Opinion
No. COA09-1044
Filed 20 July 2010 This case not for publication
Appeal by defendant from judgments entered 14 January 2009 by Judge Laura A. Powell in Rutherford County District Court. Heard in the Court of Appeals 28 January 2010.
Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State. J. Edward Yeager, Jr. for defendant-appellant.
Rutherford County Nos. 08 CRS 54482 08 CRS 54483 08 CRS 54484 08 CRS 54485.
Defendant Kenneth Brian Phillips pled guilty to two counts of breaking and entering, two counts of larceny after breaking and entering, one count of obtaining property by false pretenses, and one count of uttering a forged instrument. Because our jurisdiction is limited on an appeal from a guilty plea, only defendant's argument regarding his prior record level is properly before the Court. As to that argument, we hold that defendant failed to establish that the record lacks evidence proving his prior record level. Therefore, we affirm.
Facts
Defendant was charged with two counts of breaking and entering, two counts of larceny after breaking and entering, one count of obtaining property by false pretenses, and one count of uttering a forged instrument. The State contended that on two occasions, defendant broke into a building occupied by Carolina Homes and Land Company, that he stole three checks, and that he forged and cashed those checks at an Ingles grocery store, receiving a total of $1,160.00.
On 14 January 2009, defendant entered into a plea agreement under which defendant pled guilty to all six charges. The parties agreed that the offenses would be consolidated so that defendant would receive a total of three sentences: one sentence for each breaking and entering of the building and the accompanying larceny charge and a third sentence for the charges of obtaining property by false pretenses and uttering a forged instrument. The State agreed not to pursue a charge that defendant was a habitual offender. Sentencing was to be in the discretion of the trial judge.
At the plea hearing, the trial judge reviewed the transcript of plea with defendant, and defendant agreed that the judge's description of the plea bargain was correct and complete, that defendant understood he was pleading guilty to six felonies, each of which carried a maximum possible sentence of 30 months, that defendant was guilty, and that there were facts to support the guilty plea. After the judge completed the transcript of plea, the following exchange took place:
[THE STATE]: Is there a stipulation for the factual basis?
[DEFENSE COUNSEL]: There is.
[THE STATE]: Your Honor, if I could approach?
THE COURT: Uh-huh.
[THE STATE]: Your Honor, the officer is here for a factual basis.
OFFICER: [Entire statement inaudible].
THE COURT: All right. Anything as to the factual basis?
[DEFENSE COUNSEL]: Nothing, Your Honor
[unintelligible].
THE COURT: Okay. Upon consideration of the record, proper evidence, the factual presentation offered, statesment [sic] — statements of the lawyer for the defendant and the prosecutor, the Court finds there is a factual basis for the entry of the plea; the defendant is satisfied with his lawyer's legal services; the defendant is competent to stand trial; the plea is the informed choice of the defendant; it's made freely, voluntarily, and understandingly.
The defendant's plea is hereby accepted by the Court and is ordered recorded.
As to sentencing, it appears he has 27 prior points, which makes him a Level Six.
Any dispute as to that, Mr. Burwell?
[DEFENSE COUNSEL]: [Inaudible].
THE COURT: Okay.
The court then sentenced defendant to three consecutive terms of 16 to 20 months imprisonment and ordered restitution in the amount of $1,160.00 to Ingles. Defendant timely appealed to this Court.
Discussion
It is well established that "[a] defendant's right to appeal a conviction is `purely statutory.'" State v. Corbett, 191 N.C. App. 1, 3, 661 S.E.2d 759, 761 (quoting State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995), aff'd per curiam, 342 N.C. 638, 466 S.E.2d 277 (1996)), aff'd per curiam, 362 N.C. 672, 669 S.E.2d 323 (2008). In North Carolina, "`a defendant who has entered a plea of guilty is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant has made an unsuccessful motion to withdraw the guilty plea.'" Id. (quoting State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002)).
Defendant's first two arguments — that the State failed to provide him with a complete trial transcript and he was not granted the chance to speak on his own behalf — do not fall within those issues properly the subject of an appeal after a guilty plea. This Court does not, therefore, have jurisdiction to consider those arguments.
Defendant also contends that the State failed to sufficiently prove his prior record level, an issue properly before the Court. See N.C. Gen. Stat. § 15A-1444(a2)(1) (2009). One of the ways that the State may prove a defendant's prior record level is by stipulation of the parties. See N.C. Gen. Stat. § 15A-1340.14(f)(1) (2009). In this case, the trial judge stated that defendant had 27 prior record points and had a prior record level of VI. The trial judge then asked defendant's attorney, "Any dispute as to that . . .?" Although the attorney's reply was inaudible, the trial judge responded, "Okay" and immediately proceeded to sentence defendant.
Defendant contends that the lack of an audible response in the transcript requires us to conclude that the State failed to prove his prior record level since there is no evidence of a stipulation. "[O]ur Supreme Court has held that the lack of a transcript does not prejudice the defendant when alternatives — such as a narrative of testimonial evidence compiled pursuant to Rule 9(c)(1) of the North Carolina Rules of Appellate Procedure — `are available that would fulfill the same functions as a transcript and provide the defendant with a meaningful appeal.'" State v. Hobbs, 190 N.C. App. 183, 186, 660 S.E.2d 168, 170 (2008) (quoting State v. Lawrence, 352 N.C. 1, 16, 530 S.E.2d 807, 817 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684, 121 S. Ct. 789 (2001)).
In Lawrence, 352 N.C. at 16, 530 S.E.2d at 817, after the tape recorder malfunctioned and the trial transcript was discovered to be incomplete, the State set out the unrecorded testimony in narrative form in the proposed record on appeal. Then, at a hearing to settle the record on appeal, two witnesses testified that the State's summary was an accurate reflection of their trial testimony, and the trial court settled the record as proposed by the State. Id. On appeal, the Court held that while the trial court failed to comply with its duty to provide the defendant with a complete transcript, the defendant was not entitled to relief because the narrative was a substantially equivalent and available alternative. Id. at 16-17, 530 S.E.2d at 817.
Here, defendant has failed to take any steps to reconstruct the portions of the transcript that were inaudible. It would have been easy for defendant's appellate counsel to ask trial counsel what he had said in response to the question. If defendant's trial counsel had not stipulated to the prior record level, then defendant would have established that no stipulation occurred. In the absence of a narration indicating what was actually said, we decline to presume that error occurred. We believe it is a more reasonable inference from the transcript that defendant's counsel stipulated to the prior record level. It seems unlikely that the trial judge would have responded "Okay" and proceeded immediately to sentencing without saying anything more if defense counsel had indicated, in response to the trial judge's question, that he disputed the prior record level. We, therefore, hold that defendant has failed to demonstrate that he is entitled to relief on appeal.
Affirmed.
Judge CALABRIA concurs.
Judge STEPHENS concurs in the result in a separate opinion.
Report per Rule 30(e).