State v O'Neil, (02-927) 05/06/2003

Appeal by defendant from judgment entered 22 March 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 14 April 2003.

Attorney General Roy Cooper, by Christopher W. Brooks, Assistant Attorney General, for the State.

Angela H. Brown for defendant appellant.

    ELMORE, Judge.

    Defendant was indicted on two counts of possession with intent to sell and deliver cocaine, two counts of sale of cocaine, one count of possession with intent to sell and deliver heroin, and one count of sale of heroin on 11 March 2002 by the Forsyth County Grand Jury. Defendant pled guilty to all six counts as part of a plea agreement on 21 March 2002. Pursuant to the plea agreement, the charges against defendant were consolidated into one count of possession with intent to sell and deliver cocaine, a class H felony, and one count of sale of cocaine, a class G felony.
    Defendant received consecutive sentences of nine to eleven months imprisonment for the charge of possession with intent to sell and deliver cocaine and sixteen to twenty months imprisonmentfor the charge of sale of cocaine. Defendant appeals, seeking remand to the trial court for (1) correction of a clerical error in the judgment and commitment orders, and (2) appointment of counsel to prepare a Petition for Writ of Certiorari.
    A defendant who pleads guilty to a felony in superior court is only entitled to appeal as a matter of right in certain limited instances. N.C. Gen. Stat. § 15A-1444(a2) (2001). One such instance is where the sentence imposed results from an incorrect finding of defendant's prior record or conviction level. Id. According to the transcript and the prior record worksheet in the case at bar, defendant was sentenced as a level IV felon with ten prior record points. However, the judgment and commitment orders inexplicably state that defendant is a level V felon with eighteen prior record points. The presumptive sentence range for a level IV felon who commits a class H felony is nine to eleven months, while the presumptive range for a level V felon who commits a class H felony is twelve to fifteen months. N.C. Gen. Stat. § 15A- 1340.17(c) (2001). The presumptive sentence range for a level IV felon who commits a class G felony is sixteen to twenty months, while the presumptive range for a level V felon who commits a class G felony is seventeen to twenty-one months. Id. Therefore, it is clear that defendant's prior record level of V as reflected on the trial court's judgment and commitment orders is incorrect, although defendant was actually correctly sentenced as a level IV felon.
    Both the defendant and the State appropriately agree that the case should be remanded to the Superior Court of Forsyth County inorder to correct defendant's prior record points and level to ensure a correct record and avoid later prejudice against defendant. State v. Brooks, 148 N.C. App. 191, 195, 557 S.E.2d 195, 197-98 (2001) (remand to trial court for correction of clerical error in sentencing proper), disc. review denied, 355 N.C. 287, 560 S.E.2d 808 (2002). We order that the case be remanded to correct the clerical error in the judgment and commitment orders.
    Defendant also requests that on remand, this Court order the presiding superior court judge in Forsyth County to appoint counsel to prepare a Petition for Writ of Certiorari on defendant's behalf. In a case where, as here, defendant has pled guilty and been sentenced in the presumptive range for his prior record level and class of offense, defendant may properly seek appellate review by petitioning the appellate division for a writ of certiorari. N.C. Gen. Stat. § 15A-1444(e) (2001). However, we decline to order the superior court to appoint counsel for this purpose and instead leave this determination for the superior court, in its discretion, to make on remand.
    Remand for correction of clerical error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e)