State v Oglesby, (04-1576) 07/05/2005

On writ of certiorari to review judgment entered 18 February 2002 by Judge William Z. Wood, Jr. in Superior Court, Forsyth County. Heard in the Court of Appeals 20 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

Peter Wood for defendant-appellant.

McGEE, Judge.

    Defendant was charged with one count of breaking and entering a building, multiple counts of breaking and entering a motor vehicle, possession of burglary tools and having attained the status of habitual felon. Pursuant to a detailed plea agreement, defendant pleaded guilty to all of the charges on 18 February 2002. The agreement provided, "In exchange for Defendant's guilty pleas to all charges, the State agrees that all charges shall be consolidated into one Class H felony and that Defendant shall be sentenced as an Habitual Felon, at the low end of the mitigated range at record level IV."
    After accepting defendant's guilty plea, the trial court foundthat defendant had ten prior record points, and a corresponding prior record level of IV. The trial court sentenced defendant to a minimum term of 80 months and a maximum term of 105 months in prison, which is the lowest mitigated sentence available for a Class C felon with a prior record level of IV. Significantly, however, the judgment erroneously reflects that the prison term was within the presumptive range of sentences and fails to make any mitigating findings. In an order entered 16 August 2002, this Court allowed defendant's petition for writ of certiorari for the purpose of reviewing the trial court's judgment entered on defendant's guilty plea. The order stated that the review would be "limited to those issues upon which defendant had a right to direct appeal under N.C. Gen. Stat. § 15A-1444(a2)(2001)."
    Defendant's sole argument on appeal is that the trial court erred in incorrectly computing his prior record level. The State concedes that the trial court erred in calculating defendant's prior record points, and that the judgment incorrectly reflects that defendant was sentenced within the presumptive range with no mitigating factors.
    It appears that defendant's prior record points were incorrectly calculated to be ten, instead of nine. However, this error was harmless. Under N.C. Gen. Stat. § 15A-1340.14(b)(6), defendant should have received one additional point because defendant had previously been convicted of felonious breaking and entering, an offense for which "all the elements of the present offense are included[.]" Therefore, defendant was properlyassigned ten prior record level points and record level IV offender.
    The judgment, however, erroneously fails to include mitigating factors to support the sentence of 80 - 105 months, which is from the lower end of the mitigated range. See State v. Bright, 135 N.C. App. 381, 520 S.E.2d 138 (1999)(requiring that the trial court make written findings when deviating from the presumptive range of sentences, even in instances where the defendant enters into a plea agreement). In fact, the judgment incorrectly shows that defendant received a presumptive sentence.
    We, therefore, vacate the judgment and remand this matter to the trial court for entry of proper findings to support the mitigated sentence agreed upon by the parties. On remand, the trial court should also recalculate defendant's prior record points to accurately reflect defendant's prior record.
    Vacated and remanded.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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