STATE OF NORTH CAROLINA
v
.
MICHAEL ANTHONY LEE
Attorney General Roy Cooper, by Assistant Attorney General
Tracy C. Curtner, for the State.
Richard E. Jester for defendant-appellant.
EAGLES, Chief Judge.
Michael Anthony Lee (“defendant”) appeals from the trial
court's judgment entered on his guilty pleas to robbery with a
dangerous weapon and habitual felon status. Defendant does not
challenge the validity of either of these two convictions. On
appeal, defendant contends that he was incorrectly sentenced.
After careful consideration of the record and briefs, we reverse
and remand for resentencing.
On 12 June 1995, defendant, Greg Lee, and Donna Harrelson
committed an armed robbery of the Wendover Texaco, Huffman Oil
Company, located in Greensboro, North Carolina. Defendant was
arrested on 30 August 1995. Defendant's case was set to be tried
during the 4 December 1996 Criminal Session of Guilford CountySuperior Court, however, defendant pled guilty to robbery with a
dangerous weapon and habitual felon status prior to trial.
After reviewing defendant's criminal record, the trial court
determined that defendant had five prior record level points and
was a Class C felon with a Prior Record Level III. Accordingly,
the trial court correctly sentenced defendant under the Structured
Sentencing Act, G.S. § 15A-1340.10 et seq. (applicable to all
crimes committed after 1 October 1994), to seventy-five to ninety-
nine months imprisonment and entered judgment. We note that the
transcript reflects that the trial court “sentence[d] him in the
presumptive range;” however, the judgment states that the “factors
in mitigation outweigh the factors in aggravation and that a
mitigated sentence is justified.” On 24 May 2000, defendant filed
a petition for writ of certiorari which this Court allowed.
Here, defendant contends that he “was incorrectly sentenced as
a Class C, Level III[] offender, when his correctly calculated
record shows only Class C, Level II.” Specifically, defendant
argues that his prior record level was established by using
convictions necessary to adjudge him an habitual felon in violation
of G.S. § 14-7.6. After careful review, we agree.
Pursuant to G.S. § 14-7.1, “[a]ny person who has been
convicted of or pled guilty to three felony offenses in any federal
court or state court in the United States or combination thereof is
declared to be an habitual felon.” Here, defendant's habitual
felon indictment alleged that defendant was an habitual felon andthat he “was convicted of at least three (3) consecutive felony
offenses” including:
1) That on or about August 8, 1978, in the
Superior Court of Guilford County, the
defendant . . . was convicted of the felonies
of Breaking and Entering and Larceny against
the State of North Carolina with the
commission date on or about November[]24,
1977. (77CRS065262)
2) That thereafter, on or about June 3, 1980,
in the Superior Court of Guilford County, the
defendant . . . was convicted of the felony
offenses of Breaking and Entering and Larceny
against the State of North Carolina with the
commission date on or about December 12, 1970.
(79CRS015522)
3) That thereafter, on or about August 14,
1987 in the Superior Court of Guilford County,
the defendant . . . was convicted of the
felony offense of Larceny against the State of
North Carolina, with the commission date on or
about November 20, 1986. (86CRS-36243)
(Emphasis added). Defendant's prior record level worksheet shows
that defendant had previously been convicted of (1) breaking and
entering on 8 August 1978 (Class H felony), (2) larceny on 8 August
1978 (Class H felony), (3) breaking and entering on 3 June 1980
(Class H felony), (4) larceny on 3 June 1980 (Class H felony), (5)
larceny on 14 August 1987 (Class H felony), (6) attempted common
law robbery on 8 August 1978 (Class H felony), and (7) misdemeanor
larceny on 4 January 1977.
Even though G.S. § 14-7.1 only requires three felony
convictions, the first five convictions above were listed on
defendant's habitual felon indictment and were used to establish
defendant's status as an habitual felon. G.S. § 14-7.6
specifically provides that in determining a defendant's priorrecord level, “convictions used to establish a person's status as
an habitual felon shall not be used.” (Emphasis added). G.S. §
14-7.6 “recognizes that there are two independent avenues by which
a defendant's sentence may be increased based on the existence of
prior convictions. A defendant's prior convictions will either
serve to establish a defendant's status as an habitual felon
pursuant to G.S. 14-7.1 or to increase a defendant's prior record
level pursuant to G.S. 15A-1340.14(b)(1)-(5). G.S. 14-7.6
establishes clearly, however, that the existence of prior
convictions may not be used to increase a defendant's sentence
pursuant to both provisions at the same time.” State v. Bethea,
122 N.C. App. 623, 626, 471 S.E.2d 430, 432 (1996). By using the
five felony convictions in the habitual felon indictment, the State
was precluded from using the same five convictions to increase
defendant's prior record level points pursuant to G.S. § 14-7.6.
Nevertheless, defendant's convictions for Attempted Common Law
Robbery on 8 August 1978, Misdemeanor Larceny on 4 January 1977,
and Larceny on 3 June 1980, which was also listed on the habitual
felon indictment, were used to determine that defendant had five
prior record level points. Each felony was worth two points and
each misdemeanor was worth one point. See G.S. § 15A-1340.14.
We conclude that only defendant's convictions for attempted
common law robbery on 8 August 1978 and misdemeanor larceny on 4
January 1977 should have been used to determine defendant's prior
record level points. Since under the Structured Sentencing Act
each felony was worth two points and each misdemeanor was worth onepoint, defendant should have been found to have three total prior
record level points and Level II status.
In sum, a close review of the record reveals that the trial
court used one conviction used to establish defendant's habitual
felon status to enhance defendant's sentence in violation of G.S.
§ 14-7.6. Accordingly, we reverse and remand for resentencing.
We note that our legislature amended the sentencing charts in
G.S. § 15A-1340.17 in 1995, and the amendment was applicable to all
offenses committed on or after 1 December 1995. See 1995 N.C.
Sess. Laws ch. 507, § 19.5. Since the crimes here were committed
on 12 June 1995, we order the trial court on remand to sentence
defendant under the version of G.S. § 15A-1340.17 in effect on that
date.
Reversed and remanded.
Judges McGEE and TYSON concur.
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