713 S.E.2d 793
No. COA10-1000North Carolina Court of Appeals
Filed 7 June 2011 This case not for publication
New Hanover County No. 08 CRS 18736.
On writ of certiorari to review judgment entered 21 January 2010 by Judge Russell J. Lanier, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 23 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Amy Bircher, for the State.
Winifred H. Dillon, for defendant-appellant.
STEELMAN, Judge.
The trial court’s instruction on felonious possession of stolen goods did not allow the jury to convict defendant based upon his actual or constructive knowledge that the goods were worth more than $1,000.00. The trial court made no explicit statement or inference that it imposed a consecutive sentence as a result of defendant’s refusal of the State’s plea offer.
I. Factual and Procedural Background
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On the evening of 20 September 2008, Anthony Barnhill (defendant) and Keith Drakeford (Drakeford) were driving around looking for a house to break into so they could “[get] some money[.]” Defendant and Drakeford broke into the residence of Troy Sheffield (Sheffield) and Douglas Fox (Fox) on Wrightsville Avenue in Wilmington. The two stole a Samsung television, a Dell laptop computer, an X-Box game console, a digital camera, an I-Pod, speakers, video games, CDs, and DVDs belonging to Sheffield. Two televisions, a watch, noise cancelling headphones, and $2,500.00 in cash were stolen from Fox. On 25 September 2008, defendant and Drakeford were arrested at the scene of another alleged break-in. A search warrant was executed on 26 September 2008 and Wilmington police detectives searched defendant’s apartment. Detectives found Sheffield’s Samsung television and Dell laptop computer in defendant’s apartment.
Defendant was indicted on charges of second-degree burglary, felony larceny, and felony possession of stolen goods. On 21 January 2010, a jury found defendant guilty of felony possession of stolen goods, but could not reach a unanimous verdict as to the other two charges. The trial court determined that defendant was a prior record level IV for felony sentencing
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purposes and sentenced him to ten to twelve months imprisonment. The sentence was to begin at the expiration of a sentence defendant was currently serving.[1]
Defendant appeals.
II. Grounds for Appellate Review
In the instant case, defendant concedes that “notice of appeal was not given in open court at trial nor was written notice of appeal filed within 14 days of the entry of judgment as required by Rule 4.” It is well-established that without proper notice of appeal, this Court acquires no jurisdiction to review the appeal. State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005). However, this Court
does have the discretion to consider the matter by granting a petition for writ of certiorari. “The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action,. . . .” N.C. R. App. P. 21(a).
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Id. at 638, 615 S.E.2d at 320-21. In our discretion, we grant defendant’s petition for writ of certiorari and address the issues brought forward on appeal.
III. Jury Instruction on Felony Possession of StolenGoods
In his first argument, defendant contends that the trial court’s jury instruction on felony possession of stolen goods constituted plain error because the wording of the instruction on the element of “guilty knowledge” allowed defendant’s conviction to be based solely on the value of goods stolen, without the State having proved defendant’s guilty knowledge. We disagree.
A. Standard of Review
Because defendant failed to object to the trial court’s instruction at trial, defendant must establish that the instruction amounted to plain error.
Plain error has been defined as “`fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.'” [State v. Odom, 307 N.C. 651, 660, 300 S.E.2d 375, 378
(1983)] (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (citation omitted), cert. denied, 459 U.S. 1018, 103 S. Ct. 381, 74 L. Ed. 2d 513
(1982)). “In deciding whether a defect in the jury instruction constitutes `plain error,’ the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury’sPage 5
finding of guilt.” Id. at 661, 300 S.E.2d at 378-79.
State v. Maready, 362 N.C. 614, 621, 669 S.E.2d 564, 568 (2008). Our Supreme Court has stated that, “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Odom, 307 N.C. at 661, 300 S.E.2d at 378 (quotation omitted) (alteration original).
B. Analysis
In the instant case, defendant was charged with a violation of N.C. Gen. Stat. § 14-71.1, felonious possession of stolen goods. The elements of felonious possession of stolen goods are “(1) possession of personal property, (2) valued at more than [$1,000.00], (3) which has been stolen, (4) the possessor knowing or having reasonable grounds to believe the property to have been stolen, and (5) the possessor acting with a dishonest purpose.” State v. Parker, 316 N.C. 295, 302, 341 S.E.2d 555, 559
(1986) (citation omitted). Defendant challenges the trial court’s instruction as to the fourth element.
The trial court instructed the jury as follows:
The second indictment alleges that the Defendant committed felonious possession of stolen goods. This is defined as possessing property which the Defendant knew or had reasonable grounds to believe had been
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stolen pursuant to a breaking or entering or was worth more than $1,000. For you to find the Defendant guilty of this offense, the State has to prove five things to you beyond a reasonable doubt:
First, that two color TV sets, a computer and various other items that you heard described in the testimony [were] stolen. Property is stolen when it is taken and carried away without the owner’s consent by someone who intends, at the time, to deprive the owner of its use permanently and knows that he is not entitled to take it.
Second, that this property was stolen pursuant to a breaking or entering or was worth more than $1,000. I’ve already described to you what breaking and entering is so you — I won’t repeat that here.
The third thing is that the Defendant possessed the property. One has possession of property when he has both the power and intent to control its disposition or use. You will recall my explanation of both actual and constructive possession that I gave you at the previous instruction. I will not repeat it here. You will adopt it and add it there.
Fourth, that the Defendant knew or had reasonable grounds to know that the property was stolen pursuant to a breaking or entering or valued at more than $1,000 that it was stolen.
Fifth, that the Defendant possessed it with the dishonest purpose. Converting it to his own use would be a dishonest purpose. Keeping it for the purpose of sale would be a dishonest purpose.
So if you find from the evidence beyondPage 7
a reasonable doubt that the property described was stolen pursuant to a breaking and entering or was worth more than a $1,000 and that on or about the alleged date, the Defendant possessed this property knowing or having reasonable grounds to believe that the property was stolen pursuant to breaking or entering or valued at more than $1,000 and that the property was stolen and that the Defendant possessed it for a dishonest purpose, it would be your duty to return a verdict of guilty of felonious possession of stolen goods. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.
Defendant contends that “the trial court’s instruction as a whole allowed [] defendant to be convicted if the jury found defendant knew or had reasonable grounds to believe that the property was worth over $1,000.” Defendant argues that the instruction relieved the State of its burden of proving defendant had “guilty knowledge” that the property was stolen.
We note that the trial court instructed the jury in accordance with N.C.P.I. — Crim. 216.48A on this charge. The trial court’s instruction followed the pattern jury instruction almost verbatim. The jury was instructed that they must find that the property was stolen in order to convict defendant of felonious possession of stolen goods. This element is embedded in the first, second, and fourth prong of this instruction. The language that the property was stolen pursuant to a breaking and
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entering or was valued at more than $1,000.00 merely elevated the crime from a misdemeanor to a felony. See N.C. Gen. Stat. §§ 14-71.1, -72. The trial court specifically instructed the jury that to find defendant guilty of this crime it must find that “the Defendant possessed this property knowing or having reasonable grounds to believe that the property was . . . valued at more than $1,000 and that the property was stolen[.]” (Emphasis added.) Thus, each of the alternative bases contained in element form contained a requirement that defendant knew or had reasonable grounds to believe that the property was stolen. Defendant’s argument misstates the trial court’s instruction. We note that defendant does not argue that because of defects in the charge as to the fourth element that defendant could only have been convicted of misdemeanor possession of stolen goods. The trial court did not commit error, much less plain error.
This argument is without merit.
IV. Improper Sentencing for Refusal to Accept Plea Offer
In his second argument, defendant contends that the trial court’s imposition of a consecutive sentence was based upon defendant’s refusal to accept the State’s plea offer. We disagree.
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North Carolina courts have held that “a trial judge does not err by simply engaging in a colloquy with a criminal defendant for the purpose of ensuring that a defendant understands and fully appreciates the nature and scope of the available options[.]” State v. Pinkerton, ___ N.C. App. ___, ___, 697 S.E.2d 1, 10 (2010) (Hunter, J. dissenting), rev’d per curiam for the reasons stated in the dissenting opinion, ___ N.C. ___, ___ S.E.2d ___ (Feb. 4, 2011) (No. 321A10); State v. Tice, 191 N.C. App. 506, 513, 664 S.E.2d 368, 373 (2008). Conversely, “`explicit comments by a trial judge that a defendant will receive a more severe sentence if he or she goes to trial and is convicted than he or she will receive if a proposed negotiated plea is accepted’ will result in reversible error.” Id. A mere reference to a defendant’s decision to reject a negotiated plea, without any specific indication that the trial court based a more severe sentence upon the defendant’s refusal to enter a guilty plea, does not necessitate appellate relief. Id. It is well-established that “[t]he trial court has discretion to determine whether to impose concurrent or consecutive sentences.” State v. Parker, 350 N.C. 411, 441, 516 S.E.2d 106, 126
(1999) (citing N.C. Gen. Stat. § 15A-1354(a)), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000);
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see also State v. Nunez, ___ N.C. App. ___, ___, 693 S.E.2d 223, 227
(2010).
To warrant reversible error, defendant must show a reasonable inference that the trial court imposed a consecutive sentence as a result of defendant’s decision to exercise his right to a jury trial. State v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990). Examples of impermissible statements are where the trial judge makes explicit statements prior to trial that he will give defendant a harsher penalty if he does not accept the plea bargain, or where the trial judge’s statements at the sentencing hearing clearly establish that he is punishing the defendant for not accepting the plea bargain. Pinkerton, ___N.C. App. at ___, 697 S.E.2d at 11.
In the instant case, the trial court engaged in a colloquy with defendant after imposing a consecutive sentence at the discretion of the trial court stating, “I don’t punish people for trying their cases. They have a Constitutional right to do that. But it’s just — to me, was a — with the evidence that was given, was a rather foolish choice. But that’s the choice he’s entitled to make.” The trial court’s remarks directly stated that the sentence was not a reflection of defendant’s decision to exercise his constitutional right to a jury trial.
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There is no explicit statement or inference that the trial court imposed a consecutive sentence as a result of defendant’s refusal of the plea offer.
This argument is without merit.
NO ERROR.
Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).
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