State v. Lebeau, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020)

(1) When the defendant was convicted of drug trafficking, the sentence initially announced by the trial judge was “a mandatory 70 months” of active imprisonment. The following Monday (five days later), without the defendant being present, the court entered an amended judgment stating both the minimum and maximum sentence: 70 to 93 months. The defendant argued on appeal that the trial court lacked jurisdiction to amend the sentence when it did because the defendant had already appealed by that point. The Court of Appeals disagreed, concluding that, under G.S. 15A-1448(a)(3), the jurisdiction of the trial court is divested when notice of appeal has been given and the time for giving notice of appeal has expired. For an appeal to the appellate division, that time period is 14 days. N.C. R. App. P. 4(a)(2). Because only 5 days had passed at the time of change, the time for appeal had not expired, and the trial court therefore retained jurisdiction.

(2) The defendant argued in the alternative that amending the judgment in her absence deprived her of her right to be present at sentencing. The appellate court again disagreed, concluding that the amended judgment did not amount to a “substantive change” to the original sentence. Because the 93-month maximum that accompanies a 70-month minimum is statutorily required under G.S. 90-95(h)(4), it was not the product of judicial discretion. The record showed that the trial court understood from the outset that the sentence was statutorily mandatory, and the amendment was therefore clerical in nature and not a substantive change.