State v. Lewis

• Decision Date: 07 June 2016
• Docket Number: No. COA15-1182,COA15-1182
• Court: North Carolina Court of Appeals
• Parties: STATE OF NORTH CAROLINA v. BREWSTER EDWARD LEWIS, JR.

STATE OF NORTH CAROLINA v. BREWSTER EDWARD LEWIS, JR.

No. COA15-1182

COURT OF APPEALS OF NORTH CAROLINA

June 7, 2016

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Brunswick County, Nos. 15 CRS 50950-52

Appeal by Defendant by writ of certiorari from judgments entered 6 May 2015 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 25 April 2016.

Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.

Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for Defendant.

STEPHENS, Judge.

In this case, we allow in part Defendant's petition for writ of certiorari to consider his argument regarding an alleged sentencing error following his guilty pleas to a number of offenses. Because our review of the transcript of the sentencing hearing reveals a discrepancy between the legally correct sentences announced in open court and those that appear in the written judgments subsequently entered, we remand for correction of this clerical error.

Factual and Procedural Background

The charges against Defendant Brewster Edward Lewis, Jr., arose from events which occurred in Supply, North Carolina on 25 March 2015. Deputy Colton Robinson of the Brunswick County Sheriff's Department ("BCSD") responded to a domestic violence call at a home on Vale Street where he encountered Lewis. Robinson asked for and received consent to search Lewis's person. That search revealed a box of cigarettes with some items inside the clear cellophane wrapping around the box. When Robinson asked Lewis about the items, Lewis struck Robinson with a closed fist and attempted to flee on foot. Robinson deployed his Taser, striking Lewis, but Lewis continued to run away. Once Robinson caught up with Lewis again, a struggle ensued, with Robinson spraying Lewis with pepper spray in an effort to subdue him. The spray initially had no apparent effect on Lewis, who was able to take the pepper spray away from Robinson and use it against him. Lewis also managed to put Robinson in a headlock, squeezing his neck.

BCSD Deputy Charles Melvin arrived on the scene at this point and attempted to stop Lewis's assault on Robinson by using his Taser. Lewis then shifted his assault to Melvin, before Melvin and Robinson together were able to subdue Lewis, and, along with a third BCSD deputy who had arrived at the scene, managed to place Lewis into a BCSD patrol car. Lewis somehow managed to get the patrol car door open in an effort to escape, but was restrained and taken into custody.

On the same date,¹ Lewis was indicted on a total of six offenses as follows: in file number 15 CRS 50950, one count of felony assault by strangulation, one count of assault on a State officer, and one count of resisting a public officer, all related to Lewis's interaction with Robinson; in file number 15 CRS 50951, one count of assault on a State officer and one count of resisting a public officer, each related to Lewis's interaction with Melvin; and in file number 15 CRS 50952, one count of resisting a public officer, related to Lewis's interaction with the third officer. On 6 May 2015, Lewis entered guilty pleas to all charges at the criminal session of Brunswick County Superior Court before the Honorable Ola M. Lewis, Judge presiding. The court announced sentencing as follows:

THE COURT: All right. Stand up. Madam Clerk, in this case, on his plea of guilty, he is found guilty. The Court is going to enter the following judgment. I cannot give him more than 150 days on the misdemeanor assaults because, as I understand the law as it relates to misdemeanors, I can only consolidate or run consecutive [two] max . . . sentences, correct?

[THE STATE]: And also, Judge, I believe that you're going to have to arrest sentence. You're not going to be able to sentence for both resisting and assault, so you have to do the—we have two A1s.

THE COURT: So this is what I'm going to do. Madam Clerk, consolidate 15 CRS 50950 for purposes of sentencing, and then consolidate 50951 and 50952. Eachis a Class A1. Each is a Level II, and he has 75 days each on those counts, for a consecutive total of 150 days. We'll give him credit for time served in that case.

As to the assault by strangulation, it is a Class H, Level I. He is given a six-month minimum, 17-month maximum sentence on that case. It is consecutive to the misdemeanor sentences. . . .

The written judgments entered upon Lewis's convictions were: (1) 6-17 months in prison for the felony assault by strangulation conviction in file number 15 CRS 50950, (2) 75 days in the custody of the BCSD for the assault on a government official conviction in 15 CRS 50951, and (3) an additional 75 days in the custody of the BCSD, purportedly for the conviction for resisting a public officer in 15 CRS 50952.

Lewis's Petition for Writ of Certiorari

Lewis filed a written notice of appeal on 12 May 2015, but, as he concedes, the notice of appeal failed to correctly "designate the judgment . . . from which appeal is taken and the court to which appeal is taken . . . ." as required by North Carolina Rule of Appellate Procedure 4(b). N.C.R. App. P. 4(b). Recognizing this jurisdictional deficiency, see State v. Hughes, 210 N.C. App. 482, 484, 707 S.E.2d 777, 778 (2011), on 8 February 2016, along with his appellate brief, Lewis filed a petition for writ of certiorari in this Court. In his petition, Lewis asks this Court to issue the writ in order to reach the merits of his arguments on two issues: that the trial court erred in (1) imposing a sentence not authorized by law and (2) failing to withdraw his guilty pleas sua sponte after Lewis disputed some details in the State's summary of thefactual bases for his guilty pleas. On 3 March 2016, the State filed its response, conceding that this Court has the discretion to allow Lewis's petition, but requesting that we decline to consider his argument of error in the plea procedures, which the State characterizes as wholly frivolous. On 7 March 2016, Lewis's petition was referred to the panel assigned to hear Lewis's appeal.

Rule of Appellate Procedure 21(a) provides that issuance of the writ of certiorari is appropriate, inter alia, "when the right to prosecute an appeal has been lost by failure to take timely action . . . ." N.C.R. App. P. 21(a)(1). However, "[a] petition for the writ [of certiorari] must show merit or that error was probably committed below. Certiorari is a discretionary writ, to be issued only for good and sufficient cause shown." State v. Rouson, 226 N.C. App. 562, 563-64, 741 S.E.2d 470, 471 (citation and internal quotation marks omitted), disc. review denied, 367 N.C. 220, 747 S.E.2d 538 (2013).

Here, we agree with the State that Lewis's contention of reversible error in the plea proceedings is wholly frivolous. During the plea colloquy, Lewis admitted that he was guilty of all of the offenses against him and that there was a factual basis for each charge. However, after the State presented a recitation of the factual basis for each charge, the following exchange took place:

THE DEFENDANT: All those charges that they have said, the statement that the police wrote, those are false allegations. The allegations are false.

THE COURT: Mr. Lewis, you have come in under oath and pled guilty.

THE DEFENDANT: Yeah, I understand, but those allegations are also. I mean, me spraying Deputy—I mean, how did they manage to get me under control if I sprayed them? They would have been—all that should have been in my motion and discoveries. Now you're telling me in their statements that I did this and I did that, which is all false.

THE COURT: Mr. Lewis, if you would like to withdraw your guilty plea and plead not guilty, we will enter a not guilty plea on the record today, and you can pick a jury of your peers.

THE DEFENDANT: I mean, it's like—it's like, what I'm seeing is I'm in a lose-lose situation regardless. I can't pay for a lawyer.²

THE COURT: Let me tell you this—

THE DEFENDANT: I'm in a lose-lose situation, but it is what it is.

THE COURT: All right. Stand up.

The trial court then proceeded with entry of judgment and sentencing. In his appellate argument, Lewis argues that the court should have withdrawn his guilty pleas sua sponte and compelled him to go to trial against his will, but admits that he "cannot find any case in this jurisdiction where this issue has been discussed and ruled on by an appellate court of this [S]tate." Nor does Lewis cite authority fromany other jurisdiction in support of his position. Indeed, the only authorities cited by Lewis in his brief concern (1) the requirement that the trial court determine there is a factual basis before accepting a guilty plea and (2) motions...