{ "id": 4170437, "name": "STATE OF NORTH CAROLINA v. JAMES CHARLES WILLIS", "name_abbreviation": "State v. Willis", "decision_date": "2009-08-18", "docket_number": "No. COA08-1259", "first_page": "309", "last_page": "313", "citations": [ { "type": "official", "cite": "199 N.C. App. 309" } ], "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": "632 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636403 ], "year": 2006, "pin_cites": [ { "page": "822", "parenthetical": "\"If the record does not explicitly demonstrate that a defendant received written notification of the terms and conditions of probation, the condition prescribed by the trial court is invalid.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0818-01" ] }, { "cite": "654 S.E.2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640086 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "823", "parenthetical": "\"The defendant had a right to be present at the time that sentence was imposed.\"" }, { "page": "823", "parenthetical": "modification in original" }, { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0820-01" ] }, { "cite": "179 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8235301 ], "year": 2006, "pin_cites": [ { "page": "197", "parenthetical": "\"If the record does not explicitly demonstrate that a defendant received written notification of the terms and conditions of probation, the condition prescribed by the trial court is invalid.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0191-01" ] }, { "cite": "519 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "99", "parenthetical": "\"Because there is no indication in this record that Defendant was present at the time the written judgment was entered, the sentence must be vacated and this matter remanded for the entry of a new sentencing judgment.\"" }, { "page": "99" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238982 ], "year": 1999, "pin_cites": [ { "page": "66", "parenthetical": "\"Because there is no indication in this record that Defendant was present at the time the written judgment was entered, the sentence must be vacated and this matter remanded for the entry of a new sentencing judgment.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0059-01" ] }, { "cite": "535 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "878", "parenthetical": "quotations omitted" }, { "page": "879", "parenthetical": "quotations omitted" } ], "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", "parenthetical": "quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0198-01" ] }, { "cite": "94 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "342" }, { "page": "342" } ], "opinion_index": 0 }, { "cite": "244 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219514 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "403" }, { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0399-01" ] }, { "cite": "292 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524188 ], "year": 1982, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0210-01" ] }, { "cite": "188 N.C. App. 137", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155617 ], "year": 2008, "pin_cites": [ { "page": "141", "parenthetical": "\"The defendant had a right to be present at the time that sentence was imposed.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0137-01" ] }, { "cite": "299 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "200", "parenthetical": "\"Under this statute a defendant is entitled to receive notice that a hearing is to take place.\"" }, { "parenthetical": "\"[A] grant of probation is a privilege afforded by the court and not a right to which a felon is entitled. In view of this fact, the court is given considerable discretion in determining whether good cause exists for modifying the terms of probation.\"" } ], "opinion_index": 0 }, { "cite": "307 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564012 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "512", "parenthetical": "\"Under this statute a defendant is entitled to receive notice that a hearing is to take place.\"" }, { "parenthetical": "\"[A] grant of probation is a privilege afforded by the court and not a right to which a felon is entitled. In view of this fact, the court is given considerable discretion in determining whether good cause exists for modifying the terms of probation.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0511-01" ] } ], "analysis": { "cardinality": 478, "char_count": 10121, "ocr_confidence": 0.744, "pagerank": { "raw": 6.233605815818256e-08, "percentile": 0.38550838292116646 }, "sha256": "07347aafb51a45ec66d26386695c52a7d2d05bc57a6c08ea2ad82e3e783febf5", "simhash": "1:c073fc40f7474ed5", "word_count": 1655 }, "last_updated": "2023-07-14T20:19:28.879345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES CHARLES WILLIS" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 19 March 2008, James Charles Willis (defendant) was convicted in Pender County Superior Court of larceny of a dog and sentenced to a term of four to five months\u2019 imprisonment. The trial court suspended the sentence and placed defendant on supervised probation for twenty-four months. In open court, the judge ordered as a special condition of probation that defendant \u201cis not to have in his possession more than one dog at any time. Let him have a pet.\u201d\nHowever, when the judge issued his written sentence later that day, the special condition had been modified to: \u201cDefendant is not to have in his possession more than one animal.\u201d On 25 March 2009, without notifying defendant, the clerk initialed a second modification to the special condition, which then read: \u201cDefendant is not to have his in his possession or on his premises more than one animal.\u201d Defendant appeals to this Court. For the reasons stated below, we vacate the order filed by the clerk and remand to the trial court for entry of defendant\u2019s special condition of probation.\nDefendant argues that the trial court erred by amending defendant\u2019s sentence without notice and out of his presence after the conclusion of the court session. We agree.\nN.C. Gen. Stat. \u00a7 15A-1344(d) states:\nAt any time prior to the expiration or termination of the probation period or in accordance with subsection (f) of this section, the court may after notice and hearing and for good cause shown extend the period of probation up to the maximum allowed under G.S. 15A-1342(a) and may modify the conditions of probation. . . . The hearing may be held in the absence of the defendant, if he fails to appear for the hearing after a reasonable effort to notify him.\nN.C. Gen. Stat. \u00a7 15A-1344(d) (2007). As such, the trial court in this case has the authority to modify defendant\u2019s conditions of probation, but the clear language of the statute requires that (1) defendant be notified that a hearing will take place, (2) a hearing actually take place at which defendant is present or has failed to appear after a reasonable effort to notify him, and (3) good cause be shown for the modification. See State v. Coltrane, 307 N.C. 511, 512, 299 S.E.2d 199, 200 (1983) (\u201cUnder this statute a defendant is entitled to receive notice that a hearing is to take place.\u201d); State v. Hanner, 188 N.C. App. 137, 141, 654 S.E.2d 820, 823 (2008) (\u201cThe defendant had a right to be present at the time that sentence was imposed.\u201d); State v. Coltrane, 58 N.C. App. 210, 212, 292 S.E.2d 736, 737 (1982), rev\u2019d on other grounds, 307 N.C. 511, 299 S.E.2d 199 (1983) (\u201c[A] grant of probation is a privilege afforded by the court and not a right to which a felon is entitled. In view of this fact, the court is given considerable discretion in determining whether good cause exists for modifying the terms of probation.\u201d).\nThere is no evidence in the record that defendant or his attorney were notified that the trial court intended to hold.a hearing on defendant\u2019s probation conditions, nor that a hearing actually took place.\nThe State argues that the modifications in defendant\u2019s probation conditions were simply clerical corrections that the trial court could correct without notifying defendant:\nIt is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record, and no lapse of time will debar the court of the power to discharge this duty.\nState v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956). \u201cClerical error has been defined recently as: An error resulting from a minor mistake or inadvertence, especially] in writing or copying something on the record, and not from judicial reasoning or determination.\u201d State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quotations omitted).\nThe first modification, which changed the trial court\u2019s order from prohibiting defendant from possessing more than one dog to prohibiting him from possessing more than one animal, merely reflected the judge\u2019s comments in open court that defendant was allowed only \u201ca pet.\u201d As such, the first modification is properly classified as a clerical change that brought the written statement in line with the judge\u2019s statements in open court.\nHowever, the second modification, which changed defendant\u2019s sentence from allowing only one animal in his possession to allowing only one animal on his premises, is not properly classified as a clerical correction. First, such a condition was never discussed in open court, and there is no evidence in the record that the court was merely making its records \u201cspeak the truth.\u201d Second, given that a neighbor testified that defendant and his wife were keeping approximately seventeen animals on their property, the second modification in the trial court\u2019s order substantively impacted defendant\u2019s life in a way that was very different than the court\u2019s first modification. The first modification would have allowed defendant\u2019s roommate, friend, or spouse to keep animals, including strays, on defendant\u2019s property; however, under the second modification, any such behavior would violate defendant\u2019s probation conditions. Third, where \u201cthere has been uncertainty in whether an error was \u2018clerical,\u2019 the appellate courts have opted to err on the side of caution and resolve [the discrepancy] in the defendant\u2019s favor.\u201d Jarman at 203, 535 S.E.2d at 879 (quotations omitted) (modification in original).\n[I]n the exercise of power to amend the record of a court, the court is only authorized to make the record correspond to the actual facts and cannot, under the guise of an amendment of its records, correct a judicial error or incorporate anything in the minutes except a recital of what actually occurred.\nCannon, 244 N.C. at 404, 94 S.E.2d at 342. As such, the second modification in defendant\u2019s probation conditions was a substantive change in defendant\u2019s probation condition, and such a change \u201ccould only be made in the Defendant\u2019s presence, where [the defendant or] his attorney would have an opportunity to be heard.\u201d Hanner at 141, 654 S.E.2d at 823 (modification in original); State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999) (\u201cBecause there is no indication in this record that Defendant was present at the time the written judgment was entered, the sentence must be vacated and this matter remanded for the entry of a new sentencing judgment.\u201d). Since defendant was not given notice of a hearing and a hearing never actually took place, the second modification made to defendant\u2019s probation condition is invalid. Crumbley at 67, 519 S.E.2d at 99; Hanner at 142, 654 S.E.2d at 823.\nThe State correctly points out. that a \u201cdefendant released on supervised probation must be given a written statement explicitly setting forth the conditions on which he is being released. If any modification of the terms of that probation is subsequently made, he must be given a written statement setting forth the modifications.\u201d N.C. Gen. Stat. \u00a7 15A-1343(c) (2007). The State argues that the language of N.C. Gen. Stat. \u00a7 15A-1343(c) does not require defendant to be present when his probation is modified. However, this section does not stand alone; rather, it adds another sine qua non for modifying a defendant\u2019s probation conditions. N.C. Gen. Stat. \u00a7 15A-1344(d), discussed supra, requires, inter alia, that defendant be given notice of a hearing, and N.C. Gen. Stat. \u00a7 15A-1343(c) requires that, if defendant\u2019s probation is subsequently modified as a result of the hearing, defendant must then be provided a written statement of the modifications. This additional requirement of providing defendant with a written copy of modifications ensures that defendants do not unknowingly violate the modified terms of their probation, an especially pertinent requirement given that the probation\u2019s terms may be modified outside of a defendant\u2019s presence so long as reasonable effort was made to notify him of the hearing. N.C. Gen. Stat. \u00a7 15A-1344(d) (2007); State v. Henderson, 179 N.C. App. 191, 197, 632 S.E.2d 818, 822 (2006) (\u201cIf the record does not explicitly demonstrate that a defendant received written notification of the terms and conditions of probation, the condition prescribed by the trial court is invalid.\u201d).\nHowever, the State\u2019s emphasis on the requirement that defendant be given written notice of any probation modification is misplaced because defendant does not argue that he never received a written copy of the modifications after the trial court made them. Rather, defendant argues, as discussed supra, that he never received notification that a probation hearing was going to be held in the first place, which is a prerequisite for any substantive modification to be made to defendant\u2019s probation condition. N.C. Gen. Stat. \u00a7 15A-1344(d) (2007).\nFor the reasons stated above, we hold that the trial court could not substantively modify defendant\u2019s probation condition without notifying defendant that a hearing was going to take place. Absent this notification, the substantive modification made by the trial judge is invalid, and we must vacate that portion of the trial court\u2019s order and remand the matter to the trial court for entry of defendant\u2019s special condition of probation.\nVacated in part and remanded.\nJudges BRYANT and CALABRIA concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State.", "Mary McCullers Reece, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES CHARLES WILLIS\nNo. COA08-1259\n(Filed 18 August 2009)\nProbation and Parole\u2014 probation modification \u2014 substantial change \u2014 notice of hearing\nA probation modification was remanded where there was no evidence that defendant was notified of a hearing or that a hearing took place, and the modification was substantial.\nAppeal by defendant from judgment entered 19 March 2008 by Judge Gary E. Trawick in Pender County Superior Court. Heard in the Court of Appeals 21 May 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State.\nMary McCullers Reece, for defendant-appellant." }, "file_name": "0309-01", "first_page_order": 335, "last_page_order": 339 }