Appeal by defendant from judgment entered 17 August 2004 by
Judge Chris M. Collier in Anson County Superior Court. Heard in
the Court of Appeals 16 November 2005.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Elizabeth Leonard McKay, for the State.
Geoffrey W. Hosford for defendant-appellant.
HUNTER, Judge.
Jonathan Odell Teeter (“defendant”) appeals from a judgment
entered 17 August 2004 from a guilty plea for possession of a
firearm by a felon and habitual felon status. For the reasons
stated herein, we affirm the judgment, but remand for correction of
the sentencing worksheet.
Defendant was stopped by officers in Anson County on 31 March
2003, following a tip from an off-duty officer, who had observed
defendant engaged in suspicious activity while putting items into
his car. A search of defendant's vehicle revealed stolen items and
a firearm. Defendant had previously been convicted of multiple
felonies and was not permitted to possess firearms. A plea bargain agreement was offered to defendant, in which
defendant pled guilty to possession of a firearm by a felon and
habitual felon status. Six other charges against defendant were
dismissed. Defendant stipulated to eleven prior record points and
a prior record level of four.
Defendant's guilty plea was accepted. The trial court found
two mitigating factors and sentenced defendant in the mitigated
range to a term of 80 to 105 months. Defendant appeals.
I.
Defendant first contends the trial court should not have
accepted his guilty plea, as he had expressed dissatisfaction with
his attorney. We disagree.
N.C. Gen. Stat. § 15A-1022 (2003) governs acceptance of guilty
pleas by the trial court. The statute requires the trial court to
personally address the defendant and determine, among other
requirements, that “the defendant, if represented by counsel, is
satisfied with his representation[.]” N.C. Gen. Stat. § 15A-
1022(a)(5).
Here, the record reflects that the trial court properly
determined defendant was satisfied with his counsel prior to
accepting the plea agreement. The trial court personally addressed
defendant. After determining that defendant understood the charges
against him and had discussed possible defenses with his attorney,
the trial court made the following inquiries:
THE COURT: Are you satisfied with your
lawyer's services?
THE DEFENDANT: No, sir.
THE COURT: Do you want to strike this
plea?
THE DEFENDANT: No, sir.
THE COURT: Well, did your lawyer help
you negotiate this plea arrangement?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with this
arrangement?
THE DEFENDANT: No, sir.
THE COURT: Well, if you're not satisfied
with it, then I'm not going to accept it. Do
you think it's in your best interest to accept
it?
THE DEFENDANT: Yes, sir, Your Honor.
. . .
THE COURT: Do you feel your lawyer has
served your best interest in negotiating this
plea deal?
THE DEFENDANT: Yes, sir.
Defendant then answered affirmatively to the trial court's
questions regarding his understanding of his right to plead not
guilty, to be tried by a jury, and of the sentence he could
receive. Defendant entered an
Alford plea to the charges of
possession of a firearm by a felon and habitual felon status.
Although defendant initially indicated dissatisfaction with
both his attorney and the plea agreement, defendant informed the
trial court he did not wish to strike the plea, that he believed it
was in his best interest to accept the plea, and that he felt his
attorney had served his best interest in negotiating the plea. Therecord supports the trial court's finding that defendant's plea was
both knowing and voluntary.
Defendant offers as authority
State v. Foster, 105 N.C. App.
581, 414 S.E.2d 91 (1992), where this Court held that it was not
error for a trial court to refuse to accept a guilty plea when a
defendant expressed dissatisfaction with his counsel's
representation and the trial court determined that defendant was
not satisfied.
Foster, 105 N.C. App. at 584-85, 414 S.E.2d at 92-
93. Unlike in
Foster, however, defendant here stated that he felt
his attorney had served his best interest in negotiating the plea
agreement. The evidence of record supports the trial court's
determination that defendant, even though not satisfied by the
restitution part of the plea bargain negotiated by his attorney,
agreed that his attorney represented his best interest and accepted
the plea agreement. Therefore, the trial court did not err in
accepting defendant's guilty plea.
II.
Defendant next contends the trial court erred in calculating
prior record level points for felony sentencing purposes. Although
we agree the trial court erred in calculating defendant's prior
record level points, we find such error to be harmless.
N.C. Gen. Stat. § 14-7.6 (2003) directs that, “[i]n
determining the prior record level, convictions used to establish
a person's status as an habitual felon shall not be used.”
Id.
This Court stated in
State v. Bethea, 122 N.C. App. 623, 471 S.E.2d
430 (1996), that: This provision recognizes that there are two
independent avenues by which a defendant's
sentence may be increased based on the
existence of prior convictions. A defendant's
prior convictions will either serve to
establish a defendant's status as an habitual
felon pursuant to G.S. 14-7.1 or to increase a
defendant's prior record level pursuant to
G.S. 15A-1340.14(b)(1)-(5). G.S. 14-7.6
establishes clearly, however, that the
existence of prior convictions may not be used
to increase a defendant's sentence pursuant to
both provisions at the same time.
Id. at 626, 471 S.E.2d at 432.
Here, the record reveals that one of the prior felonies used
in the habitual felon indictment, 91 CRS 18070, a Class I felony
conviction, was also used in the calculation of defendant's prior
record level. Defendant's prior record level points were therefore
improperly calculated under N.C. Gen. Stat. § 14-7.6.
Such error is harmless, however. Defendant was sentenced as
a prior record level IV, with a total of eleven prior record level
points. The Class I felony that was included in error in
calculating defendant's prior record level added two points to
defendant's total.
See N.C. Gen. Stat. § 15A-1340.14(b)(4) (2003)
(assigning two points to a prior felony Class I conviction). Even
without the Class I felony that was erroneously included in the
calculations, defendant would still have a total of nine prior
record level points. A prior record level IV for felony sentencing
is properly found when a defendant has “[a]t least 9, but not more
than 14 points.” N.C. Gen. Stat. § 15A-1340.14(c)(4). As
defendant's prior record level, even without the erroneous
inclusion of the conviction used in the habitual felon indictment, would remain a level IV we find the error to be harmless.
See
State v. Lowe, 154 N.C. App. 607, 610-11, 572 S.E.2d 850, 854
(2002) (holding error of inclusion of a point harmless when the
total points still remained within the same prior record level).
Although we find such error harmless, we remand for correction of
the sentencing worksheet.
As the trial court properly accepted defendant's guilty plea,
and as the error in calculation of defendant's prior record level
points was harmless, we affirm the judgment, but remand for
correction of the sentencing worksheet.
Affirmed and remanded for correction of the sentencing
worksheet.
Judges McCULLOUGH and GEER concur.
Report as per Rule 30(e).
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