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    "judges": [
      "Judges McCULLOUGH and DAVIS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHRISTOPHER AARON ROUSE"
    ],
    "opinions": [
      {
        "text": "ELMORE, Judge.\nChristopher Aaron Rouse (defendant) appeals from two judgments entered after a resentencing hearing. Because the denial of defendant\u2019s right to counsel at resentencing constitutes structural error, we vacate the trial court\u2019s judgments and remand for further proceedings.\nOn 26 April 2011, defendant pled guilty to five counts of second-degree sexual exploitation of a minor committed in November of 2009, and to attaining habitual felon status. He was represented at this proceeding by appointed counsel Tonya Turner. As specified in the parties\u2019 plea arrangement, the trial court sentenced defendant in the mitigated range to two consecutive active prison terms of 77 to 102 months.\nDefendant did not pursue an appeal. In 2012, however, he filed a motion for appropriate relief (\u201cMAR\u201d) in superior court challenging, inter alia, the calculation of his prior record level (\u201cLevel\u201d). The State conceded in response that, owing to an error on the sentencing worksheet, \u201c[djefendant was sentenced at Level III (5 points), but should have been sentenced at Level II (3 points).\u201d Citing its authority to correct errors of law \u201con its own motion after entry of judgment[,]\u201d see N.C. Gen. Stat. \u00a7 15A-1420(d) (2013), the trial court allowed defendant\u2019s MAR in part and ordered that his case \u201cbe calendared for resentencing without unnecessary delay.\u201d\nAt his resentencing hearing on 15 March 2013, defendant appeared \u201cunrepresented\u201d by counsel. Upon inquiry by the prosecutor and the trial court, defendant acknowledged that he had prior misdemeanor convictions for possession of drug paraphernalia, misdemeanor larceny, and domestic criminal trespass, and that these convictions resulted in \u201cthree prior [record] points, placing [him] at level two for punishment purposes.\u201d Despite the absence of evidence or stipulation, the trial court found as a mitigating factor that defendant has a support system in the community. Nee N.C. Gen. Stat. \u00a7 15A-1340.16(e)(18) (2013). After hearing from the parties, the trial court again sentenced defendant to two consecutive mitigated sentences of 77 to 102 months, as provided by his plea agreement. The judgments entered by the trial court at resentenc-ing reflect defendant\u2019s Level II status based on three prior record points.\nDefendant filed a timely pro se notice of appeal on 22 March 2013. The trial court signed appellate entries on 15 April 2013, appointing the Appellate Defender to represent defendant on appeal. After filing the record in this Court, counsel filed a petition for writ of certiorari as an alternative basis for appellate review. While acknowledging certain technical deficiencies in defendant\u2019s notice of appeal, defense counsel asked this Court to review the judgments pursuant to N.C.R. App. P. 21(a)(1), in order to address \u201cconstitutional issues\u201d including the violation of defendant\u2019s right to counsel at resentencing. The State opposed this Court\u2019s issuance of the writ, arguing that denial of counsel is not a cognizable claim on appeal from a guilty plea. See N.C. Gen. Stat. \u00a7 15A-1444(al)-(a2), (e) (2013). We note, however, that the State did not move to dismiss defendant\u2019s appeal.\nHaving examined defendant\u2019s notice of appeal, we find its contents sufficient to satisfy the jurisdictional requirements of N.C.R. App. P. 4(b). Although defendant lists extraneous file numbers for charges dismissed under his plea agreement, his notice of appeal also refers to the relevant file numbers-10 CRS 271, 50584-88-addressed in the resen-tencing judgments. See N.C.R. App. P. 4(b). \u201c[A] mistake in designating the judgment. . . should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.\u201d Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (2006) (citations and quotations omitted). Furthermore, while the notice of appeal fails to designate the court to which his appeal is taken, as required by Rule 4(b), \u201cdefendant\u2019s intent to appeal is plain, and since this Court is the only court with jurisdiction to hear defendant\u2019s appeal, it can be fairly inferred defendant intended to appeal to this Court.\u201d State v. Ragland, _ N.C. App. _, _, 739 S.E.2d 616, 620, disc. review denied, _ N.C. _, 747 S.E.2d 548 (2013).\nOn appeal, defendant argues only that the failure to provide him with counsel at resentencing violated his constitutional and statutory rights under U.S. Const, amend. VI, N.C. Const, art. I, \u00a7 23, and N.C. Gen. Stat. \u00a7 7A-451(a)(l). The State responds that defendant has no right to appeal the denial of his right to counsel, inasmuch as his guilty plea limited his appellate rights to the issues set forth in N.C. Gen. Stat. \u00a7 15A-1444(al)-(a2), (e) (2011).\nAs the State observes, the constitutional issue raised by defendant does not fall within his limited right of appeal under N.C. Gen. Stat. \u00a7 15A-1444. However, \u201cit is permissible for this Court to review pursuant to a petition for writ of certiorari during the appeal period a claim that the procedural requirements of [G.S. Chapter 15A,] Article 58 [(Procedures Relating to Guilty Pleas in Superior Court)] were violated.\u201d State v. Rhodes, 163 N.C. App. 191, 194, 592 S.E.2d 731, 733 (2004). Although Article 58 does not expressly address the appointment of counsel to assist an indigent defendant who pleads guilty in superior court, we believe a defendant\u2019s constitutional right to representation by counsel is implicit in these statutory procedures. See N.C. Gen. Stat. \u00a7\u00a7 15A-1012(a), 15A-1022(a)(5) (2013). We therefore allow defendant\u2019s petition for writ of certiorari for the purpose of reviewing his claim.\nIt is well-established that \u201csentencing is a critical stage of a criminal proceeding to which the right to ... counsel applies.\u201d State v. Davidson, 77 N.C. App. 540, 544, 335 S.E.2d 518, 521, writ denied, 314 N.C. 670, 337 S.E.2d 583 (1985). Accordingly, \u201c[t]his Court has held that the threat of imprisonment at a resentencing hearing triggers an absolute right to counsel under the Sixth Amendment and N.C. Gen. Stat. \u00a7 7A-451. There is no question but that Defendant was subject to a threat of imprisonment at his resentencing hearing.\u201d State v. Boyd, 205 N.C. App. 450, 454 & n.1, 697 S.E.2d 392, 394 & n.1 (2010) (citing State v. Lambert, 146 N.C. App. 360, 364-65, 553 S.E.2d 71, 75 (2001)). Indeed, defendant\u2019s plea agreement required that he serve a minimum of twelve years in prison.\nThe complete denial of counsel is one of the six forms of structural error identified by the United States Supreme Court. State v. Polke, 361 N.C. 65, 73, 638 S.E.2d 189, 194 (2006) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963)). \u201c[A] defendant\u2019s remedy for structural error is not dependant upon harmless error analysis; rather, such errors are reversible per se.\" State v. Garcia, 358 N.C. 382, 409, 597 S.E.2d 724, 744 (2004). Therefore, we must vacate the trial court\u2019s judgments and remand for resentencing. Boyd, at 456, 697 S.E.2d at 396 (\u201cDefendant was deprived of his right to counsel at the resentencing hearing and is entitled to be resentenced.\u201d).\nVacated and remanded for resentencing.\nJudges McCULLOUGH and DAVIS concur.\n. Although the resentencing judgments list the appointed counsel who represented defendant at his plea hearing, Tonya Turner, the transcript of the 15 March 2013 resentenc-ing hearing clearly shows he was brought into court and required to proceed without the assistance of counsel.\n. Because the pertinent materials are absent from the record on appeal, it is unclear whether this mitigating factor was also found at defendant\u2019s original sentencing proceeding in April of 2011. We further note the record on appeal lacks the trial court\u2019s written findings of aggravating and mitigating factors at resentencing.\n. Any confusion regarding the file numbers resulted from the trial court\u2019s mistaken reference to 09 CRS 53285-89 at resentencing. Defendant called attention to the court\u2019s error and noted his objection. The court ultimately corrected its judgments on 27 March 2013 to reflect the correct file numbers in 10 CRS 50584-88. It appears defendant simply exercised due caution in listing both 09 CRS 52385-89 and 10 CRS 50584-88 in his notice of appeal filed 22 March 2013.",
        "type": "majority",
        "author": "ELMORE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Charlene Richardson, for the State.",
      "Irons & Irons, P.A., by Ben G. Irons, II, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHRISTOPHER AARON ROUSE\nNo. COA13-1104\nFiled 20 May 2014\n1. Appeal and Error\u2014writ of certiorari\u2014denial of counsel\u2014 granted\nDefendant\u2019s petition for writ of certiorari was allowed and the Court of Appeals addressed the merits of defendant\u2019s'argument that his constitutional right to assistance of counsel was violated when he was denied counsel at his resentencing hearing.\n2. Constitutional Law\u2014assistance of counsel\u2014resentencing hearing\nThe trial court erred by denying defendant the assistance of counsel at his resentencing hearing. The trial court\u2019s judgments were vacated and the matter was remanded for resentencing.\nAppeal by defendant from judgments entered 15 March 2013 by Judge Phyllis Gorham in Pender County Superior Court. H\u00e9ard in the Court of Appeals 9 April 2014.\nAttorney General Roy Cooper, by Assistant Attorney General Charlene Richardson, for the State.\nIrons & Irons, P.A., by Ben G. Irons, II, for defendant-appellant."
  },
  "file_name": "0092-01",
  "first_page_order": 102,
  "last_page_order": 105
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