An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

                    NO. COA05-215


Filed: 21 February 2006


v .                         Nash County
                            No. 02 CRS 59249 - 59250

    Appeal by defendants from judgment entered 8 June 2004 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 18 October 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Kelly L. Sandling, for the State (Richardson).

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Kathleen M. Waylett, for the State (Harris).

    Anne Bleyman, for defendant-appellant Richardson.

    Paul C. Pooley, for defendant-appellant Harris.

    JACKSON, Judge.

    Defendants Danny O'Neal Richardson (“Richardson”), and Demetrius Donnell Harris (“Harris”) appeal their convictions and subsequent sentences for felony escape. We find no error in part, and remand in part.
    At trial, the facts tended to show that Richardson and Harris were both inmates at the Nash Correctional Institution (“Nash”) on 13 December 2002. Around 6:30 p.m. that evening, a microwave motion alarm between two of the security fences sounded andofficers responded to the area. Upon arrival, one of the officers saw an inmate, Victor Martin, sitting between the two fences. Located nearby, the officer also found one ladder on the outside fence, one ladder on the inside fence, and clothing and shoes. When found, Martin was clothed, but missing his shoes. Martin was taken into custody without incident.
    An institutional lockdown subsequently was ordered so that prison officials could conduct an inmate count to verify that all inmates were present. The count indicated two inmates from Unit 4 were missing. An identification verification of Unit 4 identified the missing inmates as Harris and Richardson.
    Correctional Captain Danny Murphy reported the escape to the Institutional Administrator, and the proper law enforcement authorities were alerted. Harris and Richardson were located together four days later in Baltimore, Maryland.
    On 20 August 2003, defendant Richardson filed a Request for Trial of Confined Defendant pursuant to North Carolina General Statutes, section 15A-711(c). On 13 October 2003 the Nash County Grand Jury indicted defendants Harris and Richardson.
    The State served an Application and Writ of Habeus Corpus Ad Prosequendum to the Sheriff of Nash County on 6 and 7 November 2003, requesting production of Richardson and Harris respectively, at the Administrative Session of Nash County Superior Court from 10 through 14 November 2003. The Sheriff's Office received both Writs on 10 November 2003. At that same session, Defendant Harris fileda “Request for Trial of Confined Defendant” motion pursuant to North Carolina General Statutes, section 15A-711(c).
    The cases subsequently were continued on the 26 April 2004 date, and again on 24 May 2004, until defendants were tried on 7 June 2004. The one-day trial resulted in the jury's convicting each defendant of one count of escape on 8 June 2004.
    The trial judge, The Honorable Quentin T. Sumner, sentenced each defendant to a minimum term of fourteen and a maximum term of seventeen months to be served consecutively after completion of the sentence each defendant was serving prior to his escape. The court found as an aggravating factor that each defendant had joined with more than one other person in committing the offense, yet neither was charged with conspiracy. Judge Sumner also recommended that each defendant pay an amount for court costs, attorneys' fees, and attorney appointment fees. The amounts recommended were $1,493.50 for Harris, and $1,591.50 for Richardson.
    It is from this judgment that defendants Harris and Richardson appeal; arguing, inter alia, that the trial court erred in not dismissing defendants' charges, erred in sentencing, and that the court erred in calculating defendants' prior record level. We remand on the sentencing grounds, and affirm on all others.
    Both defendants assign as error the fact that the trial court did not grant defendants' motion to dismiss the escape charges because the State did not introduce evidence sufficient to prove that defendants' were within the lawful custody of the State at the time of the alleged escape. We disagree.    “In order to withstand a motion to dismiss, the State's evidence as to each element of the charge must be substantial.” State v. Thomas, 65 N.C. App. 539, 541, 309 S.E.2d 564, 566 (1983). “Substantial evidence in this context means more than a scintilla.” Id. Upon review, the question before this Court is whether there is substantial evidence “(1) of each essential element of the offense being charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). If so, then the motion is properly denied. Id.
    The offense of felonious escape in North Carolina under North Carolina General Statutes, section 148-45 requires the State to prove three elements: (1) that the defendant was in lawful custody, (2) while serving a sentence imposed upon a guilty plea, a plea of nolo contendere, or a conviction for a felony; and (3) the defendant escaped from that custody. State v. Malone, 73 N.C. App. 323, 324, 326 S.E.2d 302, 302-03 (1985).
    Defendants' argue that the State has not met its burden in proving element two of the offense - proof of the underlying felony conviction for which defendants were incarcerated. To prove element two of the felonious escape charge, the defendant may stipulate to the underlying felony. State v. Miller, 146 N.C. App. 494, 503-04, 553 S.E.2d 410, 416 (2001). Absent the defendant's stipulation, the State may introduce testimony, exhibits, a certified copy of the superior court records, or a commitment issued under the hand and seal of the clerk of the superior court.See id., 146 N.C. App. at 503-04, 553 S.E.2d at 416 (articulating examples of competent evidence).
    In this case, the State introduced testimony concerning the defendants' incarceration, as well as the underlying charges, and this testimony was sufficient to allow a jury to find that defendants were lawfully incarcerated for felony convictions at the time of their alleged escape. At trial, Captain Murphy testified that Nash housed only those inmates who were convicted felons. Captain Murphy further testified that defendant Harris was serving a sentence of eighteen years for second degree murder at the time of the alleged escape, and that he was not authorized to leave the facility on the day in question. Testifying to substantially the same background facts against defendant Richardson, Captain Murphy also testified that defendant Richardson was serving a sentence of forty-eight years for his felony conviction of first degree rape. Our Supreme Court has held that this type of testimony is sufficient to meet the State's burden, stating, “[t]estimony concerning the kind of crimes for which the defendant was sentenced to prison is relevant and competent evidence which the state may introduce in order to meet its burden or proof on this issue.” State v. Hammond, 307 N.C. 662, 665, 300 S.E.2d 361, 363 (1983). Accordingly, we affirm defendants' convictions for felonious escape on these grounds.
    Defendants' next argue that the trial court erred in not granting their motion to dismiss the charges predicated on theState's failure to satisfy its obligations under North Carolina General Statutes, section 15A-711. We disagree.
    In pertinent part, North Carolina General Statutes, section 15A-711 states: “If the prosecutor does not proceed pursuant to subsection (a) within six months from the date the request is filed with the clerk, the charges must be dismissed.” N.C. Gen. Stat. Sec. 15A-711 (2003). The key term in the preceding statute is the term “proceed.” The prosecutor “complies with the statute by making a written request to secure defendant's presence at trial within six months of the defendant's request that he do so, whether or not the trial actually takes place during the statutory period of six months plus the sixty days temporary release to local law enforcement officials.” State v. Doisey, 162 N.C. App. 447, 450-51, 590 S.E.2d 886, 890 (2004).
    Here, defendant Richardson made a request for Trial of a Confined Defendant on 20 August 2003. On 13 October 2003 the State indicted defendant Harris, and subsequently on 6 November 2003 the State issued a Writ of Habeus Corpus Ad Prosequendum, which was received by the Nash County Sheriff's Office and served on defendant within a period of a few days. A span of only three months elapsed between the defendants' request for the trial, and the date the State “proceeded” by issuing the Writ of Habeus Corpus, thereby satisfying the State's obligation under the statute. Similarly, the State met its statutory obligation with respect to defendant Harris by issuing a similar Writ of Habeus Corpus for his production on 7 November 2003. For these reasons,we affirm the trial court's decision to deny defendants' motion to dismiss the charges for failure to satisfy the requirements of North Carolina General Statutes, section 15A-711.
    Defendants also argue that North Carolina General Statutes, section 15A-711 is a “speedy trial” statute, and that the trial court should have dismissed the escape charges on the grounds that the defendants were denied their statutory and constitutional rights to a speedy trial. We disagree.
    This Court has stated unequivocally that North Carolina General Statutes, section 15A-711 is not a speedy trial statute, and that since the repeal of the 1989 speedy trial statutes, North Carolina General Statutes, section 15A-701 et seq., defendants' rights to a speedy trial arise only under the United States and North Carolina constitutions. Doisey, 162 N.C. App. at 450, 590 S.E.2d at 889.
    Defendants in the present case filed motions to have their charges dismissed in violation of their rights to a speedy trial pursuant to North Carolina General Statutes, section 15A-711, not the federal or State constitutions. The trial court correctly determined that the statute did not guarantee a right to a trial within a specified period of time, to wit the presiding judge stated, “I think one thing I have to agree with is that Speedy Trial has been eliminated, essentially, by Article 35.” To properly preserve this issue for appellate review, defendants were required to make a motion pursuant to North Carolina General Statutes section 15A-954 (3), alleging a violation of their federaland state constitutional rights, and obtain a ruling on that basis. N.C. R. Ap. P. 10(b)(1); State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). Defendants failed to make this objection, and thus, defendants have waived appellate review of this issue and it is not properly before us.
    Defendants next argue that the trial court erred in improperly allowing the underlying felony conviction for which they were incarcerated to be used as an aggravating factor in enhancing their sentences. We disagree.
    North Carolina General Statutes, section 15A-1340.14 governs the calculation of a defendant's prior record level. The prior record level of a felony offender is calculated by totaling the points assigned to each of the offender's prior convictions that the court finds to have been proven in accordance with the guidelines established. N.C. Gen. Stat. . 15A-1340.14 (a) (2003). North Carolina General Statutes, section 15A-1340.16 (d) states “[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation . . . .” N.C. Gen. Stat. . 15A-1340.16 (d) (2003). Defendants, however, have confused “prior sentence level” with “aggravating factors”. A defendant's prior record level does not affect whether the sentence imposed is in the statutory mitigated, presumptive or aggravated ranges, but rather establishes what those ranges are. North Carolina General Statutes, section 15A-1340.14 (a) does not prohibit the inclusion of the offense for which defendants' are incarcerated in the calculation of defendants' prior record level, even though itspecifically requires exclusion of other convictions, such as instances in which a defendant is convicted of multiple offenses in one calendar week. N.C. Gen. Stat. . 15A-1340.14 (a)(2003).
    In the case of Harris, the underlying second degree murder conviction for which Harris was serving his sentence at the time when he escaped was properly included in the calculation of his prior record level. Harris was assigned six points for his murder conviction and three points for other prior misdemeanor convictions, giving him a total of nine points. Under North Carolina General Statutes section 15A-1340.14 (c), a defendant with “at least 9, but not more than 14 points” is sentenced as a Level IV offender, as Harris was sentenced. N.C. Gen. Stat. Sec. 15A- 1340.14 (c).
    Richardson was assigned nine points for his rape conviction, the conviction for which he was in custody, and he was found to have acquired twelve points total. As noted supra, a defendant with “at least 9, but not more than 14 points” is sentenced as a Level IV offender. Richardson was properly sentenced as a Level IV offender.
    Defendants next argue that the trial court erred in finding a fact for sentencing - that defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy - that increased their sentences above the statutory maximum allowed by the jury's verdict in violation of Blakely v. Washington. Blakely v. Washington, 542 U.S. 296 (2004). We agree.    Blakely was decided after defendants were already sentenced, but this Court since has considered and adopted Blakely's reasoning and applied it to North Carolina's sentencing scheme. State v. Allen, 166 N.C. App. 139, 149, 601 S.E.2d 299, 306 (2004). Blakely requires that any aggravating factors other than prior convictions that are used to enhance sentences beyond the statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt. Id., 166 N.C. App. at 148-49, 601 S.E.2d at 305. The “statutory maximum” for an offense is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury's verdict or admitted by the defendant.” Id. (quoting Blakely, 542 U.S. at 303).
    In the instant case, the allegation that defendants joined with “more than one other person”, presumably Victor Martin, was not admitted by defendants, submitted to a jury, or proven beyond a reasonable doubt, and thus the trial judge improperly used this fact as an aggravating factor.
    The State argues that if error exists, it is harmless because there was evidence sufficient for the judge to find the existence of this aggravator. Our Supreme Court definitively has stated that “in every case in which it was found that a judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.” State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983); Allen, 166 N.C. App. at 150, 601 S.E.2d at 306. As such, we remand the defendants' cases to the trial court for re- sentencing consistent with Blakely and this holding.        Accordingly, we affirm the trial court's determination not to dismiss the charges against defendants and uphold the defendants' convictions, but remand the case for re-sentencing not inconsistent with Blakely or this opinion.
    Affirmed in part. Remanded in part.
    Judges TYSON and JOHN concur.
    Report per Rule 30 (e).

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