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State v. Jarman

Court of Appeals of North Carolina

December 16, 2014

STATE OF NORTH CAROLINA
v.
FREDERICK DARNELL JARMAN, Defendant

Heard in the Court of Appeals: November 17, 2014.

Appeal by Defendant from judgment entered 4 November 2013 by Judge John E. Nobles, Jr. in Superior Court, Craven County. No. 97 CRS 4489.

Attorney General Roy Cooper, by Assistant Attorney General Erin O. Scott, for the State.

North Carolina Prisoner Legal Services, by Mary E. McNeill, for Defendant--Appellant.

McGEE, Chief Judge. Judges HUNTER, Robert C. and BELL concur.

OPINION

Page 371

McGEE, Chief Judge.

Frederick Darnell Jarman (" Defendant" ) appeals from a judgment entered pursuant to a resentencing hearing that corrected his prior record level determination from a level IV to a level III offender, and sentenced him to a term of 93 months to 121 months' imprisonment, to begin at the expiration of two consecutive sentences imposed for prior convictions. We affirm.

Defendant was found guilty by a jury of possession with intent to sell and deliver cocaine and entered a plea of no contest to having attained the status of an habitual felon on 15 April 1998. See State v. Jarman ( Jarman II ), 132 N.C.App. 398, 518 S.E.2d 579 (1999) (unpublished), cert. denied, 351 N.C. 644, 543 S.E.2d 879 (2000). After finding that the factors in aggravation outweighed the factors in mitigation, and based on the trial court's determination that Defendant was a prior record level IV offender, he was sentenced to a term of 133 to 169 months' imprisonment. See id. The trial court further ordered that Defendant's sentence begin at the expiration of two consecutive terms of 125 to 159 months' imprisonment that Defendant was then obligated to serve from December 1997 convictions for forgery, uttering a forged check, and being an habitual felon. See State v. Jarman ( Jarman I ), 131 N.C.App. 702, 515 S.E.2d 758 (1998) (unpublished).

Defendant is said to have filed a motion for appropriate relief requesting a resentencing hearing to correct his prior record level determination from a designation as a level IV offender to a designation as a level III offender, and to reconsider his sentence for his 15 April 1998 convictions in light of the correction to his prior record level determination. Defendant's resentencing hearing (" the hearing" ) was held on 4 November 2013.

At the hearing, the State conceded an error in calculating Defendant's prior record level, and submitted to the trial court a corrected worksheet with Defendant's level III offender designation, along with the sentencing grid that was in effect at the time the offenses were committed. Defense counsel then asked the court to make findings as to mitigating factors because counsel opined, among other things, that: Defendant " only ha[d] 13 infractions since he'[d] been in prison; " Defendant's mother was present at the hearing; Defendant had a " handicapped brother at home; " and Defendant had a job as a janitor and had taken classes in prison. Counsel did not seek to present any testimonial or documentary evidence for the court to consider in support of counsel's declarations, and the trial court did not make any findings as to aggravating or mitigating factors. Defense counsel then requested that the trial court allow Defendant's sentence for the 15 April 1998 convictions to run consecutively with the first of Defendant's two consecutive terms of 125 to 159 months' imprisonment for his December 1997 convictions, so that Defendant's sentence for the present case would run concurrently with the second term of imprisonment for his 1997 convictions. The trial court declined counsel's request, and sentenced Defendant at the bottom of the presumptive range to a term of 93 to 121 months' imprisonment for his 1998 convictions, to begin at the expiration of the two consecutive terms of imprisonment Defendant was serving for his 1997 convictions. Defendant appeals.

Defendant first contends the trial court erred when it ordered that Defendant serve the sentence imposed for his 1998 habitual felon conviction upon the expiration of both

Page 372

terms of imprisonment for his 1997 convictions, rather than concurrently with the second term of imprisonment arising from his 1997 convictions. Defendant asserts the trial court " misapprehend[ed]" the law " when it determined that it did not have the discretion to decide" to run Defendant's 1998 sentence concurrently with the second ...


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