State v. Jarman

• Citation: 140 NC App. 198,535 S.E.2d 875
• Decision Date: 03 October 2000
• Docket Number: No. COA99-1014.,COA99-1014.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Laura Cottle JARMAN.

535 S.E.2d 875

140 NC App. 198

STATE of North Carolina v. Laura Cottle JARMAN.

No. COA99-1014.

Court of Appeals of North Carolina.

October 3, 2000.

Michael F. Easley, Attorney General, by Christopher W. Brooks, Associate Attorney General, for the State.

John T. Hall, Raleigh, for defendant-appellant.

EDMUNDS, Judge.

Defendant Laura Cottle Jarman appeals a judicial order vacating an earlier order that gave her credit for time served under electronic house arrest prior to conviction. We affirm.

On 23 February 1998, defendant was arrested for obtaining property by false pretenses in violation of N.C.Gen.Stat. § 14-100 (1993). Her bond initially was set at $500,000, but later was reduced to $50,000 on condition that she be placed under house arrest and electronic surveillance pending disposition of her case. On 27 February 1998, she was released into the monitoring program, and on 18 September 1998, she pled guilty to eight counts of embezzlement. Five counts, which fell under the Structured Sentencing Act, were consolidated for sentencing, and the court imposed an active term of five to six months. The remaining three counts, which fell under the Fair Sentencing Act, also were consolidated for sentencing, and the court imposed a term of nine years. For the latter three counts, the court suspended imposition of the sentence and placed defendant on supervised probation for five years.

Thereafter, defendant was transported to the North Carolina Correctional Institution for Women. She stated during an orientation session that she had not received credit for time served prior to her conviction, and in fact both judgment forms prepared after her sentencing state that she was to be given credit of "0 days spent in confinement prior to the date of [ ] Judgment." Accordingly, prison personnel prepared, and defendant signed, a Request for Pre-Trial Credit form, which was forwarded to the office of the Wake County Clerk of Superior Court. Although the deputy clerk who received the form had no independent recollection of the incident, she apparently contacted the Wake County Sheriff's Department to determine whether defendant had spent time in custody prior to sentencing. Based on the information she received, the deputy clerk prepared an "Order Providing Credit Against Service of Sentence" crediting defendant with 211 days for "time spent in custody awaiting trial." This credit included the time defendant spent under house arrest prior to trial. The trial court signed the order on 6 October 1998, and defendant was released shortly thereafter because the time credited exceeded her maximum active sentence.

On or about 30 October 1998, the Wake County District Attorney's Office became aware that defendant was no longer incarcerated. After investigating the circumstances of her release, the district attorney on 5 November 1998 filed with the court a document titled "Motion To Correct Judgment," asserting that defendant was not eligible for credit for time spent under house arrest and electronic monitoring. On 9 December 1998, the trial court held a hearing on the motion and, on 18 December 1998, entered an order in which it vacated its earlier order, gave defendant credit for time actually spent in Wake County jail, struck credit for time spent in home detention, and ordered defendant to return to the Department of Corrections to serve the remainder of her active sentence. In its order, the trial court noted that the State's motion was actually a motion to correct the 6 October 1998 order awarding defendant credit spent in pretrial custody, rather than a motion to correct judgment. The court additionally indicated that when it signed the earlier order, it was unaware that the number of days credited to defendant in the order prepared by the clerk included time spent under house arrest and electronic monitoring. Upon defendant's appeal, the order returning defendant to custody was stayed.

We note initially that the State has filed a motion to dismiss defendant's appeal, asserting that, pursuant to N.C.Gen.Stat. § 15A-1444 (1997), defendant has no statutory right of appeal. Section 15A-1444(a1) and (a2) sets out the circumstances under which a defendant may appeal as a matter of right:

(a1) A defendant who has been found guilty, or 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 trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may 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 under G.S. 15A-1340.14 or the defendant's prior conviction level under G.S. 15A-1340.21;

(2) Contains a type of sentence disposition that is not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level; or

(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level.

N.C.Gen.Stat. § 15A-1444(a1), (a2). Although we agree with the State that none of these conditions apply, in light of the issues presented, we elect to treat defendant's appeal as a petition for writ of certiorari and grant that petition. See N.C.R.App.P. 21; State v. Linemann, 135 N.C.App. 734, 522 S.E.2d 781 (1999).

As a second preliminary matter, we observe that the copy of the trial court's 18 December 1998 order contained in the record does not bear the clerk's stamp showing the filing date in accordance with N.C.R.App.P. 9(b)(3). However, because neither party has raised the absence of the stamp as an issue, and because the course of the proceedings is undisputed, we elect to suspend the requirement for the stamp pursuant to the discretionary authority accorded us by N.C.R.App.P. 2.

I.

Defendant first argues that the trial court improperly considered the State's "Motion To Correct Judgment." She contends that the exclusive means of obtaining relief from "errors committed in criminal trials and proceedings and other post-trial relief" are set forth in N.C.Gen.Stat. § 15A-1401 (1999) and that the State's motion was invalid because it was neither a motion for appropriate relief nor an appeal. Defendant additionally argues that, pursuant to N.C.Gen.Stat. § 15A-1416 (1999), the time for filing such a motion had expired when the court stripped defendant of jail credit for her time in home detention. The State responds that "[t]he trial court had the inherent authority to vacate its earlier order ex mero motu" and that its motion was merely a means of bringing to the trial court's attention an error in the 6 October 1998 order. We assume for the purposes of the following analysis that the court's granting of credit for time served under house arrest was a mistake. A detailed consideration of this issue may be found in Part II, below.

Although "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. Davis, 123 N.C.App. 240, 242-43, 472 S.E.2d 392, 393 (1996) (citations omitted), it "cannot, under the guise of an amendment of its records, correct a judicial error," id. at 243, 472 S.E.2d at 394 (citation omitted). Accordingly, we must determine whether the court's error in granting defendant credit for time served under house arrest was judicial or merely clerical.

"Clerical error" has been defined recently as: "An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination." Black's Law Dictionary 563 (7th ed.1999). Although this definition has not been adopted by our courts, and we do not adopt it now, the concept of "judicial reasoning or determination" as a component of a judicial action has been implicitly recognized in numerous appellate decisions.¹ In reviewing criminal convictions, our courts have found harmless clerical errors to include the inadvertent checking of a box finding an aggravating factor on a judgment form, see State v. Gell, 351 N.C. 192, 524 S.E.2d 332 (2000)

; reference in a bill of particulars to a wrong charge when the indictment indicated the proper charge, see State v. Parker, 119 N.C.App. 328, 459 S.E.2d 9 (1995); submission to the jury of a range of drug trafficking amounts differing from the range indicated in the indictment, see State v. McCoy, 105 N.C.App. 686, 414 S.E.2d 392 (1992); judgment mistakenly stating that prison term was imposed pursuant to plea agreement, see State v. Leonard, 87 N.C.App. 448, 361 S.E.2d 397 (1987); judgment erroneously stating conviction of wrong crime, see State v. Jamerson, 64 N.C.App. 301, 307 S.E.2d 436 (1983) (ordering new trial on other grounds, but indicating judgment needed to be corrected to show proper convictions).

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." State v. Morston, 336 N.C. 381, 410, 445 S.E.2d 1, 17 (1994). However, in the case at bar, the record demonstrates that the trial judge did not exercise any judicial discretion or undertake any judicial reasoning when signing the original "Order Providing Credit Against Service Of Sentence." The deputy clerk who received defendant's...