Appeal by defendant from judgment entered 30 June 2005 by
Judge J. Gentry Caudill in Mecklenburg County Superior Court.
Heard in the Court of Appeals 5 June 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Brenda Eaddy, for the State.
Eric A. Bach for defendant-appellant.
HUNTER, Judge.
On appeal, James Lindsay (“defendant”) contends that the trial
court erred in calculating his prior record level for sentencing
when it assessed points for being on probation, for convictions
occurring in the same week of superior court, and for an out-of-
state robbery conviction. After careful review, we hold that any
miscalculation by the trial court did not affect defendant'ssentencing and was therefore harmless error. We therefore find no
error.
On 27 June 2005, defendant pled guilty to assault inflicting
serious bodily injury, a class F felony, with no agreement on
sentencing. The prior record level worksheet prepared by the State
indicated that defendant had twenty-nine prior record level points,
corresponding to a prior record level VI for sentencing. Defendant
agreed and stipulated to the prior record level and points. The
trial court accepted defendant's plea and found no aggravating or
mitigating factors. On 30 June 2005, the court sentenced defendant
within the presumptive range to imprisonment for a minimum of
thirty-nine months and a maximum of forty-seven months.
Defendant appeals pursuant to N.C. Gen. Stat. § 15A-1444(a2)
(2005), which allows a defendant to appeal a guilty plea as a
matter of right when the defendant's prior record level was
improperly calculated.
I.
[1] Defendant argues that the trial court incorrectly
calculated his prior record level pursuant to N.C. Gen. Stat. §
15A-1340.14 (2005). Specifically, he contends that five of the
twenty-nine points were improperly assessed, so his correct point
total is twenty-four. He further asserts that, even though level
VI includes all point totals from nineteen up, this error was not
harmless because the trial court might have considered a shorter
sentence within the presumptive range had he been assigned only
twenty-four points. This argument is without merit. This Court applies a harmless error analysis to improper
calculations of prior record level points.
State v. Bethea, 173
N.C. App. 43, 61, 617 S.E.2d 687, 698 (2005);
State v. Smith, 139
N.C. App. 209, 219-20, 533 S.E.2d 518, 524 (2000). In both
Bethea
and
Smith, the defendants argued that the trial courts erroneously
assessed points in determining their prior record levels.
Id.
This Court held that even if the trial courts did miscalculate the
points involved, this constituted harmless error, because
deducting the improperly assessed points would not affect the
defendants' record levels.
Id.
Defendant makes a series of arguments as to why individual
points were incorrectly assessed. However, whether the trial court
miscalculated as to those five points is not dispositive in this
case. Assuming
arguendo that the trial court improperly included
all five points, subtracting them would still leave defendant's
prior record level at VI. Defendant was correctly sentenced within
the presumptive range of an offender with a prior record level VI
pursuant to N.C. Gen. Stat. § 15A-1340.17. A sentence in the
presumptive range is accepted as valid, unless the record shows
that the trial court considered improper evidence.
State v.
Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987).
While the trial court might have erred in calculating
defendant's points, any such error does not affect defendant's
record level of VI or the appropriate presumptive sentencing range,
and thus the error is harmless. We therefore find no prejudicial
error.
II.
[2] In its brief, the State makes a motion to dismiss, arguing
that defendant's assignment of error violated Rule 10(c)(1) of the
North Carolina Rules of Appellate Procedure. We deny the motion.
Rule 10(c)(1) provides that an assignment of error must be
stated plainly and concisely and “is sufficient if it directs the
attention of the appellate court to the particular error about
which the question is made[.]” N.C.R. App. P. 10(c)(1).
Defendant's third assignment of error states:
The trial court's error in determining the
Defendant's criminal history category pursuant
to the North Carolina Structured Sentencing
Act. The Defendant asserts as a legal basis
Chapter 15A of the North Carolina General
Statutes and the Due Process Clause of the
United States Constitution, N.C. Constitution
Art. I, § 19. The Defendant asserts
constitutional error, structural error,
prejudicial error, or in the alternative plain
error.
Transcript page 20.
Record pages 16-20.
The State cites
State v. Mullinax, 180 N.C. App. 439, 637
S.E.2d 294 (2006), to support its argument. In
Mullinax, this
Court ruled that the defendant violated Rule 10(c)(1) because his
assignment of error was too vague when it stated only that the
defendant's “prior record level was incorrectly calculated.”
Id.
at 441, 637 S.E.2d at 296. The instant case is distinguishable
from
Mullinax in that defendant's assignment of error in our case
is not as brief or vague. In fact, defendant references specific
statutes and the applicable transcript and record page numbers. Wefind that defendant's assignment of error plainly and concisely
states a specific trial court error. Therefore, the State's motion
to dismiss is denied.
III.
Because the trial court's miscalculation of defendant's points
does not affect his record level for sentencing, we find no error
as to defendant's active prison sentence of thirty-nine to forty-
seven months. Furthermore, we find that defendant's assignment of
error complies with N.C.R. App. P. 10(c)(1) because it is
sufficiently specific, and thus the State's motion to dismiss is
denied.
No error.
Judges WYNN and BRYANT concur.
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