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State v. Fennell

Court of Appeals of North Carolina

May 19, 2015

STATE OF NORTH CAROLINA
v.
DANIEL LEE FENNELL, Defendant

Heard in the Court of Appeals 4 December 2014.

Editorial Note:

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 Kimberly N. Callahan, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant.

GEER, Judge. Judges STEELMAN and STEPHENS concur.

OPINION

Appeal by defendant from judgment entered 17 April 2014 by Judge Jay D. Hockenbury in Pender County Superior Court, Nos. 08 CRS 3155, 08 CRS 52362.

GEER, Judge.

Defendant Daniel Lee Fennell appeals from a judgment entered after his fourth sentencing hearing on his convictions for sale of a schedule II controlled substance, possession of a schedule II controlled substance, and being a habitual felon. Defendant's sole argument on appeal is that the trial court erred in calculating the amount of jail fees assessed against him by using the daily rate provided in the revised version of N.C. Gen. Stat. § 7A-313 (2013) -- a version that was inapplicable to defendant because it did not become effective until after defendant had completed his pretrial confinement. We agree and remand for recalculation of jail fees using the correct daily rate.

Facts

On 2 June 2011, defendant was found guilty by a jury of possession of a schedule II controlled substance, selling a schedule II controlled substance, and delivering a schedule II controlled substance. Defendant pled guilty to being a habitual felon and stipulated to having a prior record level of VI. The trial court entered a consolidated judgment and sentenced defendant to a presumptive-range term of 150 to 189 months imprisonment and ordered him to pay $720.00 in restitution. Defendant appealed to this Court. In an opinion filed 6 March 2012, this Court held that defendant received a trial free of prejudicial error and that the trial court did not err in ordering restitution. The Court, however, remanded for a new sentencing hearing due to an error in the trial court's prior record level determination. State v. Fennell, 219 N.C.App. 401, 722 S.E.2d 212, 2012 WL 698252, at *3 (2012) (unpublished).

At his new sentencing, defendant stipulated that he had a prior record level of V, and the trial court sentenced him to a presumptive-range term of 125 to 159 months imprisonment. The trial court also ordered defendant to pay $4,454.50 in costs, $2,606.25 in attorneys' fees, and $60.00 in miscellaneous fees, for a total of $7,120.75. However, the trial court did not order payment of any restitution.

Defendant again appealed to this Court, arguing that the trial court again erred in calculating his prior record level and by imposing a more severe monetary judgment than the original sentence. This court held that the trial court erroneously relied on a structured sentencing chart that was inapplicable to defendant, remanded for resentencing, and deemed defendant's remaining arguments concerning the monetary judgment moot. State v. Fennell, __ N.C.App. __, 739 S.E.2d 628, 2013 WL 1121500, at *1(2013) (unpublished).

Defendant's third sentencing hearing was held on 30 April 2013. Defendant stipulated to having a prior record level of IV. The trial court sentenced defendant to a presumptive-range term of 111 to 143 months imprisonment and again ordered defendant to pay $4,454.50 in costs, $2,606.25 in attorneys' fees, and $60.00 in miscellaneous fees, for a total of $7,120.75. However, the costs and fees were not imposed during the sentencing ...


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