The opinion of the court was delivered by: John, Judge.
Appeal by defendant from judgment entered 30 August 1996 by Judge James L. Baker, Jr. in Yancey County Superior Court. Heard in the Court of Appeals 10 September 1997.
Defendant appeals judgment entered 30 August 1996 upon his 2 July 1996 guilty plea to the charge of second-degree murder. Defendant contends the trial court erred (1) in its determination of his prior record level and in sentencing him at that level, (2) by admitting into evidence a victim impact statement, and (3) by dismissing his motion for appropriate relief without first conducting a hearing thereon. We hold the trial court did not err.
Pertinent facts and procedural history include the following: At approximately 9:00 a.m. on 14 August 1995, the body of defendant's sister, Willie Mae Rice Doan (Doan), was discovered on United States Forest Service property beside Forest Service Road 472 (the road). A warrant was issued for defendant's arrest 21 August 1995, and on 2 February 1996 he surrendered to law enforcement officers. On 2 July 1996, defendant pleaded guilty to the charge of second-degree murder, and a sentencing hearing (the hearing) was held during the 26 August 1996 criminal session of Yancey County Superior Court.
Following the presentation of evidence at the hearing, the trial court determined defendant had accumulated 15 prior record points as follows: (1) six points for one prior conviction of second-degree rape, a Class C felony, (2) four points for a prior conviction of common law robbery, (3) one point in consequence of the current offense having been committed while defendant was on post-release supervision, and (4) four points based upon a prior plea of guilty to a 17 February 1972 kidnapping. Regarding the latter, the trial court, after examining the applicable court file, including the indictment, the transcript of plea, as well as the judgment and commitment, concluded that all the elements of first- degree kidnapping were not present and assigned the point total appropriate for a conviction of second-degree kidnapping.
The court thereupon determined defendant fell within prior record level V and elected to sentence him within the presumptive range, obviating the necessity of finding factors in aggravation or mitigation. Judgment was entered 30 August 1996, and defendant was ordered imprisoned for a minimum term of 243 months and a maximum term of 301 months. He entered written notice of appeal that same day.
On 25 September 1996, defendant filed a motion for appropriate relief, contending the trial court's judgment must be vacated on grounds that jurisdiction lay exclusively in the federal court. The court summarily dismissed defendant's motion 7 October 1996, and he filed notice of appeal 9 October 1996.
Defendant first maintains the trial court erred in calculating his prior record level (PRL) alternatively either (a) by assigning any points to the 1972 kidnapping guilty plea, because common law kidnapping "is no longer a crime in the State of North Carolina," having been superceded by a statutorily defined offense at the time of Doan's murder, or (b) by considering the prior offense a felony, rather than a misdemeanor, for sentencing purposes. We reject both arguments.
The record on appeal includes defendant's stipulation that he pleaded guilty on 17 February 1972 to the charge of kidnapping and was sentenced pursuant to the pre-1975 version of N.C.G.S. § 14-39 (1933)(former G.S. § 14-39). Effective 1 July 1975, G.S. § 14-39 was revised (revised G.S. § 14-39) whereby it "statutorily define[d] kidnapping and supersede[d] the common law definition." State v. Holmon, 36 N.C. App. 569, 572, 244 S.E.2d 491, 493 (1978). Thus, defendant is correct that the common law definition of kidnapping was replaced by the statutory definition contained in revised G.S. § 14-39. See id. It does not necessarily follow, however, that a common law kidnapping conviction should be disregarded when computing a defendant's PRL pursuant to the Structured Sentencing Act (the Act).
The Act, under which defendant was sentenced for Doan's murder, mandates that the trial court ascertain a defendant's PRL before imposing sentence. N.C.G.S. § 15A-1340.13(b) (1997). This is accomplished by assigning a certain number of points, as dictated by N.C.G.S. § 15A-1340.14(b)(1997), to each prior conviction, and thereafter "comparing the point total calculated to the range of point totals corresponding to each prior record level as listed in G.S. 15A- 1340.14(c)." State v. Bethea, 122 N.C. App. 623, 626, 471 S.E.2d 430, 432 (1996). The statute further provides that:
[i]n determining the prior record level, the classification of a prior offense is the classification assigned to that offense at the time the offense for which the offender is being sentenced is committed.
We begin by rejecting defendant's initial contention that the trial court erroneously assigned prior record points to his 1972 conviction for the crime of kidnapping, and hold that conviction constitutes a prior conviction for purposes of sentencing under the Act. See N.C.G.S. § 15A-1340.11(7)(1997)("[a] person has a prior conviction when . . . [he] has been previously convicted of a crime . . . .").
According to the language of G.S. § 15A-1340.14(c), it is the prior "offense" which is subject to classification, albeit to the classification currently assigned to that offense. Defendant's argument seeks to impose provisions and requirements which are not contained in the section. Specifically, nothing in the language of the section indicates it would be ineffective in the event of a change in the elements of an offense. Rather, the section states that the classification assigned to an offense is that denominated "at the time the offense for which the offender is being sentenced [was] committed." G.S. § 15A-1340.14(c).
Defendant was convicted in 1972 of the offense of kidnapping and received a life sentence. Upon thorough review of the record, we determine the trial court properly classified that offense according to its designation as second-degree kidnapping at the time of the instant offense, i.e., the murder of Doan. See id.
Moreover, assuming arguendo there is merit to defendant's assertion that G.S. § 15A-1340.14 is ambiguous, ...