NO. COA03-586

NORTH CAROLINA COURT OF APPEALS

Filed: 3 August 2004

    Appeal by defendant from judgment entered 13 March 2002 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 4 February 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Kay Linn Miller Hobart, for the State.

    Jarvis John Edgerton, IV, for defendant-appellant.

    GEER, Judge.

    Defendant Mark Lamont Holder appeals from his conviction of selling heroin, delivering heroin, and conspiracy to sell heroin. Defendant contends on appeal (1) that the State failed to fulfill a purported promise to ensure a "reduced sentence" in exchange for assistance as a drug informant; and (2) that the trial court erred in sentencing him both for sale and for delivery of a controlled substance contrary to State v. Moore, 327 N.C. 378, 395 S.E.2d 124 (1990). Since the record contains no indication that defendantever requested that the trial court enforce the agreement, defendant has failed to preserve any error for review. We agree, however, that this case must be remanded for resentencing based on Moore.

Facts

    On 12 June 2001, while returning from an undercover drug operation, Durham police investigator C.B. Davidson, III encountered defendant. Defendant got into Davidson's vehicle and agreed to purchase $20.00 worth of heroin from someone in the area and bring it to Davidson. Defendant exited the vehicle and obtained a bag of heroin from an individual named Andre Arnold. Defendant then returned to Davidson's vehicle and Davidson gave him $20.00, which he brought back to Arnold. When defendant again returned to Davidson's vehicle, believing he would share the heroin with Davidson, Davidson drove to an abandoned storefront and arrested him.
    Following the arrest, defendant and Davidson entered into an oral agreement under which defendant would provide assistance to the department as a drug informant in exchange for Davidson's seeking favorable treatment for defendant in connection with the charges stemming from the heroin buy. Davidson testified he made no promises to defendant about his sentence and specifically told him he would have to serve time in jail. Over the next two months,defendant provided assistance to Davidson and his task force. On 1 August 2001, Davidson and defendant entered into a written agreement drafted by the State in which defendant agreed, "in order to have a reduced sentence," to generate a list of dealers, make controlled purchases from those dealers, and testify in the resulting criminal prosecutions.
    Defendant continued to work as an informant, on and off, until he stopped calling Davidson sometime in late summer or the fall. On 29 October 2001, defendant was indicted for (1) possession with intent to sell and deliver heroin; (2) sale of heroin; (3) delivery of heroin; and (4) conspiracy to sell heroin. The grand jury also returned a habitual felon indictment.
    The jury acquitted defendant of possessing heroin with intent to sell or deliver, but convicted him of selling heroin, delivering heroin, and conspiring to sell heroin. Defendant entered an Alford plea to having attained the status of habitual felon. The trial court's judgment consolidated all the charges and sentenced defendant to a single term of 133 months to 169 months imprisonment.

I

    We first consider defendant's contention that his drug convictions should be vacated and his case remanded for re- sentencing so that the State can "fulfill its promise of a 'reducedsentence'" pursuant to the written agreement of 1 August 2001. Defendant does not, however, identify anywhere in the record where this relief was sought before the trial court.
    Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure provides:
        In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.

N.C.R. App. P. 10(b)(1). When a party has not made a motion or otherwise requested relief at the trial level, he cannot for the first time request that relief on appeal. See State v. Walters, 357 N.C. 68, 78, 588 S.E.2d 344, 350 (since defendant did not move for change of venue, any error was not preserved for review), cert. denied, __ U.S. __, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003); State v. Smith, 130 N.C. App. 71, 77, 502 S.E.2d 390, 394 (1998) (trial court's failure to help the defendant locate and subpoena his witness could not be raised on appeal when defense counsel failed to ask the trial court for a recess, a continuance, or issuance of a material witness order).
    Our review of the record reveals that although defendant presented evidence of the written agreement to support his defenseof entrapment and asked the trial court to consider his informant work as a mitigating factor at sentencing, he did not ask the trial court to enforce the written agreement or seek any other relief regarding the agreement. Defendant cannot complain for the first time on appeal that the agreement should have been enforced. This assignment of error is overruled.

II

    Defendant next contends that the trial court erred in sentencing him under N.C. Gen. Stat. § 90-95(a)(1) (2003) for both sale and delivery of heroin. We agree. State v. Moore, 327 N.C. 378, 395 S.E.2d 124 (1990) involved virtually identical facts. After a jury convicted the defendant of possession of a Schedule I controlled substance with intent to sell or deliver, of sale of a Schedule I controlled substance, and of delivery of a Schedule I controlled substance, the trial court consolidated the three convictions for the purpose of judgment and entered a single sentence. Id. at 380, 395 S.E.2d at 126. In concluding that this was error, the Supreme Court held:
        A defendant may be indicted and tried under N.C.G.S. § 90-95(a)(1) in such instances for the transfer of a controlled substance, whether it be by selling the substance, or by delivering the substance, or both. We conclude that a defendant may not, however, be convicted under N.C.G.S. § 90-95(a)(1) of both the sale and the delivery of a controlled substance arising from a single transfer. Whether the defendant is tried for transfer by sale, by delivery, or by both, the jury in such cases should determine whether the defendant is guilty or not guilty of transferring a controlled substance to another person.

Id. at 382-83, 395 S.E.2d at 127 (emphasis original). Under Moore, the trial court erred in allowing the jury to convict defendant of two offenses _ sale and delivery of heroin _ based on a single transfer and then in treating the jury's verdict as two separate convictions for sale of heroin and for delivery of heroin. There should have been a single conviction for transfer of heroin.
    In addressing this error, the Court in Moore held that "[the] case must thus be remanded for resentencing. On remand, the judgments in this case should be amended to reflect that the defendant was convicted on each indictment of a single count for the 'sale or delivery of a controlled substance.'" Id. at 383, 395 S.E.2d at 128. See also State v. Wooten, 104 N.C. App. 125, 130, 408 S.E.2d 202, 205 (1991) (vacating sentences for sale and delivery and remanding for entry of judgment and resentencing for a single conviction for "transferring a controlled substance"). Accordingly, we must remand for resentencing. On remand, the judgment should be amended to reflect that defendant was convicted of a single count of "sale or delivery of a Schedule I controlled substance."
    Remanded for resentencing.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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