State v Leatherwood, (04-1437) 07/05/2005

Appeal by defendant from judgments entered 12 May 2004 by Judge J. Marlene Hyatt in Superior Court, Haywood County. Heard in the Court of Appeals 20 June 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Fred Lamar, for the State.

Hall & Hall, PC, by Susan P. Hall, for defendant-appellant.

McGEE, Judge.

    Defendant John D. Leatherwood was found guilty on 25 March 2002 of attempting to obtain property by false pretense and obtaining property by false pretense. Defendant pleaded guilty to his status as an habitual felon in both cases. The trial court sentenced defendant as a prior record level VI to concurrent, presumptive terms of 138 months to 175 months in prison. The trial court awarded defendant nine days of credit for pre-trial confinement under N.C. Gen. Stat. § 15-196.1 (2004). On appeal, our Court upheld defendant's convictions but remanded "for a new sentencing hearing to properly determine defendant's prior record level." State v. Leatherwood, No. COA02-1467, 2003 N.C. App. LEXIS1851, *13 (N.C. Ct. App. Oct. 7, 2003) (unpublished).
    At the 12 May 2004 resentencing hearing, the trial court found defendant to have sixteen prior record points and a prior record level V and sentenced him again within the applicable presumptive range to concurrent prison terms of 138 months to 175 months in prison. The judgments entered by the trial court provide that "defendant shall be given credit for 72 days spent in confinement prior to the date of this [j]udgment[,]" sixty-three more days of credit than were awarded at sentencing on 25 March 2002. Defendant appeals.
     In his assignment of error, defendant argues generally that his "constitutional and due process rights . . . were violated by the entry of this sentencing order." Such a broadside assignment of error is insufficient to place an issue before this Court for review under N.C.R. App. P. 10(c)(1), particularly where defendant raised no constitutional or due process concerns at the resentencing hearing. See State v. Jaynes, 342 N.C. 249, 263, 464 S.E.2d 448, 457 (1995) (noting that constitutional claims may not be raised for the first time on appeal), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996); see also N.C.R. App. P. 10(a), (b)(1). Defendant argues that the trial court violated three sentencing statutes, N.C. Gen. Stat. §§ 15-961.1, 15A-1335, and 15A-1340.17. In that "[s]tatutory violations . . . are reviewable regardless of objections at the trial court[,]" State v. Tirado, 358 N.C. 551, 571, 599 S.E.2d 515, 529 (2004) (citing State v. Golphin, 352 N.C. 364, 411, 533 S.E.2d 168, 202 (2000), cert.denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001)), cert. denied sub nom Queen v. North Carolina, __ U.S. __, 161 L. Ed. 2d 285 (2005), we exercise our discretion under N.C.R. App. P. 2 to review defendant's sentences, notwithstanding the absence of corresponding assignments of error in the record on appeal.
    Defendant first insists that his status as an habitual felon with a prior record level V "requires a presumptive sentence of 121-151 months" under N.C. Gen. Stat. § 15A-1340.17(c). This argument is without merit, reflecting a mis-reading of the Structured Sentencing grid. Subsection (c) of N.C. Gen. Stat. § 15A-1340.17 sets forth only the "range of minimum durations" for sentences imposed under Structured Sentencing, based upon various felony classifications and prior record levels. In this case, the trial court chose minimum terms of 138 months for each of defendant's two offenses. Having admitted his habitual felon status, defendant was subject to sentencing as a Class C felon. See N.C. Gen. Stat. § 14-7.6 (2004). The 138-month minimum imposed by the trial court falls within the applicable presumptive range of minimums for a Class C felony and prior record level V. Under N.C. Gen. Stat. § 15A-1340.17(e), the corresponding maximum sentence for a 138-month minimum term is 175 months. Having sentenced defendant to terms of 138 to 175 months, the trial court entered valid presumptive sentences under N.C. Gen. Stat. § 15A-1340.17.
    Defendant next contends that the trial court at resentencing "inexplicably imposed exactly the same sentence imposed by the original judge, despite" reducing his prior record level from VI toV. Although defendant was assigned a lower prior record level at resentencing, his sentence remains within the applicable presumptive range for his offense under N.C. Gen. Stat. § 15A- 1340.17(c). The fact that defendant was resentenced to the same prison term he received at trial does not violate the terms of N.C. Gen. Stat. § 15A-1335, inasmuch as the statute proscribes only the imposition of a sentence on remand "which is more severe than the prior sentence less the portion of the prior sentence previously served." (emphasis added). As discussed below, the record contains no evidence that the trial court failed to credit defendant for any "portion of the prior sentence previously served." N.C. Gen Stat. § 15A-1335.
    Defendant further asserts that the trial court violated N.C. Gen. Stat. § 15-196.1, by failing to award him "credit for all of the time he had served prior to trial in 2002, as well as from his first sentencing in 2002 until his resentencing in May, 2004." The pertinent provision of the statute provides as follows:
        The minimum and maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in confinement in any State or local correctional . . . institution as a result of the charge that culminated in the sentence. . . . Provided, however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject.

N.C. Gen. Stat. § 15-196.1 (2003); see also State v. Farris, 336 N.C. 552, 556, 444 S.E.2d 182, 185 (1994) (holding that N.C. Gen. Stat. § 15-196.1 reflects "the legislature's intention that adefendant be credited with all time defendant was in custody and not at liberty as the result of the charge"). Defendant argues in denying him credit for his prior confinement, the trial court effectively imposed a more severe sentence on resentencing than was originally imposed at trial, as proscribed by N.C. Gen. Stat. § 15A-1335.
    While we agree that N.C. Gen. Stat. § 15-196.1 entitles defendant to credit against his sentence for all time spent in custody as the result of the specific charges before us, nothing in the materials before this Court suggests that he was denied any credit due to him. The transcript reflects the following exchange between defense counsel and the trial judge at the conclusion of the resentencing hearing:
        [COUNSEL]: Your Honor, the only other request [defendant] would make I think the original judgment was given [sic] credit for pretrial confinement.

        THE COURT: Nine days.

        [COUNSEL]: [Defendant] indicates that actually from January 7th until the day of sentencing --

        THE COURT: You can certify that. I'll put it whatever date -- however many days you certify.

The trial court ultimately awarded defendant seventy-two days of credit for prior confinement, sixty-three more days than he was originally granted in the judgments entered 25 March 2002. Defendant has presented no evidence that he was subject to any additional confinement under the present charges, or that the trial court failed to give credit for any such period certified bydefendant's counsel. Further, the State has not contested defendant's entitlement to credit for the period of confinement between 25 March 2002 and 12 May 2004 and we are unpersuaded that defendant will not be properly credited for this time. The burden is on defendant to show error and he has not met that burden.
    Affirmed.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***