An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-642


Filed: 18 May 2004


         v.                        Pitt County
                                No. 02 CRS 6884

    Appeal by defendant from judgment entered 12 December 2002 by Judge Clifton W. Everett, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton and Christopher W. Brooks, for the State.

    James M. Bell, for defendant-appellant.

    CALABRIA, Judge.

    Defendant entered a guilty plea to one count of felony larceny and habitual felon status, under a plea agreement providing that he would “be sentenced in the mitigated range of habitual felon at the lowest end (80 mo[nths]).” The trial court sentenced defendant in accordance with the plea agreement to an active prison term of 80 to 105 months. The judgment assigned defendant ten prior record points and a Prior Record Level IV, which places his sentence at the very bottom of the applicable mitigated range for a Class C felony. N.C. Gen. Stat. § 15A-1340.17(c), (e) (200#). Defendant gave notice of appeal in open court.    Counsel appointed to represent defendant on appeal has filed an Anders brief indicating that he is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal. See Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967). He asks that this Court conduct its own review of the record for possible prejudicial error.     Counsel has filed documentation with the Court demonstrating that he complied with the requirements of Anders and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of his right to file written arguments with the Court and providing him with a copy of the documents pertinent to his appeal.
    Defendant has prepared a pro se argument, which he forwarded to his counsel, claiming that the three prior felony convictions listed in his habitual felon indictment were also used to calculate his Prior Record Level. See N.C. Gen. Stat. § 14-7.6 (2002) (“In determining [a defendant's] prior record level, convictions used to establish a person's status as an habitual felon shall not be used.”). Counsel in turn has filed a motion asking this Court to consider defendant's pro se arguments and to treat the argument as an amendment to his appellant's brief. In its response to the motion, the State concedes the error identified by defendant. Inasmuch as Anders and Kinch provide defendants with the opportunity to file pro se arguments, we allow the motion and will consider the issue raised by defendant pro se.
    “A defendant's prior convictions will either serve to establish a defendant's status as an habitual felon pursuant toG.S. 14-7.1 or to increase a defendant's prior record level pursuant to G.S. 15A-1340.14(b)(1)-(5).” State v. Bethea, 122 N.C. App. 623, 626, 471 S.E.2d 430, 432 (1996). However, N.C. Gen. Stat. § 14-7.6 plainly states that a prior conviction “may not be used to increase a defendant's sentence pursuant to both provisions at the same time.” Id.
    As the State concedes, the record before us clearly shows that the three felony convictions used to indict defendant as an habitual felon were also used to calculate his prior record level. According to his prior record level worksheet, six of defendant's ten prior record points derived from the following three Class H or I felony sentences: (1) 17 October 1994 conviction for possession of cocaine; (2) 11 December 1997 conviction for felony breaking into a coin or currency machine; and (3) 12 March 1998 conviction for felony possession of a stolen automobile. Both the habitual felon indictment and the prosecutor's summary at the plea hearing reflect that these convictions were also used to establish defendant's habitual felon status. Moreover, the prior record points assigned to these convictions had a prejudicial impact on defendant's ultimate prior record level calculation. Therefore, we must vacate defendant's sentence and remand for re-sentencing upon a determination of defendant's prior record level in accordance with N.C. Gen. Stat. § 14-7.6. Inasmuch as a full accounting of defendant's criminal history cannot be made upon the materials of record, “[i]n the interests of justice, both the State and defendant may offer additional evidence at the resentencinghearing.” State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000).
    Defendant's motion to consider defendant's pro se argument and treat the argument as an amendment to his appellant's brief is allowed. Defendant's sentence is vacated and remanded for re- sentencing.
    Vacated and remanded.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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