Heard in the Court of Appeals: April 9, 2014.
Pender County. Nos. 10 CRS 050584, 10 CRS 050585. Phyllis Gorham, Judge.
Attorney General Roy Cooper, by Assistant Attorney General Charlene Richardson, for the State.
Irons & Irons, P.A., by Ben G. Irons, II, for defendant-appellant.
Douglas Hendrick, Assistant Attorney General, Raleigh, NC.
ELMORE, Judge. Judges McCULLOUGH and DAVIS concur.
Appeal by defendant from judgments entered 15 March
2013 by Judge Phyllis Gorham in Pender County Superior Court.
Christopher Aaron Rouse (defendant) appeals from two judgments entered after a resentencing hearing. Because the denial of defendant's right to counsel at resentencing constitutes structural error, we vacate the trial court's judgments and remand for further proceedings.
On 26 April 2011, defendant pled guilty to five counts of second-degree sexual exploitation of a minor committed in November of 2009, and to attaining habitual felon status. He was represented at this proceeding by appointed counsel Tonya Turner. As specified in the parties' plea arrangement, the trial court sentenced defendant in the mitigated range to two consecutive active prison terms of 77 to 102 months.
Defendant did not pursue an appeal. In 2012, however, he filed a motion for appropriate relief (" MAR" ) in superior court challenging, inter alia, the calculation of his prior record level (" Level" ). The State conceded in response that, owing to an error on the sentencing worksheet, " [d]efendant was sentenced at Level III (5 points), but should have been sentenced at Level II (3 points)." Citing its authority to correct errors of law " on its own motion after entry of judgment[,]" see N.C. Gen. Stat. § 15A-1420(d) (2013), the trial court allowed defendant's MAR in part and ordered that his case " be calendared for resentencing without unnecessary delay."
At his resentencing hearing on 15 March 2013, defendant appeared " unrepresented" by counsel. Upon inquiry by the prosecutor and the trial court, defendant acknowledged that he had prior misdemeanor convictions for possession of drug paraphernalia, misdemeanor larceny, and domestic criminal trespass, and that these convictions resulted in " three prior [record] points, placing [him] at level two for punishment purposes." Despite the absence of evidence or stipulation, the trial court found as a mitigating factor that defendant has a support system in the community. See N.C. Gen. Stat. § 15A-1340.16(e)(18) (2013). After hearing from the parties, the trial court again sentenced defendant to two consecutive mitigated sentences of 77 to 102 months, as provided by his plea agreement. The judgments entered by the trial court at resentencing reflect defendant's Level II status based on three prior record points.
Defendant filed a timely pro se notice of appeal on 22 March 2013. The trial court signed appellate entries on 15 April 2013, appointing the Appellate Defender to represent defendant on appeal. After filing the record in this Court, counsel filed a petition for writ of certiorari as an alternative basis for appellate review. While acknowledging certain technical deficiencies in defendant's notice of appeal, defense counsel asked this Court to review the judgments pursuant to N.C.R. App. P. 21(a)(1), in order to address " constitutional issues" including the violation of defendant's right to counsel at resentencing. The State opposed this Court's issuance of the writ, arguing that denial of counsel is not a ...