Heard in the Court of Appeals 3 February 2014.
Appeal by defendant from judgment entered 20 March
2013 by Judge W. Allen Cobb, Jr. in Onslow County Superior Court.
Attorney General Roy Cooper, by Assistant Attorney General Ann W. Matthews, for the State.
James W. Carter, for defendant.
On 20 March 2013, a jury found Matthew Pelham Fleig (defendant) guilty of multiple drug offenses. The subject of this appeal concerns judgment entered on those offenses in 11 CRS 055170 that stemmed from 10 August 2010: 1.) felony sale of marijuana; 2.) felony delivery of marijuana; and 3.) misdemeanor possession of marijuana. Judge W. Allen Cobb, Jr. consolidated these convictions and imposed a term of imprisonment for six-months minimum, eight-months maximum. That sentence was suspended, and defendant was placed on probation for thirty months and required to served a thirty-day active sentence. Defendant now appeals and contends that the trial court erred by sentencing him for both sale and delivery of marijuana. After careful consideration, we remand for a new sentencing hearing with instructions to vacate either the 1.) sale of marijuana conviction or 2.) delivery of marijuana conviction.
On 5 August 2010, the Jacksonville Police Department conducted a traffic stop of Sarah Lyon's vehicle, and it was discovered that the passenger in her car possessed marijuana, a marijuana grinder, and digital scales. After further investigation, Lyon was never charged with any criminal offenses. Thereafter, she was asked by the Jacksonville Police Department if she knew any individuals who were involved in the sale of narcotics in the local area. She provided the police with defendant's name and agreed to assist them in conducting a controlled buy of marijuana from defendant. On 10 August 2010, officers recorded a phone conversation between Lyon and defendant in which she asked to purchase marijuana from him. Defendant agreed, and the police department gave Lyon a twenty-dollar bill to buy the marijuana. Equipped with a recording device, Lyon drove to defendant's house, picked him up, and they drove to another location in the neighborhood to conduct the drug deal. Lyon provided defendant with twenty dollars, and he gave her a " dime bag" of marijuana (bag) in return. Knowing that one bag was not a sufficient amount of marijuana for
the price of twenty dollars, Lyon immediately requested an additional bag. Defendant did not have any additional marijuana on his person because he thought Lyon only wanted one bag, but he agreed to give Lyon the additional quantity she requested. They drove back to his house to retrieve more marijuana, defendant obtained another bag, and he gave it to Lyon. Lyon did not pay defendant, nor did defendant request, additional money for the second bag. After Lyon received the second bag, she left defendant's house and relinquished the recording device and marijuana to the Jacksonville Police Department.
a.) Writ of Certiorari
Defendant seeks appellate review by petition for writ of certiorari because of his trial counsel's failure to give proper notice of appeal pursuant to North Carolina Appellate Procedure Rule 4. For the reasons that follow, we allow defendant's writ of certiorari.
Rule 4 mandates that appeal from a judgment rendered in a criminal case must be given either orally at trial or by " filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment[.]" N.C.R.App. P. 4. Should a defendant fail to timely appeal, a writ of certiorari " may be issued in appropriate circumstances by either appellate court to permit review of the judgments[.]" N.C.R.App. P. 21. This Court has held that an appropriate circumstance to issue writ of certiorari occurs when " a defendant's right to appeal has been lost because of a failure of his ...