Appeal by defendant from judgment entered 14 June 2002 by
Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in
the Court of Appeals 20 August 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Christopher W. Brooks, for the State.
The Kelly Law Firm, by George E. Kelly, III, for defendant-
appellant.
HUNTER, Judge.
Christopher Lamont Williams (“defendant”) appeals from a
judgment and sentence entered based on his plea of guilty to
possession of a firearm by a felon and assault inflicting serious
injury. For the reasons stated herein, we affirm.
On 14 June 2002, defendant waived indictment and signed a Bill
of Information charging him with possession of a firearm by a felon
and assault inflicting serious injury. Defendant pled guilty to
both charges. Under the guilty plea arrangement, defendant and the
State agreed that the charges would be consolidated for judgment
and that defendant would receive a sentence of sixteen to twenty
months imprisonment to run concurrently with a sentence defendant
was already serving for possession of a firearm by a felon. At the plea hearing, defendant stipulated to the factual basis
to support his plea. Subsequently, the State presented the
following summary of the evidence to the trial court. On the
evening of 22 October 2000, Christopher Jones (“Jones”) went to
visit Latisha Williams (“Williams”), a woman he was seeing at the
time. Later, while Jones was in Williams' home, defendant went to
Williams' residence and used his key to enter her house. Defendant
had been romantically involved with Williams in the past, and the
two of them share a son. After defendant entered the house, he
walked past Jones and went into the bedroom to have a discussion
with Williams. Defendant then came out of the bedroom and started
yelling at Jones to get out of the house. According to Jones,
defendant pulled out a chrome handgun and hit him in the face with
it. The police were called in response to the incident. During
the investigation, Williams gave the police several different
versions of what had occurred. Williams and defendant both denied
that defendant ever had a gun. Following the summary of the
evidence, the trial court accepted defendant's guilty plea and
sentenced him to the agreed upon imprisonment term of sixteen to
twenty months. Defendant appeals.
On appeal, defendant brings forth eight assignments of error,
which essentially present issues regarding (I) the need for
separate Bills of Information for defendant's charges; (II) the
length of defendant's sentence; and (III) the sufficiency of the
evidence.
I.
The first issue presented to this Court is whether the trial
court erred in entering judgment against defendant based on his
possession charge and assault charge both being on the same Bill of
Information.
Section 14-415.1(c) of the North Carolina General Statutes
provides that “[t]he indictment charging the defendant [with
possession of a firearm by a felon] shall be separate from any
indictment charging him with other offenses related to or giving
rise to a charge under this section.” N.C. Gen. Stat. § 14-
415.1(c) (2001). Defendant contends that this statute also applies
to the single Bill of Information that charged him for both
possession of a firearm by a felon and assault inflicting serious
injury. However, Section 14-415(c) only addresses the need for
separate
indictments, not Bills of Information.
See id. Since the
language of this statute is clear and unambiguous, it must be
construed as written with no room for judicial construction
allowed.
See State v. Hardy, 67 N.C. App. 122, 125, 312 S.E.2d
699, 702 (1984). Moreover, defendant waived indictment on both
charges and pled guilty by signing the properly entered Bill of
Information containing the charges. By doing so, defendant also
effectively waived “'“all defenses other than that the indictment
charge[d] no offense.”'”
State v. Caldwell, 269 N.C. 521, 526, 153
S.E.2d 34, 37-38 (1967) (citation omitted). Thus, assuming the
Bill of Information was subject to Section 14-415.1(c), defendant's
contention based solely on a technical error and not on the Bill of
Information's content results in no error by the trial court.
II.
The second issue raised by defendant is whether the trial
court had sufficient evidence: (1) to conclude that defendant's
conviction for possession with intent to sell or deliver cocaine
actually preceded the offense of possession of a firearm by a
felon; (2) to correctly determine defendant's prior record level;
and (3) upon which to base and ultimately accept defendant's guilty
plea.
1.
Defendant contends the trial court committed plain error by
using his conviction for possession with intent to sell or deliver
cocaine to determine his prior record level because there was
insufficient evidence that the conviction actually preceded the
offense of possession of a firearm by a felon. Initially, we note
that our Supreme Court has applied the plain error analysis only to
jury instructions and evidentiary matters.
State v. Atkins, 349
N.C. 62, 81, 505 S.E.2d 97, 109 (1998). However, whether plain
error review would be appropriate in this instance is irrelevant
because defendant clearly stipulated to the factual basis provided
by the State to support his plea, i.e., that his conviction for
possession with intent to sell or deliver cocaine preceded the
possession of a firearm by a felon charge. Our statutes provide
that a prior conviction can be proven by stipulation of the
parties. N.C. Gen. Stat. § 15A-1340.14(f)(1) (2001). Therefore,
defendant's contention is without merit.
2.
Defendant also contends the trial court erred in calculating
his prior record level. Specifically, defendant asserts that there
was insufficient evidence to support the court's addition of one
point towards his prior record level under Section 15A-
1340.14(b)(7) of our statutes. Section 15A-1340.14(b)(7) provides:
“If the offense was committed while the offender was on supervised
or unsupervised probation, parole, or post-release supervision, or
while the offender was serving a sentence of imprisonment, or while
the offender was on escape from a correctional institution while
serving a sentence of imprisonment, 1 point.” N.C. Gen. Stat. §
15A-1340.14(b)(7) (2001). The State concedes in its brief that
there was no evidence to support the conclusion that defendant
committed the offense of possession of a firearm by a felon
pursuant to Section 15A-1340.14(b)(7). However, the State asserts
that this Court has previously held that such an error is harmless
if a defendant already has sufficient points for a determination of
his prior record level at the disputed level.
See State v. Smith,
139 N.C. App. 209, 219-20, 533 S.E.2d 518, 523-24 (2000).
A defendant must have at least five prior record level points
to have a prior record level of “III.” N.C. Gen. Stat. § 15A-
1340.14(c)(3) (2001). In the instant case, the trial court
determined that defendant had eight prior record level points.
Defendant received four points because his prior conviction for
possession with intent to sell or deliver cocaine was a Class G
felony.
See N.C. Gen. Stat. § 14-415.1(a); N.C. Gen. Stat. § 15A-
1340.14(b)(3). Additionally, Section 15A-1340.14(b)(6) of ourstatutes provides that “[i]f all the elements of the present
offense are included in any prior offense for which the offender
was convicted, whether or not the prior offense or offenses were
used in determining prior record level, 1 point.”
N.C. Gen. Stat.
§ 15A-1340.14(b)(6) (2001). At the time of defendant's plea
arrangement, he was serving a sentence based on a conviction for
possession of a firearm by a felon. That prior felony conviction
has all the elements of defendant's present charge for possession
of a firearm by a felon; thus, defendant properly received another
point. The court's adherence to these two statutes alone results
in defendant receiving at least five points, which is sufficient to
qualify him as having a prior record level of “III.”
3.
Defendant further contends there was insufficient evidence
upon which the trial court could accept his plea of guilty.
However, as we have previously stated in this opinion, defendant
effectively waived this defense when he stipulated to the State's
summary of the evidence. Therefore, defendant's last contention
regarding sufficiency of the evidence is also without merit.
III.
The final issue before this Court is whether the court
properly determined defendant's sentence. With respect to this
issue, defendant contends N.C. Gen. Stat. § 15A-1340.16(d) (2001)
precludes the trial court from using his prior felony conviction
for possession with intent to sell or deliver cocaine as an
aggravating factor for sentencing purposes. Defendant furthercontends the court sentenced him within the aggravated range
without making specific findings of fact in support of an
aggravated sentence as required by the Structured Sentencing Act.
Yet, both of defendant's contentions are premised on the erroneous
conclusion that his sentence was actually within the aggravated
range.
The trial court sentenced defendant from sixteen to twenty
months imprisonment as a Class G felon with a prior record level of
“III.” Section 15A-1340.17(c) of our statutes provides that the
minimum presumptive range for a felon with defendant's felony class
and prior record level is sixteen months. N.C. Gen. Stat. § 15A-
1340.17(c) (2001). The corresponding maximum term of imprisonment
for this presumptive term is twenty months.
See N.C. Gen. Stat. §
15A-1340.17(d). Therefore, defendant was properly sentenced within
the presumptive range, making defendant's contentions as to
aggravation without merit.
For the aforementioned reasons, we affirm the trial court's
judgment and sentence of defendant.
Affirmed.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***