State v. Davis

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1201 NORTH CAROLINA COURT OF APPEALS Filed: 1 July 2014 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 12 CRS 27326, 211387 CHRISTOPHER JEROME DAVIS Appeal by Defendant from judgment entered 30 April 2013 by Judge Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 June 2014. Attorney General Roy Cooper, by Assistant Attorney General Carole Biggers, for the State. Guy J. Loranger for Defendant. STEPHENS, Judge. Defendant appeals from the judgment entered upon his convictions for felony possession of cocaine and having attained habitual felon status. Defendant contends the trial court erred in calculating his prior record level. We agree. we the reverse the judgment sentencing hearing. and remand matter Accordingly, for a new -2On 30 April 2013, a jury found Defendant guilty of both charges. At sentencing, Defendant stipulated to the contents of the State s prior record level worksheet, and the trial court found Defendant had fourteen prior record resulting in a prior record level of V. level points, Thirteen points were assigned for the prior offenses listed on the worksheet, and one point was added because the elements of the current possession offense were included in a prior offense. Defendant to imprisonment, a presumptive-range based on his term habitual The court sentenced of 40 felon to 60 status months and prior record level. Defendant s sole argument on appeal is that the trial court erred by relying upon the three felonies used to establish his habitual felon status to support its prior record level finding. The State concedes the trial court erred, and we agree. For ascertain purposes the of type sentencing, and number a of trial the court must defendant s (1) prior convictions, (2) calculate the sum of the points assigned for each conviction, and (3) based upon the defendant s points, determine the defendant s prior record level. Powell, __ N.C. App. (citation omitted). __, __, 732 S.E.2d 491, total State v. 493 (2012) The State bears the burden of proving a -3defendant s evidence. prior convictions by a preponderance N.C. Gen. Stat. § 15A-1340.14(f) (2013). of the Convictions used to establish a defendant s habitual felon status may not also be used in the calculation of his prior record level. State v. Miller, 168 N.C. App. 572, 575, 608 S.E.2d 565, 567 (2005); N.C. Gen. Stat. § 14-7.6 (2013). In this case, Defendant stipulated to the accuracy of the State s prior record level worksheet, and the trial court relied upon that stipulation to support its calculation of Defendant s prior record level. As Defendant correctly observes, however, three of the offenses listed on his prior record level worksheet were also used to convictions for cocaine cases in establish possession 96 CRS with 53790 his habitual intent and 01 to felon sell CRS or status: deliver 163533, and a conviction for possession of cocaine in case 93 CRS 12327.1 The remaining felonies listed on the prior record level worksheet are insufficient to support the court s prior record level calculation. 1 The worksheet lists two class G felonies, We note that the prior record level worksheet lists the date of conviction for felony possession of cocaine in case 93 CRS 12327 as 30 October 1995, but the judgment in that case and the habitual felon indictment in the instant case each list the conviction date as 22 April 1993. A copy of the judgment was introduced into evidence during the habitual felon phase of the trial in this case. -4each worth four prior record level points; one class H felony, worth two points; and one class 1 misdemeanor, worth one point. See N.C. Gen. Stat. § 15A-1340.14(a)(3)-(5). contains a finding that all of the The worksheet also elements of the present possession offense were included in a prior offense, which is worth one point. N.C. Gen. Stat. § 15A-1340.14(a)(6). Thus, the worksheet to which Defendant stipulated supported a finding of a total of twelve prior record level points for habitual felon sentencing purposes, which in turn is sufficient support only a prior record level of IV rather than V. to See N.C. Gen. Stat. § 15A-1340.14(c). Under his proper prior record level as an habitual felon, Defendant s permissible range of minimum terms was 30 to 38 months, two months shorter than the 40-month minimum the trial court imposed. Accordingly, we N.C. Gen. reverse Stat. the § 15A-1340.17(c) judgment and resentencing. REVERSED and REMANDED. Judges HUNTER, ROBERT C., and ERVIN concur. Report per Rule 30(e). (2013). remand for

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