court further found as mitigating factors that defendant had a support system in the community and was suffering from both mental and physical conditions that, although insufficient to constitute a defense to the crime, significantly reduced his culpability.

After concluding that the factor in aggravation outweighed the factors in mitigation, the trial court sentenced defendant to an aggravated range sentence of 92 to 120 months imprisonment. Defendant appealed and, in Dorton I, this Court found no error as to defendant's trial, but remanded for resentencing in light of Blakely.

The resentencing hearing was held before Judge B. Craig Ellis at the 26 September 2005 Criminal Session of Scotland County Superior Court. Defendant, who, on 20 September 2005, had executed a waiver of any counsel for the resentencing proceeding appeared unrepresented at the 26 September 2005 hearing. At that hearing, the State argued that defendant should be sentenced in the presumptive range while defendant urged, both in writing and orally, that the trial court find various mitigating factors and sentence him within the mitigated range. Still under the impression that defendant had a prior record level of I, the trial court resentenced defendant within the presumptive range for that level to a term of 73 to 97 months imprisonment.

Following a motion to re-open by the State, the trial court held another sentencing hearing two days later, still during the 26 September 2005 Criminal Session. At the 28 September 2005 hearing, the State presented evidence of defendant's 2002 conviction for assault on a female (02 CRS 52069). The State claimed it had previously been unaware of that conviction and argued that the assault on a female conviction elevated defendant's prior record level from a I to a II. After hearing arguments from both sides and accepting evidence as to the assault conviction, the trial court modified its 26 September 2005 judgment by resentencing defendant as a prior record level II to a presumptive range sentence of 91 to 119 months imprisonment. Defendant subsequently filed a motion "for correction of sentencing error/right to counsel," which the trial court denied. Defendant timely appealed to this Court.

I

We first address defendant's jurisdictional argument that, because our Supreme Court had yet to rule on his petition for discretionary review following this Court's decision in Dorton I, the trial court lacked subject matter jurisdiction to hold any resentencing hearing.¹ "The general rule is that the jurisdiction of the trial court is divested when notice of appeal is given ...." State v. Davis, 123 N.C.App. 240, 242, 472 S.E.2d 392, 393 (1996).

Nevertheless, when a court of the appellate division files an opinion, that court's "clerk shall enter judgment and issue the mandate of the court 20 days after the written opinion of the court has been filed with the clerk." N.C.R.App. P. 32(b). Once this mandate issues, the clerk of the superior court "must file the directive of the appellate court and bring the directive to the attention of the district attorney or the court for compliance with the directive." N.C. Gen.Stat. § 15A-1452(c) (2005) (emphasis added). If a party wishes to stay the effect of a mandate of this Court, "[a]pplication may be made .. . to the Supreme Court for a writ of supersedeas to stay the execution or enforcement of a judgment, order or other determination mandated by the Court of Appeals when a notice of appeal of right or a petition for discretionary review has been or will be timely filed ... to obtain review of the decision of the Court of Appeals." N.C.R.App. P. 23(b).

In the present case, Dorton I was filed on 16 August 2005, the corresponding mandate was issued on 6 September 2005 and filed with the Scotland County Superior Court on 12 September 2005, and the resentencing hearings were held on 26 and 28 September 2005. Although defendant petitioned the Supreme Court for discretionary review under N.C.R.App. P. 15(a), nothing in the record indicates that defendant sought a writ of supersedeas under N.C.R.App. P. 23(b) to stay the effect of this Court's mandate. Absent such a stay, the superior court was statutorily required under N.C. Gen.Stat. § 15A-1452(c) to comply with the mandate of this Court, irrespective whether defendant's petition for discretionary review was still pending. The trial court, therefore, had jurisdiction to conduct the resentencing hearing.

II

Defendant next argues that the trial court deprived him of his right to counsel in the second resentencing hearing by failing to conduct a "new inquiry" into defendant's prior waiver of counsel for resentencing. "Once given, a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him." State v. Hyatt, 132 N.C.App. 697, 700, 513 S.E.2d 90, 93 (1999). Thus, it is the responsibility of the defendant to notify the court if he changes his mind and wishes to have counsel. See State v. Watson, 21 N.C.App. 374, 379, 204 S.E.2d 537, 540-41 ("The burden of showing the change in the desire of the defendant for counsel rests upon the defendant."), cert. denied, 285 N.C. 595, 206 S.E.2d 866 (1974). This Court has previously held that, to satisfy this burden, "a criminal defendant must move the court for withdrawal of the waiver." Hyatt, 132 N.C.App. at 702, 513 S.E.2d at 94.

Here, defendant does not contest the validity of his original waiver of counsel for resentencing following Dorton I, which he signed just eight days prior to the second resentencing hearing, and defendant admits he "waived his right to appointed counsel." Defendant expressly confirmed at the initial resentencing hearing that he wished to represent himself and never moved at the second hearing to withdraw that waiver. Accordingly, we conclude that the trial court did not err by failing to inquire as to whether defendant wished to withdraw his prior waiver of counsel. See id. (holding trial court did not need to inquire whether defendant wished to withdraw previous waiver of counsel when defendant "never moved the court to withdraw his waiver").

III

We turn now to defendant's argument that the State, by failing to appeal the trial court's determination of his prior record level in Dorton I, was precluded under the law of the case doctrine from challenging defendant's prior record level at resentencing. Defendant correctly notes that, although the State could have appealed the determination of his prior record level in Dorton I, it did not do so. See N.C. Gen.Stat. § 15A-1445(a)(3)(a) (2005) (State may appeal any sentence that "[r]esults from an incorrect determination of the defendant's prior record level").

Under the law of the case doctrine, "when an appellate court passes on a question and remands the cause for further proceedings, the questions there settled become the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal, provided the same facts and the same questions which were determined in the previous appeal are involved in the second appeal." Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681-82 (1956). Although more prevalent in civil matters, this doctrine applies with equal force in criminal proceedings. See, e.g., State v. Summers, 351 N.C. 620, 622, 528 S.E.2d 17, 20 (2000); State v. Boyd, 148 N.C.App. 304, 308, 559 S.E.2d 1, 3 (2002).

This Court just recently considered, for the first time, "whether the `law of the case doctrine' applies to `matters which arose prior to the first appeal and which might have been raised thereon but were not.'" Taylor v. Abernethy, 174 N.C.App. 93, 102, 620...