An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-947

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

STATE OF NORTH CAROLINA

         v.                        Forsyth County
                                Nos. 00 CRS 40391, 57553,
MICHAEL JUNIOR COOPER                    57958, 01 CRS 4207
    

    Appeal by defendant from judgments entered 4 February 2004 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 14 March 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart and Assistant Attorney General Christopher W. Brooks, for the State.

    Allen W. Boyer, for defendant-appellant.

    CALABRIA, Judge.

     On 22 January 2001, Michael Junior Cooper (“defendant”) was indicted for habitual misdemeanor assault and attaining the status of an habitual felon. On 30 April 2001, defendant was indicted for one count each of larceny of a motor vehicle, possession of a stolen vehicle, delivering a schedule II controlled substance, and conspiracy to violate the Controlled Substances Act. The case was tried at the 20 August 2001 session of Forsyth County Superior Court. The jury found defendant guilty of possession of a stolen vehicle but deadlocked as to the remaining charges.
    Pursuant to a subsequent plea agreement, defendant pled guilty to the charges of larceny of a motor vehicle, delivering a scheduleII controlled substance, conspiracy to violate the Controlled Substances Act, habitual misdemeanor assault and attaining the status of an habitual felon. In accordance with the express terms of the plea agreement, the offenses were consolidated for judgment. The trial court found defendant had fifteen prior record points and sentenced him as a Prior Record Level V, Class C felon for a minimum term of 151 months and a maximum term of 191 months in the North Carolina Department of Correction (the “NCDOC”). Defendant appealed.
    In an unpublished opinion, State v. Cooper, 154 N.C. App. 521, 572 S.E.2d 442 (2002) , this Court determined the trial court erred in assigning points to defendant's prior convictions for misdemeanor assault , as those convictions were also used to establish the charge of habitual misdemeanor assault. Accordingly, the judgment was reversed and remanded for resentencing. Id.
    On remand, the trial court entered two concurrent judgments in place of the original judgment. In the first judgment, the trial court consolidated the offenses of larceny of a motor vehicle, possession of a stolen vehicle, delivering a schedule II controlled substance, conspiracy to violate the Controlled Substances Act and attaining the status of an habitual felon. Because the habitual misdemeanor assault charge was not included, the trial court included the previous assault convictions when calculating defendant's prior record level. The trial court found defendant had fifteen prior record points and sentenced him as a Prior Record Level V, Class C felon to a minimum term of 151 months and amaximum term of 191 months in the NCDOC. In the second judgment, the trial court entered judgment on the sole remaining offense of habitual misdemeanor assault. The trial court removed the previous misdemeanor assault convictions from its calculations and sentenced defendant as a Prior Record Level IV, Class H felon to a mitigated, concurrent term of seven to nine months in the NCDOC. Defendant appeals .
     Defendant asserts the trial court erred in resentencing by breaching the terms of the plea agreement by separating the habitual misdemeanor assault conviction from the other convictions. Defendant argues that only by consolidation of all offenses, at a prior record level of IV, can the plea agreement be honored and double jeopardy be avoided. We agree.
     This Court has stated that “due process mandates strict adherence to any plea agreement.” State v. Blackwell, 135 N.C. App. 729, 731, 522 S.E.2d 313, 315 (1999). “'[W]hen a prosecutor fails to fulfill promises made to the defendant in negotiating a plea bargain, the defendant's constitutional rights have been violated and he is entitled to relief.'” Id. at 732, 522 S.E.2d at 316 (quoting Motor Co. v. Board of Alcoholic Control, 35 N.C. App. 536, 538, 241 S.E.2d 727, 729 (1978)). “Typically, relief is either specific performance of the plea agreement or withdrawal of the plea itself (i.e. rescission).” Id.
    In the instant case, defendant entered into a plea agreement in which the State specifically agreed to consolidate all charges into one judgment. By separating the habitual misdemeanor assaultconviction from the other convictions, the trial court breached the plea agreement. We hold that the proper remedy for this breach is specific performance. See State v. Rodriguez, 111 N.C. App. 141, 145, 431 S.E.2d 788, 790 (1993) (holding defendant was entitled to the specific performance of a violated plea agreement). Accordingly, the trial court is instructed to enter a new judgment consolidating all the charges. Additionally, consistent with this Court's previous unpublished opinion, State v. Cooper, 154 N.C. App. 521, 572 S.E.2d 442 (2002), defendant's prior record level should be calculated by excluding the prior convictions for misdemeanor assault. This matter is remanded for resentencing.
    Remanded for resentencing .
    Chief Judge MARTIN and Judge McCULLOUGH concur.
     Report per Rule 30(e).
    

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