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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 November 2007
STATE OF NORTH CAROLINA
v. Forsyth County
No. 04 CRS 060931
JANIE LATONYA PERKINS
Appeal by defendant from judgment entered 25 January 2007 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 16 November 2007.
Attorney General Roy Cooper, by Associate Attorney General
Catherine F. Jordan, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
Janie LaTonya Perkins (defendant) appeals from judgment
entered after the trial court resentenced her for convictions after
a jury found her to be guilty of larceny after breaking and
entering pursuant to N.C. Gen. Stat. § 14-72(B)(2) and breaking or
entering pursuant to N.C. Gen. Stat. § 14-54(B). We find no error.
This is defendant's second appeal to this Court. See State v.
Perkins, ___ N.C. App. ___, 638 S.E.2d 591 (2007).
In 2005, defendant was tried on charges of obtaining property
by false pretenses, felonious breaking or entering, felonious
larceny, and having the status of being an habitual felon. A jury
returned verdicts finding defendant to be guilty of misdemeanorbreaking or entering, felony larceny, and obtaining property by
false pretenses. After reviewing the verdicts, the trial court
stated the verdicts for misdemeanor breaking or entering and felony
larceny were legally inconsistent and directed the jury to resume
deliberations on the charges of misdemeanor breaking or entering
and felony larceny. Id. at ___, 638 S.E.2d at 595.
The jury returned a new verdict finding defendant to be guilty
of felony breaking or entering and felony larceny. The jury also
found defendant had attained habitual felon status. The trial
court sentenced defendant to 110 to 141 months imprisonment for
felony breaking or entering, felony larceny, and habitual felon
status. The trial court also sentenced defendant to a consecutive
term of 110 to 141 months imprisonment for obtaining property by
false pretenses and habitual felon status.
Upon appeal, this Court held the initial verdict[s] of
misdemeanor breaking or entering and felony larceny were not
necessarily legally inconsistent[.] Id. at ___, 638 S.E.2d at
594. This Court vacate[d] defendant's conviction of felony
breaking or entering, and remand[ed] for entry of judgment upon the
original verdict of misdemeanor breaking or entering and for
resentencing. Id. at ___, 638 S.E.2d at 599.
The trial court conducted defendant's resentencing hearing on
25 January 2007. The trial court entered judgment against
defendant for felony larceny and misdemeanor breaking or entering,
and resentenced defendant within the presumptive range of a Class
C felony for an active prison term of a minium of ninety-threemonths to a maximum of 121 months. The trial court ordered the
sentence imposed upon resentencing to run consecutive to
defendant's existing sentence of 110 to 141 months imprisonment for
the convictions of obtaining property by false pretenses and
attaining habitual felon status . Defendant appeals.
Defendant argues the trial court erred in resentencing her
more severely than the prior sentence in violation of N.C. Gen.
State. § 15A-1335.
In defendant's sole assignment of error, she contends the
sentence imposed upon resentencing violated N.C. Gen. Stat. § 15A-
1335. We disagree.
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.
Although defendant concedes in her brief that she was not
sentenced more severely on remand, she asserts her sentence imposed
upon resentencing was more severe than the prior sentence, less
the portion of the prior sentence previously served.
Defendant also acknowledges adverse authority to her argument
from this Court in State v. Dorton, ___ N.C. App. ___, 641 S.E.2d
357 (2007). In Dorton, this Court stated [the] [d]efendant was
originally sentenced to 92 to 120 months imprisonment. Onresentencing, defendant was ultimately resentenced for the same
conviction to 91 to 119 months imprisonment with credit given for
the time defendant had already served. Defendant was not,
therefore, sentenced more severely at resentencing. ___ N.C. App.
___, 641 S.E.2d 357, 362-63.
Here, defendant was originally sentenced to 110 to 141 months
for felony larceny and breaking and/or entering while being an
habitual felon. Habitual felon status is a Class C felony. N.C.
Gen. Stat. § 14-7.6 (2005). Upon remand, the trial court was
limited by the statutory sentencing guidelines set out in N.C. Gen.
Stat. § 15A-1340.17(c) and was required by the Structured
Sentencing Act to enter judgment on a sentence for the most serious
offense in a consolidated judgment. State v. Tucker, 357 N.C. 633,
637, 588 S.E.2d 853, 855 (2003).
The trial court was required to sentence defendant as a Class
C felon at her prior record level and had no discretion to impose
a lesser sentence. Id.; N.C. Gen. Stat. § 15A-1340.15(b). The
trial court resentenced defendant to ninety-three to 121 months
imprisonment, which is at the lowest end of the presumptive range
in The Structured Sentencing Act for a Class C felony at
defendant's prior record level. N.C. Gen. Stat. § 15A-1340.17(c).
The trial court also gave defendant credit for the time she had
served. Like the defendant in Dorton, defendant here was not
sentenced more severely on remand.
Nevertheless, defendant asserts the trial court was required
to sentence her to a minimum of fifty-five to a maximum of seventyand one-half months, half of the original sentence imposed and
relies on State v. Hemby, 333 N.C. 331, 426 S.E.2d 77 (1993).
Defendant's reliance is misplaced. In Hemby, our Supreme Court
applied The Fair Sentencing Act and held that the defendant's
eight-year sentence was more severe than the prior eight-year
sentence because the number of convictions for which the defendant
was resentenced had been reduced. 333 N.C. at 336-37, 426 S.E.2d
Here, only the class and not the quantity of the convictions
changed. The number of defendant's convictions was not reduced and
the trial court was required to sentence her as a Class C habitual
felon for the most serious offense in a consolidated judgment.
This assignment of error is overruled.
The trial court properly resentenced defendant on remand. We
find no error in the trial court's judgment.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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