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.
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
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
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
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 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.
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
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.
However, as defendant has also filed a petition for writ of
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. §
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.
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.
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
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.
, 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.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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