NO. COA05-1656

NORTH CAROLINA COURT OF APPEALS

Filed: 17 October 2006

    Appeal by defendant from judgment entered 14 July 2005 by Judge Steve A. Balog in Alamance County Superior Court. Heard in the Court of Appeals 13 September 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, for the State.

    Anne Bleyman for the defendant-appellant.

    ELMORE, Judge.

    Christopher Todd Harris (defendant) was arrested on 29 May 2003 by the Mebane Police Department following a stop and search of his vehicle. The search produced approximately 60 grams of cocaine, approximately four pounds of marijuana, and 100 pieces of chocolate containing psilocin. Defendant was charged with nine crimes in connection with the incident. On 14 July 2005, in accordance with a plea agreement, defendant pled guilty to one count each of manufacture of cocaine, possession with intent to sell and deliver cocaine, possession with intent to sell anddeliver psilocin, and possession with intent to sell and deliver marijuana. In return for his guilty pleas, the State dismissed the remaining charges against defendant.
    During the 26-month gap (May 2003 to July 2005) between the arrest and entering of the guilty plea, on 7 June 2004, defendant entered a plea of guilty in Orange County Superior Court to charges of second-degree kidnapping, breaking and entering, assault by pointing a gun, communicating threats, and violating a protective order. On 10 January 2005, defendant was sentenced to 23 to 37 months' imprisonment for these offenses.
    In his plea agreement in the instant case, entered 14 July 2005, defendant was assigned four Prior Record Level points under the state's Structured Sentencing Program for the conviction in Orange County, giving him a total of seven points. As such, his plea agreement stipulated that he be sentenced as a Level III offender, resulting in a term of 35 to 42 months' imprisonment: 10 to 12 months for each of the first three offenses and 5 to 6 months for the last. These sentences are within the presumptive range for Level III.
    Defendant subsequently appealed the Orange County conviction based on that court's refusal to allow him to withdraw his guilty plea. On 21 February 2006, this Court vacated the sentence and remanded the case to the trial court with instructions to allowdefendant to withdraw his guilty plea. See State v. Harris, No. COA05-656 (unpublished).
    Defendant now petitions this Court to remand the instant case for resentencing based on the newly vacated Orange County conviction. Without the four points from that conviction, defendant's Prior Record Level is II rather than III. As such, defendant argues that the current sentence must be invalidated and recalculated without considering the Orange County conviction. We agree.
    “Defendant has no appeal of right since he entered pleas of guilty . . . pursuant to a plea bargain. His purported appeal is therefore subject to dismissal.” State v. Taylor, 308 N.C. 185, 186, 301 S.E.2d 358, 359 (1983). However, as in our consideration of defendant's earlier appeal, we elect to treat defendant's appeal as a petition for writ of certiorari, grant the petition, and hear the appeal. See id.; see also Harris, No. COA05-656.
    This precise issue on very similar facts arose before this Court in State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198, cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001). There, the defendant's Prior Record Level was based in part on a conviction that was overturned after sentencing. Bidgood, 144 N.C. App. at 276, 550 S.E.2d at 204. Removing that overturned conviction resulted in a reduction of the Prior Record Level for Bidgood as itwould for defendant in this case (IV to III for Bidgood; III to II for defendant). Id.
    The Court in that case cited the definition given “prior conviction” in the relevant statute:
A person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime . . . b. In the superior court, regardless of whether the conviction is on appeal to the appellate division[.]

N.C. Gen. Stat. § 15A-1340.11(7) (2005). As the Court noted, “it would be unjust to permit an enhanced sentence to stand where it is made to appear that the Prior Record Level has been erroneously calculated due to a subsequent reversal of a conviction on appeal[.]” Bidgood, 144 N.C. App. at 276, 550 S.E.2d at 204. We see no cogent distinction between Bidgood and the instant case. Thus, we remand this case to the trial court for entry of judgment which accurately reflects defendant's Prior Record Level.
    Because we remand for resentencing on this basis, we do not address defendant's second argument. Further, defendant's petition for writ of certiorari filed 21 March 2006 is hereby rendered moot and will not be separately considered by this Court.
    Remand for resentencing.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***