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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1046
        

NORTH CAROLINA COURT OF APPEALS

Filed: 3 July 2007

STATE OF NORTH CAROLINA

v.                         Forsyth County
                            Nos.    04 CRS 15146
OMAR DEMITRIOUS PEARSON,                04 CRS 52135
            Defendant.            04 CRS 62068
                                04 CRS 62069
                                05 CRS 57112
                                05 CRS 58384

    Appeal by defendant from a judgment entered 17 August 2005 by Judge Julius A. Rousseau in Forsyth County Superior Court. Heard in the Court of Appeals 22 March 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Richard H. Bradford, for the State.
                                
    Robert W. Ewing for defendant.

    BRYANT, Judge.

    Defendant appeals from a judgment entered 17 August 2005, sentencing him to 130 to 165 months in prison with an additional ten to twelve months to run concurrently. We affirm the trial court's judgment.
    On 5 April 2004, defendant was indicted for felony possession of cocaine, resisting a public officer and having attained the status of an habitual felon. The habitual felon indictment stemmed from three prior convictions: (1) felonious breaking and entering a motor vehicle, (2) felony possession of stolen property, and (3) felony possession of cocaine. On 17 August 2005, defendant was indicted on three counts of breaking and entering a motor vehicle;two counts of misdemeanor larceny; one count of possession of a stolen motor vehicle; and one count of possession of stolen property.
    On 20 April 2004, the State offered defendant a plea arrangement in which his pending charges of felony possession of cocaine and habitual felon would be consolidated into one charge, and defendant would be sentenced in the minimum mitigated range for a Class C Habitual Felon. A second plea offer signed by defendant on 17 August 2005 stated “[a]ll charges will be consolidated for sentencing as a Class C, Level IV felony.” The trial court then performed an inquiry to determine defendant's understanding and acceptance of the plea arrangement.     
    During the inquiry, defendant questioned the length of jail time he would face according to the plea offer. He also expressed dissatisfaction with his counsel. The assistant district attorney informed the judge that the sentence would run in the presumptive range, since the transcript of plea did not include a sentencing recommendation. Defendant provided evidence of mitigating factors, such as his father's dependence on his ability to work full time. The trial court did not make any findings concerning the mitigating factors presented.
    Defendant admitted his habitual felon status and stipulated to his prior record of conviction and further stipulated that record placed him at a Prior Record Level IV. The trial court found that defendant had a Prior Record Level IV and imposed a sentence in the presumptive range for the felony possession charge as an habitualfelon of 130 to 165 months. The trial court also consolidated other charges into the charge of possession of a stolen vehicle, and imposed a concurrent sentence of ten to twelve months. Defendant appeals.

_________________________

    Defendant argues the trial court erred by (I) sentencing him as a Record Level IV offender, rather than a Record Level III offender. Defendant further argues he (II) received ineffective assistance of counsel when his counsel stipulated he was a prior Record Level IV; and (III) that his due process rights were violated when the State breached the provisions of the plea agreement by representing to the trial court that he could only be sentenced in the presumptive range. For the reasons below, we affirm the judgment of the trial court.
    
    I

    Defendant argues the trial court erred by sentencing him as a Record Level IV offender rather than a Record Level III offender since he only had eight prior points based upon the worksheet listing his prior convictions. We disagree.
    Defendant contends that the State must prove his prior record level by a preponderance of the evidence. State v. Bartley, 156 N.C. App. 490, 501, 577 S.E.2d 319, 326 (2003). Under N.C. Gen. Stat. . 15A-1444(a1), a defendant may appeal a judgment based on a guilty plea only when the minimum sentence of imprisonment does not fall within the presumptive range for his prior record or conviction level and class of offense. N.C.G.S. . 15A-1444(a1)(2005). The minimum presumptive sentence range for a Class C, Prior Record Level IV is 107 months minimum to 133 months maximum. N.C. Gen. Stat. § 15A-1340.17(c)(4) (2005). Because defendant's sentence of 130 months to 165 months maximum falls within the range of a Prior Record Level IV, he does not have a right to appeal. Id. However, as defendant has also filed a petition for writ of certiorari in his brief, we grant defendant's petition and review this case on the merits.
    The State established defendant was entitled to Record Level IV standing as well as the status of being an habitual felon. Defendant argues he has only eight prior points on his record based on his sentencing worksheet, placing him at a Prior Record Level III for sentencing. Defendant's point total accounts for offenses that may only be counted as one conviction, repeat offenses committed on the same day, as well as other offenses. However, according to N.C. Gen. Stat. . 15A-1340.14(b)(6), an additional point is assessed “[i]f all the elements of the present offense are included in any offense for which the [defendant] was convicted, whether or not the prior offense or offenses were used in determining the defendant's prior record level.” N.C.G.S. § 1340.14(b)(6)(2005).
    Here, an additional point is assessed because the elements of defendant's felony conviction for possession of cocaine in 97-CR- 6431 are the same as the elements of the conviction for felony possession of cocaine in 04-CRS-52135, which is treated as a Class I felony. Defendant failed to include the extra point necessaryunder the statute, making his total prior level points nine, not eight. Thus, defendant is properly classified as a Prior Record Level IV felon.
    Defendant's sentencing worksheet does not include the additional point required under N.C. Gen. Stat. . 15A- 1340.14(b)(6). This is harmless error since the actual sentence given would not have been different. See State v. Allah, 168 N.C. App. 190, 195-96, 607 S.E.2d 311, 315 (2005) (“Assuming arguendo the one point was erroneously assessed, defendant would still have seven prior record points and would have properly been assigned a prior record level of III. As removal of the prior record point would not change defendant's prior record level, this error is therefore deemed harmless.”); State v. Adams, 156 N.C. App. 318, 324, 576 S.E.2d 377, 381-82 (2003) (harmless error as defendant would still have a prior record level of VI with twenty prior record points where the trial court concluded that defendant's prior record level was VI based upon its allegedly erroneous finding that defendant had twenty-one prior record points). This assignment of error is overruled.
II

    Defendant argues that his right to effective assistance of counsel was breached when his attorney stipulated that he was a Prior Record Level IV. We disagree.
    A claim on appeal for ineffective assistance of counsel can only be granted if the appellant can prove that counsel's performance was deficient, and that the deficiency prejudiced thedefense. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). Defendant argues counsel was deficient because he failed to correctly assess his prior record level points on the Worksheet, and by stipulating to a higher record level, allowing defendant to be sentenced at a higher level than required. Defendant contends counsel's actions prejudiced the defense because he received at least fourteen more months minimum and sixteen more months maximum than he would have received had he been assessed at a Prior Record Level III. Defendant asserts that but for counsel's incorrect stipulation, the trial court might have caught the mistake in calculation and properly concluded that defendant should have been assessed at a Prior Record Level III.
    “[T]he defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[.]” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. Also, the test has been interpreted to mean whether there is, “a reasonable probability that absent counsel's deficient performance, the result of the proceeding would have been different.” State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987).
    Notwithstanding counsel's stipulation, for the reasons stated in Issue I, supra, we determine the trial court would have reached the same conclusion had the additional point required by N.C. Gen. Stat. . 15A-1340.14(b)(6) been calculated. Because we find neither manifest unreasonableness by counsel nor the probability of a morefavorable outcome had defense counsel not stipulated to defendant's prior record level, we overrule defendant's assignment of error. See State v. Frazier, 142 N.C. App. 361, 368, 542 S.E.2d 682, 687 (2001) (“If this Court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, we do not determine if counsel's performance was actually deficient.”). This assignment of error is overruled.
III

    Defendant argues that his due process rights were violated when the State of North Carolina breached the provisions of the written plea agreement when it represented to the trial court that defendant could only be sentenced in the presumptive range. We disagree.
    Defendant signed a plea agreement stating that all charges would be consolidated for sentencing as a Class C, Level IV felony. The trial court then performed a sentencing inquiry as required by N.C. Gen. Stat. . 15A-1022. Defendant argues that since the plea agreement did not state that the presumptive range would be the only method of determining sentencing, the State breached its contract with defendant by making such a representation to the trial court. Defendant further argues the plea agreement would then be void since it curtailed defendant's constitutional rights while the prosecutor failed to fulfill his obligations under the plea agreement. Finally, defendant states that because of theState's representation, the trial court did not consider the mitigating factors presented by defendant.
    Defendant's argument has no merit. The plea offer signed by defendant clearly stated that, “[a]ll charges will be consolidated for sentencing as a Class C, Level IV felony.” Defendant rejected the plea offer at first, crossing out the sentencing term, then later accepted the offer including the term. By his signature on the plea agreement, defendant knew that in accepting the offer he agreed to be sentenced in the presumptive range for a Class C, Level IV felony.
    Further, a trial court has discretion in sentencing, even when the plea agreement contains a sentencing recommendation. State v. Bivens, 155 N.C. App. 645, 648, 573 S.E.2d 259, 261-62 (2002). There is no requirement for the trial court to make any findings if the sentence is within the presumptive range. N.C.G.S. . 15A- 1340.16 (2005). “The court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences specified in G.S.15A-1340.17(c)(2).” N.C.G.S. . 15A-1340.16(c); See State v. Streeter, 146 N.C. App. 594, 598, 553 S.E.2d 240, 242- 43 (2001) (holding the trial court did not err by allegedly failing to find the existence of the statutory mitigators and by imposing an aggravated range sentence without finding the existence of an aggravating factor, because: (1) the decision to depart from the presumptive range is within the trial court's discretion; (2) the need for findings is only triggered by N.C. Gen. Stat. §15A-1340.16(c) when a court moves outside the presumptive range; and (3) the trial court did not depart from the presumptive range). This assignment of error is overruled.
    Affirmed.
    Judges STEELMAN and LEVINSON concur.
    Report per Rule 30(e).

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