State v Atkins
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-199 NORTH CAROLINA COURT OF APPEALS Filed: 5 September 2006 STATE OF NORTH CAROLINA v. Lee County Nos. 04 CRS54260, 54262, 54364, 54365, 54369, 54466, 54553, 54738 WILLIAM BRIAN ATKINS Appeal by defendant from judgments entered 26 July 2005 by Judge Franklin F. Lanier in Lee County Superior Court. Heard in the Court of Appeals 21 August 2006. Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State. Duncan B. McCormick for defendant-appellant. CALABRIA, Judge. William Brian Atkins ( defendant ) appeals from a judgment entered pursuant to a plea agreement in which he pled guilty to three counts larceny of a motor vehicle, financial card theft, attempted felonious breaking and entering, possession of a stolen vehicle, breaking and entering and larceny, and felonious breaking and entering. We remand for resentencing. On 25 January 2005, defendant pled guilty pursuant to a plea agreement to multiple class H and I felonies, including a single -2count of financial card theft. that defendant could The trial continued sentencing so complete Greensboro, North Carolina. the Teen Challenge program in Defendant failed to complete the program. On 26 July 2005, the trial court entered judgment against defendant and imposed eight consecutive terms of imprisonment. Counsel for defendant stipulated defendant had 17 prior record points and a corresponding sentencing purposes. prior record level V for felony On the single count of financial card theft, the trial court sentenced defendant to a term of fifteen to eighteen months imprisonment in the North Carolina Department of Correction as a Class H, Level V felon. Defendant appeals. Defendant argues the trial court erred by sentencing him as a Class H felon. Defendant contends that financial card theft is a Class I felony. We agree and note the State concedes error. N.C. Gen. Stat. § 14-113.9(b) (2005) states (c)redit card theft is punishable 14-113.17(b). as provided by [N.C. Gen. Stat. §] N.C. Gen. Stat. § 14-113.17 (2005) states [a] crime punishable under this Article is punishable as a Class I felony. In the instant case however, though the judgment correctly described financial card theft as a Class I felony, the trial court sentenced defendant as a Class H felon. Accordingly, we remand for resentencing on the single count of financial card theft. We note defendant waived review of his assignments of error by not presenting an argument. App. P. 28(b)(6) (2005). Remanded for resentencing. remaining See N.C. R. -3Chief Judge MARTIN and Judge JACKSON concur. Report per Rule 30(e).
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