State v. Murphy

261 N.C.App. 78

819 S.E.2d 604

STATE of North Carolina

v.James Lee MURPHY

No. COA17-1287

Court of Appeals of North Carolina.

Filed: August 21, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Kacy L. Hunt, for the State.

The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant.

ELMORE, Judge.

Defendant James Lee Murphy appeals criminal judgments entered upon his guilty pleas to seven counts of felony breaking and entering into seven different residences on different dates, and a civil judgment ordering he pay $23,113.00 in restitution to fourteen alleged victims identified in the State's restitution worksheet. In return for defendant's pleas and his stipulation to restitution as provided in the State's restitution worksheet, the State dismissed thirteen indictments against him, three of which contained the only charges linked to losses suffered by four of the fourteen alleged victims to whom the trial court ordered he pay restitution.

On appeal, defendant challenges the factual basis for two of his seven pleas and the validity of the trial court's restitution order. Despite defendant's failure to give notice of appeal at sentencing, N.C. R. App. P. 4(a), we allow his petition to issue a writ of certiorari solely to review the restitution order and address his arguments that (1) the trial court lacked authority to order restitution as to the four victims not affected by the seven breaking-and-entering counts to which he pled guilty; and (2) since the invalidly ordered restitution was part of the plea agreement, his entire plea agreement must be set aside and the case remanded for new proceedings.

Because a trial court is only statutorily authorized to order restitution for losses attributable to a defendant's perpetration of crimes for which he or she is convicted, we hold the trial court invalidly ordered defendant to pay restitution for pecuniary losses arising from his alleged perpetration of the charges in the three indictments the State dismissed pursuant to the plea agreement. Additionally, although defendant stipulated to this invalidly ordered restitution in the plea agreement, a stipulation to restitution is not an express agreement to pay restitution, and we therefore hold that defendant's entire plea agreement need not be set aside. Accordingly, we vacate the restitution order and remand for resentencing only on the issue of restitution.

I. Background

From 8 August 2016 to 27 February 2017, defendant was indicted for multiple breaking-and-entering and related larceny charges, including offenses defendant allegedly perpetrated at ten different residences on different dates. On 21 March 2017, defendant entered in a plea agreement in which he pled guilty to seven felony breaking-and-entering charges at seven of the ten residences and stipulated to restitution as provided in the State's restitution worksheet; in return, the State dismissed the remaining indictments, including the offenses defendant allegedly perpetrated at the other three residences. In the transcript of plea, the plea arrangement provides that "[defendant] will plea to 7 counts of breaking and/or entering in lieu of the charges listed on the back of this transcript[,]" and defendant checked the following box: "The defendant stipulates to restitution to the party(ies) in the amounts set out on ‘Restitution Worksheet, Notice And Order (Initial Sentencing)’ (AOC-CR-611)." The restitution worksheet listed fourteen alleged victims—ten of whom were linked to the seven residences defendant pled guilty to breaking into and entering; four of whom were linked to the three residences defendant was charged with breaking into and entering, but the State dismissed pursuant to the plea agreement.

On 22 March 2017, the trial court at the plea hearing described the entire plea agreement as follows: "And the plea bargain is that upon your plea of guilty to these seven charges the State will dismiss all other charges[.]" After accepting defendant's guilty pleas, the trial court during sentencing ordered that

[a]s a condition of work release and post-trial release, the Defendant is to make restitution to Shelton [sic] Dancy in the amount of $1706.00; Sheldon Jordan in the amount of $600.00; to Brice Wagoner, [sic] $600.00; to Ciandra [sic] Carmack, $1750.00; to Jeremy Williams and Tomika [sic] Brimmage [sic] ... $4125.00; to Jasmine Howard, $997.00; Randy Robertson, $1050.50; to Carmen [sic] Keeter, $650.00; to Jose Martinez, $1400.00; to Natalie Day, $1735.00; to Shaquela [sic] Day, $1000.00; to Jordan Hostetler, $500.00.

That same day, the trial court entered a civil judgment ordering defendant to pay, inter alia , $23,113.00 in restitution; and criminal judgments imposing seven consecutive sentences of eight to nineteen months in prison, recommending work release, and recommending payment of the civil judgment as a condition of defendant's probation and to be taken from his work-release earnings. Seven days later, on 29 March, defendant returned to the trial court requesting a reconsideration of his sentence. When the trial court denied his request, defendant gave oral notice of appeal.

II. Errors Raised

On appeal, defendant asserts the trial court erred by (1) accepting his guilty pleas because two of the seven felony breaking-and-entering counts were factually unsupported, and (2) ordering he pay restitution to alleged victims of the charges dismissed by the State pursuant to the plea agreement.

III. Appellate Jurisdiction

Defendant concedes his right to appellate review is contingent upon this Court granting his petition for certiorari review because, as a guilty pleading defendant, he has no statutory right to challenge the factual basis for his pleas, see N.C. Gen. Stat. § 15A-1444(e) (2017), and, further, he violated our Appellate Procedure Rule 4(a) by failing to give oral notice of appeal at sentencing, see N.C. R. App. P. 4(a) (requiring in part "oral notice of appeal at trial"). Accordingly, defendant has petitioned this Court to issue a writ of certiorari in order to enable us to conduct a merits review of the two main issues he raises on appeal. See N.C. Gen. Stat. § 15A-1444(e) (permitting a defendant to "petition the appellate division for review [of whether his or her guilty pleas were supported by a sufficient factual basis] by writ of certiorari"); N.C. R. App. P. 21(a)(1) (granting this Court authority to issue a writ of certiorari "in appropriate circumstances" to review lower court judgments and orders, including but not limited to "when the right to prosecute an appeal has been lost by failure to take timely action[.] ...").

After carefully considering the arguments presented in defendant's principal and reply briefs, and in his petition, we conclude there is no merit to his challenges to the factual bases of his pleas and thus decline to exercise our discretion to issue a writ of certiorari to address the first issue he presents. However, because we conclude defendant's challenges to the restitution order have merit, we exercise our discretion to issue a writ of certiorari in order to review the restitution order and address the merits of the second issue he presents. See, e.g. , State v. Ross , 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016) ("The decision concerning whether to issue a writ of certiorari is discretionary, and thus, the Court of Appeals may choose to grant such a writ to review some issues that are meritorious but not others for which a defendant has failed to show good or sufficient cause." (citing Womble v. Moncure Mill & Gin Co. , 194 N.C. 577, 579, 140 S.E. 230, 231 (1927) ).

IV. Analysis

Defendant argues (1) trial courts have no authority to order restitution to victims of unconvicted crimes and, therefore, the trial court here invalidly ordered he pay restitution to alleged victims of the charges the State dismissed pursuant to the plea agreement; and (2) because this invalidly awarded restitution was part of the plea agreement, the proper remedy on appeal is to vacate his entire plea agreement and remand for new proceedings.

The State does not address the trial court's statutory authority to award restitution to victims of unconvicted crimes; rather, it argues, (1) because defendant in his plea agreement stipulated to restitution to those victims, the State was relieved of its burden to present evidence to support restitution and thus the restitution ordered should be affirmed; and (2) even if restitution was invalidly awarded to alleged victims of charges the State dismissed, the proper remedy here is not to set aside the entire plea agreement but to vacate the restitution order and remand for resentencing solely on the issue of restitution.

We agree with defendant that the restitution ordered to the four victims for pecuniary losses linked only to defendant's conduct in allegedly perpetrating the crimes charged in the three dismissed indictments was invalid. However, we agree with the State that the proper remedy is not to set aside the entire plea agreement but to vacate the restitution order and remand for resentencing solely on restitution.

A. Restitution

N.C. Gen. Stat. § 15A-1340.34 governs "[r]estitution generally" and instructs that "[w]hen sentencing a defendant convicted of a criminal offense , the court shall determine whether the defendant shall be ordered to make restitution to any victim of the offense in question." Id. § 15A-1340.34(a) (2017) (emphasis added). Our guilty plea statute, while not using the term "convicted," provides that a "proposed plea arrangement may include a provision for the defendant to make restitution ... to ... aggrieved ... parties for the ... loss caused by the ... offenses committed by the defendant." N.C. Gen. Stat. § 15A-1021(c) (2017) (emphasis added). Similarly, our statute governing conditions of probation provides that, "[a]s a condition of probation, a defendant may be required to make restitution ... to ... aggrieved ... parties ......