Opinion
No. COA10-545
Filed 15 March 2011 This case not for publication
Appeal by defendant from judgment entered 19 November 2009 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 1 December 2010.
Attorney General Roy Cooper, by Assistant Attorney General Hugh A. Harris, for the State.
Leslie C. Rawls, for defendant-appellant.
Buncombe County Nos. 06 CRS 11560, 62351-53.
Where the defendant did not file a written request for a formal arraignment pursuant to N.C. Gen. Stat. § 15A-941 (2009), the defendant waived his statutory right to have his trial held at least one week after his arraignment. Where there was insufficient evidence presented at sentencing to support the amount of restitution for extradition costs, the restitution order must be vacated.
I. Factual and Procedural History
On 7 October 2006, the Asheville Police conducted surveillance at a concert by a band called "String Cheese" in Asheville.
Officer Tammy Bryson observed Benjamin Thomas Schaeffer ("defendant") conducting drug transactions. Police officers approached defendant's vehicle, where they smelled and observed marijuana and hashish. The officers searched defendant's vehicle and found more marijuana and hashish, as well as ecstasy (MDMA) and LSD.
On 6 November 2006, defendant was indicted for trafficking in LSD by manufacturing, trafficking in LSD by possession, possession with intent to sell or deliver marijuana, and possession with intent to sell or deliver a Schedule I controlled substance, 3,4-methylenedioxymethamphetamine (MDMA). The charges were dismissed with leave on 12 April 2007 because defendant failed to appear in Buncombe County Superior Court and could not be located. Defendant was ultimately located in and was extradited from California. The charges were reinstated on 5 August 2009, and defendant was served with a new indictment on 7 August 2009, with a court date set for 10 August 2009. He was tried by jury in Buncombe County Superior Court on 17, 18, and 19 November 2009 and was found guilty of all charges. The charges were consolidated into a single judgment and defendant was sentenced to an active prison term of 175 to 219 months. He was further ordered to pay a $200,000 fine, and $2,433.76 in restitution to the North Carolina Department of Correction's Extradition Section.
Defendant appeals.
II. Arraignment and Trial in the Same Week
In his first argument, defendant contends that the trial court committed plain error when he was tried during the same week he was arraigned without his consent and despite his motions to continue, in violation of N.C. Gen. Stat. § 15A-943(b) and State v. Shook, 293 N.C. 315, 237 S.E.2d 843 (1977). We disagree.
A. Standard of Review
Defendant alleges an error of law based upon a statutory violation by the trial court. This is subject to de novo review. State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985). Even though the defendant did not object at trial, this is not fatal. "[W]hen a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court's action is preserved, notwithstanding defendant's failure to object at trial." Id.
B. Analysis
Since defendant failed to raise this issue at trial, he contends that it should be analyzed under plain error review. This is incorrect. "Plain error review is limited to evidentiary rulings and jury instructions." State v. Davis, 191 N.C. App. 535, 538, 664 S.E.2d 21, 23 (2008) (citing State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999)).
It is undisputed that defendant was arraigned on 17 November 2009 and was tried on 17, 18, and 19 November 2009. N.C. Gen. Stat § 15A-943(b) requires that in counties where 20 or more weeks of superior court trial sessions are heard, the defendant "may not be tried without his consent in the week in which he is arraigned." We take judicial notice that Buncombe County is a county in which twenty or more weeks of criminal trial sessions take place. State v. Cates, 140 N.C. App. 548, 550, 537 S.E.2d 508, 510 (2000).
However, we need not reach the question of whether it was error to try the defendant during the same week that he was arraigned because defendant failed to file a written request for arraignment. N.C. Gen. Stat. § 15A-941(d) (2009) mandates that: "A defendant will be arraigned in accordance with this section only if the defendant files a written request with the clerk of superior court for an arraignment not later than 21 days after service of the bill of indictment." Id. (emphasis added). In State v. Trull, 153 N.C. App. 630, 571 S.E.2d 592 (2002), disc. rev. denied, 356 N.C. 691, 578 S.E.2d 597 (2003), this Court held that defendant waived the requirements of N.C. Gen. Stat. § 15A-943(b) by failing to file a written request for arraignment pursuant to N.C. Gen. Stat. § 15A-941(d). "We hold that it would be illogical to require the State to schedule an arraignment pursuant to one statute where the right to such has been waived pursuant to another, and we decline to do so." Id. at 634, 578 S.E.2d at 595; accord State v. Lane, 163 N.C. App. 495, 594 S.E.2d 107 (2004). Since defendant was served with the indictment on 7 August 2009 and was assigned a court date of 10 August 2009, at which time the case was continued, he had sufficient time and opportunity to file such a request. As a result of failing to file a request, the right to an arraignment was waived under N.C. Gen. Stat. § 15A-941(d). In the absence of any evidence in the record that defendant requested an arraignment pursuant to N.C. Gen. Stat. § 15A-941(d), this Court is required to follow Trull and Lane. In re Appeal from Civil Penalty, 324 N.C. 373, 383-84, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court."). Defendant waived his rights under N.C. Gen. Stat. § 15A-943(b) and was subject to being tried during the same week as his arraignment.
This argument is without merit.
III. Restitution
In his second argument, defendant argues that the trial court erred in ordering restitution for extradition costs in an amount not supported by evidence. We agree.
A. Standard of Review
We review the trial court's restitution order to verify that it is "supported by evidence adduced at trial or at sentencing." State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (quoting State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995)). If it is not supported by such evidence, we must reverse the restitution order, even if defendant did not object at trial. State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003) (citing N.C. Gen. Stat. § 15A-1446(d)(18)).
B. Analysis
Defendant does not argue in his brief that the $600 awarded as court costs for an "SBI lab fee" should be reversed. Instead, he only contests the restitution order, which encompasses only the extradition costs. We deem any argument over the laboratory costs to be abandoned, N.C. R. App. P. 28(a), and do not address that fee.
Unsworn statements are insufficient to support a restitution order. State v. Swann, 197 N.C. App. 221, 225, 676 S.E.2d 654, 657-58 (2009); State v. Calvino, 179 N.C. App. 219, 223, 632 S.E.2d 839, 843 (2006); State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). In its brief, the State attempts to draw a distinction between restitution to a victim and restitution to the State. We see no basis for such a distinction.
The only basis in the record for the restitution is the prosecutor's unsworn statement on a restitution worksheet and his oral statement to the court:
MR. HESS: Also handing up to the Court the restitution worksheet showing restitution owing in the amount of two thousand four hundred thirty-three dollars and seventy-six cents. Mr. Schaefer had to be extradited from the state of California. . . . That [restitution is] for our Department of Corrections [sic] for him to bring him back to North Carolina to face these charges, and the State would ask your Honor to sentence accordingly.
The unsworn statements of the prosecutor "do[] not constitute evidence and cannot support the amount of restitution recommended." Buchanan, 108 N.C. App. at 341, 423 S.E.2d at 821 (citing State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)).
Since there was no stipulation as to the amount of extradition expenses, nor was evidence introduced as to this amount, State v. Swann, 197 N.C. App. at 225, 676 S.E.2d at 657-58, the restitution order for $2,433.76 must be vacated and this case must be remanded to the Buncombe County Superior Court for a new hearing on the issue of restitution.
NO ERROR IN PART, ORDER OF RESTITUTION VACATED AND MATTER
REMANDED FOR A NEW HEARING.
Judges STEPHENS and ROBERT N. HUNTER, Jr. concur.
Report per Rule 30(e).