Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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In this Onslow County case, defendant appealed his convictions for statutory rape, incest, and indecent liberties with a child. Defendant argued (1) a missing page of the transcript justified a new trial; (2) error in denying his motion to dismiss the incest charge; (3) error in denying his motion to suppress; and (4) a clerical error in the judgment required remand. The Court of Appeals did not find justification for a new trial or error with denial of the motion to suppress, but did vacate defendant’s incest conviction and remanded the case for correction of the clerical error on the judgment and resentencing.
In 2018, the 15-year-old victim of defendant’s sexual advances moved in with defendant and his wife in Jacksonville. The victim is the daughter of defendant’s wife’s sister, making her defendant’s niece by affinity, not consanguinity. During several encounters, defendant made sexual advances and eventually engaged in sexual contact with the victim, and she reported this conduct to her father, who called the police. Prior to his trial, defendant moved to suppress statements made to after his arrest by the Onslow County Sheriff’s Office, but the trial court denied the motion.
Reviewing (1), the Court of Appeals explained that a missing page from a trial transcript does not automatically justify a new trial. Instead, the applicable consideration is whether the lack of a verbatim transcript deprives the defendant of a meaningful right to appeal, and the court looked to the three-part test articulated in State v. Yates, 262 N.C. App. 139 (2018). Because defendant and his counsel “made sufficient reconstruction efforts that produced an adequate alternative to a verbatim transcript, he was not deprived of meaningful appellate review.” Slip Op. at 9.
Turning to (2), the incest charge, the court agreed with defendant that “the term ‘niece’ in [G.S.] 14-178 does not include a niece-in-law for the purposes of incest.” Id. The opinion explored the history of the incest statute and common law in North Carolina in extensive detail, coming to the conclusion that a niece-in-law does not represent a niece for purposes of criminal incest. As an illustration of the “absurd results” under North Carolina law if a niece by affinity were included, “an individual could marry their niece-in-law . . . [but] that individual would be guilty of incest if the marriage were consummated.” Id. at 20. As a result, the court vacated defendant’s incest conviction.
Considering (3), inculpatory statements made by defendant after his arrest, the court considered defendant’s arguments that the findings of fact were incomplete, and that the evidence did not support that he made the statements voluntarily. The court disagreed on both points, explaining that findings of fact “need not summarize all the evidence presented at voir dire,” as long as “the findings are supported by substantial and uncontradicted evidence, as they are here.” Id. at 26. As for the voluntariness of the statements, the court detailed several different points where defendant received Miranda warnings, signed an advisement of rights form, and even made a joke about being familiar with the rights through his work as an active duty marine with a law enforcement role.
For defendant’s final issue (4), the clerical error, the court agreed with defendant that the trial court had orally dismissed the sexual activity by a substitute parent charge prior to sentencing. Although the jury did convict defendant of this charge, the transcript clearly indicated the trial court dismissed the charge before consolidating the other charges for sentencing. Looking to the rule articulated in State v. Smith, 188 N.C. App. 842 (2008), the court found that remand for correction was the appropriate remedy for the clerical error in the judgment to ensure the record reflected the truth of the proceeding.
The defendant was convicted of obtaining property by false pretenses for selling boxes purportedly containing iPhones that contained only lug nuts. The defendant argued that the sentence of 36 months supervised probation was erroneous because the trial judge imposed a community punishment, which has a limit of 30 months probation. The Court of Appeals found that the trial judge imposed an intermediate punishment; the only indication to the contrary was a checkmark in the box for community punishment at the top of the judgment. Considering the sentencing hearing, the conditions imposed by the trial judge in the defendant’s presence, and the written judgment, the Court concluded that the mark in the community punishment box was a clerical error and remanded the case for correction.
(1) The defendant was convicted of drug offenses in Gaston County on July 5, 2017 and was sentenced to 24 months of supervised probation. After reporting for his intake visit with a Gaston County probation officer, the defendant avoided probation officers for several months. Probation officers attempted on six separate occasions to verify defendant’s residence at the address he provided. He was not present for any of these visits. On two of the visits, individuals who knew the defendant told the officers that the defendant no longer lived at the residence or that he planned to move from the residence.
Despite being on notice to maintain regular contact with probation officers, no probation officer met with the defendant in person following his initial intake visit before the first violation report alleging absconding was filed on September 14, 2017. On the few occasions that a probation officer could reach the defendant by phone, the officer notified the defendant that a home visit was scheduled. The defendant was absent from the home on those occasions and failed to apprise his probation officer of his whereabouts.
Even after the defendant was released from custody after being arrested for alleged probation violations relating to absconding, he failed to report to his probation officer within 24 hours as instructed. After defendant’s case was transferred from Gaston County to Lincoln County in March 2018, officers continued to have difficulty contacting him. And he failed to notify officers upon getting evicted from his listed residence.
An addendum was filed to the defendant’s probation violation report on May 31, 2018 alleging an additional incident of absconding. The trial court found that the defendant violated his probation by absconding and ordered his probation revoked. The defendant appealed, arguing that the trial court erred in revoking his probation based on its finding that he willfully absconded from supervision.
The Court of Appeals found the State’s allegations and supporting evidence––reflecting defendant’s continuous, willful pattern of avoiding supervision and making his whereabouts unknown––sufficient to support the trial court’s exercise of discretion in revoking defendant’s probation for absconding.
(2) The trial court checked the box on the judgment form stating that the defendant waived a violation hearing and admitted the violations. This was inaccurate, as the record reflects that the defendant was present for his probation hearing and testified as a witness. The Court of Appeals determined that the trial court committed a clerical error when it checked the box indicating otherwise and remanded the case to allow the trial court to correct the error.
The court remanded for correction of two clerical errors. The first error was that the trial court inadvertently checked the box on the Judgment form indicating that it made no written findings because the sentence imposed was within the presumptive range but in fact the trial court sentenced the defendant to an aggravated sentence. The second error was that the form used to arrest judgment mistakenly listed the wrong offense.
Finding that the trial court did not abuse its discretion by revoking the defendant’s probation, the court remanded for correction of a clerical error. Specifically, the trial court checked the wrong box on the judgment form indicating the basis for the probation revocation.
The court remanded to the trial court to correct a clerical error in a written order. After the jury convicted the defendant of first-degree felony-murder, armed robbery, and felony possession of a firearm, the trial court rendered an oral ruling arresting judgment on the armed robbery conviction. However the written order arresting judgment reflects the correct file number but incorrectly lists the offense arrested as the weapons charge. The court remanded for correction.
Where the record was inconsistent and unclear as to whether the defendant pled guilty to felony possession of marijuana, the court vacated a judgment for that offense and remanded, directing the trial court to “take the necessary steps to resolve the discrepancy between the transcript of plea and the written judgment.” The court rejected the defendant’s argument that the issue was simply a clerical error, finding: “on the basis of the record as presently constituted, it is not possible to determine whether judgment was properly entered on the charge of felony possession of marijuana.” A dissenting judge asserted that judgment should “simply be arrested as to [the possession] charge, or the matter should be remanded for correction of the clerical error.”
Over a dissent, the court rejected the defendant’s argument that there was a clerical error in the judgment. Although the trial court stated after the jury returned the verdict that it was “going to arrest judgment” on the trafficking by delivery charge, the trial court did not pronounce the sentence at that time because the defendant failed to appear. At a sentencing hearing held several weeks later, the trial court noted that the defendant had been found guilty on three trafficking counts--including trafficking by delivery--and consolidated the trafficking offenses into one judgment. The judgment form reflects that the three offenses were so consolidated. The trial court’s failure to arrest judgment on the trafficking by delivery offense was not a clerical error.
The defendant was properly required to register as a sex offender and submit to SBM. Although the trial court mistakenly found that the defendant had been convicted of an offense against a minor, the error was clerical where other findings were made that would require the defendant to register and submit to SBM and the defendant did not dispute these findings.
Where a plea agreement contemplated that the defendant would be sentenced to community punishment and the trial court indicated that it was so sentencing the defendant, the court remanded for correction of a clerical error in the judgment stating that the sentence was an intermediate one.
The trial court made clerical errors in sentencing. It made a clerical error when it stated that it was arresting judgment on convictions vacated by the court of appeals; in context it was clear that the trial court meant to state that it was vacating those convictions. The trial court also erred by mentioning that it was arresting another conviction when that conviction had not in fact been vacated by the appellate court. The court remanded for correction of these errors.
Where the judgment form mistakenly contained a reference to “Assault with a Deadly Weapon,” a charge on which the defendant was acquitted, but where the error did not affect the sentence imposed, the court remanded for correction of this clerical error. The court rejected the defendant’s argument that the error entitled him to a resentencing.
Where the trial court miscalculated the defendant’s prior record level but where a correction in points would not change the defendant’s sentence, the court treated the error as clerical and remanded for correction. A dissenting judge would have concluded that the error was judicial not clerical.
The court remanded for correction of a clerical error. Specifically, the trial court found at the sentencing hearing that the defendant was a PRL IV offender and ordered him to pay $6,841.50 in attorney’s fees. However, the judgment incorrectly listed him at PRL II and stated that the defendant owes $13,004.45 in attorney’s fees (the amount owed by his co-defendant).
The court remanded for correction of a clerical error where the defendant was convicted of assault with a deadly weapon but the trial court entered judgment for AWDWIK.
Where the trial court determined that the defendant had 16 prior record points and was a prior record level V but the judgment indicated that he had 5 prior record points and was a prior record level III, the entries on the judgment were clerical errors.
A clerical error occurred where the trial court found that it could revoke the defendant’s probation under the Justice Reinvestment Act because the defendant was convicted of another criminal offense while on probation but checked the box on the form indicating that the revocation was based on the fact that the defendant had twice previously been confined in response to violations. Remanding for correction.
A clerical error occurred in a Fair Sentencing Act case when the trial court found an aggravating factor and went on to sentence the defendant above the presumptive range but failed to check the box on the judgment indicating that the aggravating factor existed. The court remanded for correction of the error.
The court remanded for correction of a clerical error where the trial court announced a fine of $100 but the judgment incorrectly reflected a $500 fine.
Where the trial judge erroneously sentenced the defendant to an aggravated term without finding that an aggravating factor existed and that an aggravated sentence was appropriate, a second judge erroneously treated this as a clerical that could be corrected simply by amending the judgment.
In dicta, the court noted that the trial judge was entitled to modify her ruling on a suppression motion because court was still in session.
The court remanded to the trial court for correction of a clerical error in the judgment so that the judgment would reflect the offense the defendant was convicted of committing (trafficking by transportation versus trafficking by delivery).
In a case in which the defendant was sentenced as a Class C habitual felon, the court remanded for correction of a clerical error regarding the felony class of the underlying felony.
Trial judge’s failure to mark the appropriate box in the judgment indicating that the sentence was in the presumptive range was a clerical error.
Listing the victim on the restitution worksheet as an “aggrieved party” was a clerical error.
The trial court committed a clerical error when, in a written order revoking probation, it found that the conditions violated and the facts of each violation were set forth in a violation report dated October 20, 2008, which was the date of a probation violation hearing, not a violation report.
The court treated as a clerical error the trial court’s mistake on the judgment designating an offense as Class G felony when it in fact was a Class H felony. The court remanded for correction of the clerical error.
On the judicial findings and order for sex offender form, the trial court erroneously indicated that the defendant had been convicted of an offense against a minor under G.S. 14-208.6(1i) when in fact he was convicted of a sexually violent offense under G.S. 14-208.6(5). The court remanded for correction of the clerical error.
When the trial court intended to check one box on AOC-CR-615 (judicial findings and order for sex offenders) but another box was marked on the form signed by the judge, this was a clerical error that could be corrected on remand.
The inclusion of an incorrect file number on the caption of a transcript of plea was a clerical error where the plea was taken in compliance with G.S. 15A-1022 and the body of the form referenced the correct file number.
Inadvertent listing of the wrong criminal action number on the judgment was a clerical error.
The trial court’s mistake of ordering SMB for a period of ten years (instead of lifetime registration) after finding that the defendant was a recidivist was not a clerical error.
The trial judge committed a clerical error when he entered judgment for a violation of G.S. 14-34.1(a), the Class E version of discharging a firearm into occupied property. The record showed that, based on the defendant’s prior record level, the judge’s sentence reflected a decision to sentence the defendant to the Class D version of this offense (shooting into occupied dwelling) and at sentencing the judge stated that the defendant was being sentenced for discharging a firearm into an occupied dwelling, the Class D version of the offense.