An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-264

NORTH CAROLINA COURT OF APPEALS

Filed: 17 January 2006

STATE OF NORTH CAROLINA

v .                                 Anson County
                                    Nos. 03CRS050555,
JONATHAN ODELL TEETER                        03CRS003067

    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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