{ "id": 4155675, "name": "STATE OF NORTH CAROLINA v. THADDEUS ANDRE SMITH, Defendant", "name_abbreviation": "State v. Smith", "decision_date": "2008-02-19", "docket_number": "No. COA07-487", "first_page": "842", "last_page": "846", "citations": [ { "type": "official", "cite": "188 N.C. App. 842" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "648 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639128 ], "year": 2007, "pin_cites": [ { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0841-01" ] }, { "cite": "493 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551138, 551077, 551207, 551251, 551284 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0263-05", "/nc/347/0263-03", "/nc/347/0263-02", "/nc/347/0263-04", "/nc/347/0263-01" ] }, { "cite": "486 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 800", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713506 ], "pin_cites": [ { "page": "802" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0800-01" ] }, { "cite": "361 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735771 ], "year": 2007, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0565-01" ] }, { "cite": "94 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "244 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219514 ], "year": 1956, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0399-01" ] }, { "cite": "522 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "784", "parenthetical": "quoting State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956)" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 734", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242869 ], "year": 1999, "pin_cites": [ { "page": "738", "parenthetical": "quoting State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0734-01" ] }, { "cite": "535 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12123845 ], "year": 2000, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0198-01" ] }, { "cite": "576 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "117-18", "parenthetical": "defining clerical error as \" 'an error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination' \" (quoting State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000))" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 172", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190048 ], "year": 2003, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0172-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 3, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] } ], "analysis": { "cardinality": 481, "char_count": 8711, "ocr_confidence": 0.736, "pagerank": { "raw": 7.953544547038886e-07, "percentile": 0.9732528807664076 }, "sha256": "cf389bd277bee461cdaf47e4999d741fba7128d975f2f489ed3cb3f315589c17", "simhash": "1:cd266c49c36e89fe", "word_count": 1403 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. THADDEUS ANDRE SMITH, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Thaddeus Andre Smith appeals from his conviction for driving while impaired and his sentence of two years minimum and two years maximum imprisonment. Defendant\u2019s primary argument on appeal is that the evidence does not support the trial court\u2019s finding of the two grossly aggravating factors specified on the trial court\u2019s sentencing form. There is no dispute that two grossly aggravating factors exist, and it is apparent from the record that the trial court simply inadvertently checked the wrong box on the form. We, therefore, remand for correction of that clerical error. Although defendant has also purported to appeal from the trial court\u2019s judgment imposing attorney\u2019s fees and appointment fees, since the record contains no notice of appeal from that judgment, we are required to dismiss that part of the appeal.\nThe State presented evidence at trial that tended to show the following facts. On 8 January 2006, a Cabarrus County deputy sheriff drove to Kannapolis to serve an arrest warrant on a Ms. Barriman. On his way to Ms. Barriman\u2019s home, he drove behind a vehicle that eventually pulled into Ms. Barriman\u2019s driveway. Defendant,'who appeared to be the driver, got out of the vehicle holding a can. When the officer asked to speak with defendant about Ms. Barriman, defendant threw down the can, which turned out to be a half-empty beer can.\nThe officer smelled alcohol on defendant\u2019s breath as he spoke with him and noticed that defendant\u2019s eyes were glassy and bloodshot. The officer suspected defendant had been driving while impaired and, after performing field sobriety tests, arrested defendant. Defendant ultimately had an Intoxilyzer test result of .10.\nAlthough defendant pled guilty to driving while impaired in Cabarrus County District Court, following sentencing, he gave notice of appeal to superior court for a trial de novo. After the jury found defendant guilty of driving while impaired, the State presented evidence during sentencing that defendant had two prior convictions for driving while impaired dated 14 February 2000 and 30 December 2003. In response, defense counsel argued that Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), required that a jury find beyond a reasonable doubt any grossly aggravating factors.\nThe trial court rejected defendant\u2019s argument on the grounds that Blakely permits a judge to determine issues related to a defendant\u2019s prior record. The court then found:\n[T]he defendant has \u2014 this, is his third offense of driving while impaired. Therefore, Level I punishment and that\u2019s within the past seven years. In fact, the first one, the conviction date was in 2000, February 14th of 2000. The second one is . . . December 30th, 2003 .... Therefore, Level I punishment is appropriate.\nSubsequently, when defense counsel asked if the trial court found \u201ctwo grossly aggravating factors, just the two prior DWIs,\u201d the trial court replied:\nYes, I did. Let\u2019s see. He has been convicted of a prior offense involving driving while impaired which occurred within seven years, that\u2019s (a). And (b), has two or more convictions. Wait a minute. Well, what you have, it should be (d), which says, if the defendant has two or more convictions within the past seven years, Level I punishment is required under those' circumstances. [] So that should be (d).\nOn the grossly aggravating factors section of the Administrative Office of the Courts form titled \u201cImpaired Driving Determination of Sentencing Factors\u201d (\u201cthe sentencing form\u201d), the trial court marked box l.a. that finds the defendant \u201chas been convicted of a prior offense involving impaired driving which conviction occurred within seven (7) years before the date of this offense.\u201d The trial court also marked box l.d. that finds the defendant \u201chas two or more convictions as described in No. l.c. (Level One punishment is required.).\u201d Box l.c. in turn finds that the defendant \u201chas been convicted of an offense involving impaired driving which conviction occurred after the date of the offense for which the defendant is being sentenced but before or contemporaneously with the sentencing in this case.\u201d Thus, by checking box l.d., the trial court effectively found that defendant had two convictions for impaired driving after the date of the offense in this case.\nAs the transcript of the sentencing hearing reveals, however, the trial court actually found that defendant had two or more convictions \"within the seven years prior to the date of the present offense. Defendant concedes the trial court properly found as the first grossly aggravating factor that he \u201chas been convicted of a prior offense involving impaired driving which conviction occurred within seven (7) years before the date of this offense.\u201d The trial court also orally found a second such conviction. The court should, therefore, have checked box l.b., stating that the defendant \u201chas two or more convictions as described in No. l.a.\u201d The transcript is clear that the trial court simply misread the sentencing form and checked the wrong box.\nAs such, the trial court committed a clerical error. See State v. Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18 (2003) (defining clerical error as \u201c \u2018an error resulting from a minor mist\u00e1ke or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination\u2019 \u201d (quoting State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000))). When, on appeal, a clerical error is discovered in the trial court\u2019s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record \u201c \u2018speak the truth.\u2019 \u201d State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999) (quoting State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956)). Accordingly, we remand for correction of the clerical error found on the sentencing form.\nIn his remaining argument, defendant contends the trial court erred in entering judgment against him for attorney\u2019s fees and appointment fees without giving him notice and an opportunity to be heard. Defendant\u2019s counsel submitted a fee application for 16.6 hours on 7 December 2006, and the trial court ordered the State of North Carolina to pay defendant\u2019s counsel $1,079.00 for services rendered. On 12 December 2006, the court entered a judgment against defendant in the amount of $1,079.00 for attorney fees and a judgment against defendant in the amount of $50.00 for the attorney appointment fee.\nThese judgments constituted \u201ccivil judgments],\u201d and, accordingly, defendant was required to comply with Rule 3(a) of the Rules of Appellate Procedure when appealing from those judgments. State v. Jacobs, 361 N.C. 565, 566, 648 S.E.2d 841, 842 (2007). Rule 3(a) provides: \u201cAny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.\u201d Because defendant failed to give written notice of appeal from these civil judgments entered on 12 December 2006, this Court is without jurisdiction to address the propriety of those judgments. Abels v. Renfro Corp., 126 N.C. App. 800, 802, 486 S.E.2d 735, 737 (\u201cThe provisions of [N.C.R. App. P] 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal.\u201d), disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997). As a result, defendant\u2019s appeal from these civil judgments is dismissed.\nNo error in part; dismissed in part; remanded for correction of judgment.\nJudges TYSON and STEPHENS concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.", "Russell J. Hollers III for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THADDEUS ANDRE SMITH, Defendant\nNo. COA07-487\n(Filed 19 February 2008)\n1. Sentencing\u2014 aggravating factors \u2014 clerical errors \u2014 remanded\nA sentence for driving while impaired was remanded where there was a clerical error in the designation of aggravating factors on the sentencing form.\n2. Appeal and Error\u2014 notice of appeal \u2014 dismissal when not given in writing\nDefendant\u2019s appeal from civil judgments for attorney fees and appointment fees in an impaired driving prosecution was dismissed where he did not give written notice of appeal from the civil judgments. Rule of Appellate Procedure 3(a).\nAppeal by defendant from judgment entered 6 December 2006 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 21 January 2008.\nAttorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.\nRussell J. Hollers III for defendant-appellant." }, "file_name": "0842-01", "first_page_order": 872, "last_page_order": 876 }