State v. Ross

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1162

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Cleveland County

Nos. 09 CRS 53903, 53906-07

TERRANCE JAVARR ROSS

Appeal by defendant from judgments entered 18 April 2013 by

Judge J. Thomas Davis in Cleveland County Superior Court. Heard

in the Court of Appeals 26 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General

Joseph L. Hyde, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate

Defender Barbara S. Blackman, for defendant.

HUNTER, Robert C., Judge.

Defendant Terrance Javarr Ross appeals from judgments

sentencing him based upon convictions for attempted bribery of a

juror, felony obstruction of justice, and solicitation to commit

bribery of a juror. Because the trial court did not consider an

irrelevant and improper matter at sentencing, and did not abuse

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its discretion by imposing consecutive sentences upon defendant,

we find no error.

Background

On 20 July 2009, a grand jury returned indictments charging

defendant with attempted bribery of a juror, felony obstruction

of justice, and solicitation to commit bribery of a juror. A

jury subsequently found defendant guilty of those charges, and

defendant entered a guilty plea to a charge of having attained

the status of an habitual felon. The trial court sentenced

defendant as an habitual felon to three concurrent sentences of

120 to 153 months imprisonment based upon each of the

convictions.

Defendant appealed, and this Court concluded, in part, that

the trial court lacked jurisdiction over the habitual felon

charge because the habitual felon indictment had been returned

before defendant committed the crimes for which the jury found

him guilty. State v. Ross, ___ N.C. App. ___, 727 S.E.2d 370

(2012), disc. review denied, 366 N.C. 570, 738 S.E.2d 369

(2013). This Court vacated the judgments entered against

defendant and remanded this cause for resentencing within the

appropriate sentencing ranges. Id. at __, 727 S.E.2d at 375.

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The trial court entered new judgments on 18 April 2013,

sentencing defendant to consecutive terms of 21 to 26, 15 to 18,

and 15 to 18 months imprisonment based upon his convictions.

Defendant’s sentences were also set to begin at the expiration

of all sentences to which he was then obligated to serve. On 26

April 2013, defendant filed written notice of appeal from the

judgments.

Discussion

We first address whether defendant’s notice of appeal is

sufficient to confer jurisdiction over his appeal onto this

Court. Rule 4 of the North Carolina Rules of Appellate

Procedure provides, in part, that a written notice of appeal

from a criminal judgment must be served upon all adverse

parties, designate the judgments from which the appeal is taken,

and identify the court to which the appeal is taken. N.C. R.

App. P. 4(a),(b) (2013). A defendant’s failure to comply with

the mandatory provisions of Rule 4 divests this Court of

jurisdiction to hear the appeal. State v. Hughes, 210 N.C. App.

482, 484, 707 S.E.2d 777, 778 (2011); see also Dogwood Dev. &

Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197-98,

657 S.E.2d 361, 365 (2008) (“A jurisdictional default . . .

precludes the appellate court from acting in any manner other

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than to dismiss the appeal. Stated differently, a jurisdictional

default brings a purported appeal to an end before it ever

begins.” (citations and quotation marks omitted)).

Defendant’s pro se written notice of appeal does not

identify the court to which his appeal is taken, was not served

on the State, and does not properly identify all of the

judgments from which he appeals. Thus, we must dismiss

defendant’s appeal for lack of jurisdiction. However, in the

interest of justice and in our discretion, we allow defendant’s

petition for the issuance of a writ of certiorari and reach the

merits of his arguments on appeal.

On appeal, defendant argues the trial court erred and

abused its discretion in sentencing him to consecutive sentences

at the maximum end of the presumptive range. Defendant first

argues the State introduced irrelevant and unfair considerations

into the resentencing process when it urged the trial court to

sentence defendant to consecutive sentences at the maximum end

of the presumptive range because defendant qualified as an

habitual felon. Defendant contends the State’s sentencing

requests sought to atone for its error in obtaining the habitual

felon indictment and failed “to impose a punishment commensurate

with the injury the offense has caused[.]” N.C. Gen. Stat. §

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15A-1340.12 (2013). Defendant further contends that because

nothing about his offenses or himself objectively warranted

deviating from the middle of the available presumptive range,

the State’s comments regarding his qualification for habitual

felon status offended the “public sense of fair play.”

Defendant’s arguments are misplaced.

“When a sentence is within the statutory limit it will be

presumed regular and valid unless ‘the record discloses that the

court considered irrelevant and improper matter in determining

the severity of the sentence.’” State v. Davis, 167 N.C. App.

770, 775, 607 S.E.2d 5, 9 (2005) (quoting State v. Johnson, 320

N.C. 746, 753, 360 S.E.2d 676, 681 (1987)). “If the record

discloses that the court considered irrelevant and improper

matter in determining the severity of the sentence, the

presumption of regularity is overcome, and the sentence is in

violation of [the] defendant’s rights.” State v. Boone, 293

N.C. 702, 712, 239 S.E.2d 459, 465 (1977). Where “the record

reveals no such express indication of improper motivation,” the

defendant is not entitled to a new sentencing hearing. Johnson,

320 N.C. at 753, 360 S.E.2d at 681.

Here, the record contains no express indication of improper

motivation. The State’s comment that defendant qualified as an

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habitual felon cannot be considered an irrelevant and improper

matter in defendant’s sentencing. In calculating a defendant’s

prior record level, trial courts routinely see information that

indicates whether or not a defendant would qualify as an

habitual felon. It is clear that a trial court may not sentence

a defendant as an habitual felon without a proper conviction for

attaining that status. However, there is nothing that prohibits

a trial court from considering the number and nature of a

defendant’s prior convictions when it decides which specific

sentence to select within the discretionary range of minimum

terms established by a defendant’s prior record level and class

of offense. State v. Oakes, ___ N.C. App. ___, ___, 724 S.E.2d

132, 137-38 (2012); see also State v. Parker, 143 N.C. App. 680,

685-86, 550 S.E.2d 174, 177 (2001) (“The Structured Sentencing

Act clearly provides for judicial discretion in allowing the

trial court to choose a minimum sentence within a specified

range.”). The trial court’s imposition of the maximum possible

sentence in the presumptive range, as requested by the State,

was within its discretion, so defendant has not met his burden

of showing his sentences are based on irrelevant or

impermissible factors.

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Defendant also argues that consecutive sentences were not

warranted in his case based on the nonviolent nature of his

offenses and the fact that all of them arose out of the same

conduct. However, “[i]t is well established that the decision

to impose consecutive or concurrent sentences is within the

discretion of the trial judge and will not be overturned absent

a showing of abuse of discretion.” State v. Espinoza–

Valenzuela, 203 N.C. App. 485, 497, 692 S.E.2d 145, 154, disc.

review denied, 364 N.C. 328, 701 S.E.2d 238 (2010). Defendant

cites to no authority, and we know of none, that suggests it is

an abuse of discretion to impose consecutive sentences based

upon convictions for committing non-violent offenses, and

defendant concedes that his conduct constituted the distinct

offenses for which the jury found him guilty.

Conclusion

We hold defendant has not shown the trial court abused its

discretion in sentencing defendant to consecutive sentences, and

we find no error in the judgments entered.

NO ERROR.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).