Heard in the Court of Appeals August 13, 2014
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Attorney General Roy Cooper, by Assistant Attorney General Mr. John R. Green, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah HallMs., for Defendant.
STEPHENS, Judge. Judges CALABRIA and ELMORE concur.
Appeal by Defendant from judgment entered 26 April 2013 by
Judge Carl R. Fox in Wake County. Nos. 12 CRS 5861, 11750, 213646 Superior
On 18 June 2012, Defendant Antwon Terrell Rogers was under surveillance by a team from the " career criminal unit" of the Raleigh Police Department (" RPD" ), which was seeking to serve Defendant with an outstanding warrant and a grand jury indictment for having attained the status of an habitual felon. The surveillance team did not know where Defendant lived, but saw Defendant drive up to and then enter a house at 312 North King Charles Drive in Raleigh. A woman, later identified as Defendant's girlfriend, Felisha Sandifer, was a passenger in the car and entered the house with Defendant.
About ten officers with the career criminal unit surrounded the house, and several officers knocked on the door. A woman answered the door and stated that she lived in the home. When the officers told her they were looking for Defendant, the woman called Defendant to come outside. The officers handcuffed and arrested Defendant without incident.
After receiving consent from the homeowner, officers conducted a search which revealed a purse on the kitchen table. The purse contained mail addressed to Sandifer, marijuana, and a clip loaded with twelve .40 caliber bullets. When confronted by the officers, Sandifer initially claimed the marijuana and clip both belonged to her, but then admitted that the clip belonged to Defendant. At trial, Sandifer testified that Defendant put the clip in her purse when the police arrived at the house. Sandifer gave the officers permission to search her car, and a handgun was discovered under the passenger seat. The gun, which bore a stamp reading " Detroit Police Department," matched the clip found in Sandifer's purse. Sandifer denied having a gun and stated that it must have belonged to Defendant. Officers later determined that the gun was stolen. While Defendant was being held in jail after his arrest, he made several phone calls to Sandifer and asked her to take responsibility for the gun.
On 23 July 2012, Defendant was indicted on charges of possession of a firearm by a felon and possession of a stolen firearm. On 11 December 2012, Defendant was indicted for having attained the status of an habitual felon. At the 22 April 2013 session of superior court in Wake County, a jury found Defendant not guilty of possession of a stolen firearm, but guilty of possession of a firearm by a convicted felon. In a separate proceeding, the jury found that Defendant was an habitual felon. The trial court imposed an active sentence of 93-124 months in prison, from which Defendant gave notice of appeal in open court.
On 28 March 2014, Defendant filed a motion for appropriate relief (" MAR" ) in this Court contemporaneously with his appellate brief. The MAR was referred to this panel by order entered 8 April 2014. In his MAR, Defendant contends that his prior record level for sentencing was improperly calculated. ...