Appeal by defendant from judgment entered 10 January 2007 by
Judge Susan Taylor in Davidson County Superior Court. Heard in the
Court of Appeals 30 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Brandon L. Truman, for the State.
Don Willey, for defendant-appellant.
Jermaine Larrod Burton (defendant) appeals from judgment
entered sentencing him as an habitual felon under N.C. Gen. Stat.
. 15A-646. We affirm in part and remand in part for resentencing.
On 11 April 2005, defendant was indicted for possession of
cocaine with intent to sell or deliver pursuant to N.C. Gen. Stat.
§ 90-95(a)(1) and for maintaining a place for sale of a controlled
substance pursuant to N.C. Gen. Stat. § 90-108(a)(7). By a
separate bill of indictment, defendant was charged with attaining
habitual felon status pursuant to N.C. Gen. Stat. § 14-7.1. On 18
August 2006, defendant entered into a plea agreement, which
provided that in exchange for pleading no contest to maintaining adwelling for controlled substances and admitting his habitual felon
status, the State would dismiss pending charges against him. The
trial court found, as a mitigating factor, defendant had accepted
responsibility for his criminal conduct. The trial court sentenced
defendant to eighty to 105 months imprisonment.
On 22 August 2006, defendant filed a motion challenging his
habitual felon indictment. Defendant alleged his habitual felon
indictment relied upon two felonies committed before he reached
eighteen years of age, which is a violation of N.C. Gen. Stat. .
14-7.1. The trial court vacated defendant's plea, judgment and
commitment order, and sentence. On 11 September 2006, a
superseding habitual felon indictment was issued and contained
underlying felonies defendant had committed after attaining
eighteen years of age.
Defendant pled no contest to the charge of maintaining a
dwelling for sale of controlled substances and admitted his
habitual felon status. In exchange, the State again dismissed
pending charges against defendant. This plea agreement did not
contain a sentencing recommendation.
The trial court sentenced
defendant as an habitual felon to 120 to 153 months imprisonment,
a term within the presumptive range for a prior record level IV.
Defendant argues the trial court erred by: (1) sentencing him
as an habitual felon and (2) imposing an improper sentence.
III. Superceding Habitual Felon Indictment
Defendant argues the trial court erred in sentencing him as an
habitual felon because the State filed a superseding indictment
charging defendant as an habitual felon after entry of defendant's
guilty plea in violation of N.C. Gen. Stat. § 15A-646 (2005).
Defendant argues the superseding indictment was fatally defective.
N.C. Gen. Stat. § 15A-646 (2005) provides:
If at any time before entry of a plea of
guilty to an indictment or information, or
commencement of a trial thereof, another
indictment or information is filed in the same
court charging the defendant with an offense
charged or attempted to be charged in the
first instrument, the first one is, with
respect to the offense, superseded by the
second and, upon the defendant's arraignment
upon the second indictment or information, the
count of the first instrument charging the
offense must be dismissed by the superior
court judge. The first instrument is not,
however, superseded with respect to any count
contained therein which charged an offense not
charged in the second indictment or
Here, the trial court granted defendant's motion and vacated
his original habitual felon indictment and no contest plea. A
second habitual felon indictment was issued containing all
underlying felonies defendant committed as an adult. Defendant
entered a subsequent no contest plea to the charge of maintaining
a dwelling for sale of controlled substances and to attaining
habitual felon status. N.C. Gen. Stat. . 15A-646 is inapplicable
under these facts.
Our Supreme Court has held:
It has long been the law in North Carolina
that the existence of former bills ofindictment for an offense constitute no legal
impediment to the putting the defendant on
trial upon the last and more perfect bill, at
the election of the Solicitor. This is the
recognized practice, and is convenient and
necessary in the administration of the
criminal law for the removal of all grounds of
exception to the form of the bills previously
sent, or for any irregularity in the manner of
acting upon them.
State v. Carson
, 320 N.C. 328, 333, 357 S.E.2d 662, 665 (1987)
(quoting State v. Hastings
, 86 N.C. 596, 597 (1882). Defendant was
properly sentenced as an habitual felon. This assignment of error
Defendant also contends the trial court improperly sentenced
him to 120 to 153 months imprisonment in violation of N.C. Gen.
Stat. § 15A-1335.
N.C. Gen. Stat. § 15A-1335 (2005) provides:
When a conviction or sentence imposed in
superior court has been set aside on direct
review or collateral attack, the court may not
impose a new sentence for the same offense, or
for a different offense based on the same
conduct, which is more severe than the prior
sentence less the portion of the prior
sentence previously served.
A defendant whose sentence has been successfully challenged
cannot receive a more severe sentence for the same offense or
conduct on remand. State v. Wagner
, 356 N.C. 599, 602, 572 S.E.2d
777, 779 (2002).
Defendant was originally sentenced in the mitigated range to
a term of 80 to 105 months imprisonment. After defendant's plea
and sentence were vacated, a second habitual felon indictment wasissued. Defendant again pled no contest to maintaining a dwelling
for sale of controlled substances and attaining habitual felon
status. Defendant was sentenced to 120 to 153 months imprisonment.
The subsequent sentence violated N.C. Gen. Stat. § 15A-1335.
Defendant's original sentence was 80 to 105 months imprisonment for
the same offense and status. The trial court erred by imposing a
more severe sentence for the same offense or conduct for which
defendant was originally sentenced. Id
. We affirm defendant's
convictions and remand this case to the trial court for
resentencing in accordance with this opinion.
The trial court did not err when it sentenced defendant as an
habitual felon. The trial court erred when it imposed a more
severe sentence for the same offense for which defendant was
originally sentenced. N.C. Gen. Stat. . 15A-1335. We vacate the
judgment and remand for resentencing in accordance with this
Affirmed in Part; Vacated in Part and Remanded for
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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