in the Court of Appeals 10 April 2019.
by Defendant from Judgment entered 24 April 2018 by Judge
John E. Nobles, Jr. in Craven County Nos. 16 CRS 53678, 17
CRS 448, 17 CRS 449 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Brittany K. Brown, for the State.
Winifred H. Dillon, Attorney at Law, for defendant-appellant.
and Procedural Background
Brown Green, Jr. (Defendant) appeals from his convictions for
Possession of a Firearm by a Felon, Possession with Intent to
Sell/Deliver Cocaine (PWISD Cocaine), Possession of Drug
Paraphernalia, and having attained the status of a Habitual
Felon. Relevant to this appeal, the Record before us tends to
show the following:
August 2017, a Craven County Grand Jury returned true Bills
of Indictment charging Defendant with one count of PWISD
Cocaine, Possession of Drug Paraphernalia, Possession of a
Firearm by a Felon, and attaining Habitual-Felon status.
Pursuant to a plea agreement, Defendant entered an
Alford plea to all four charges on 24 April 2018. As
recorded on the Transcript of Plea, the parties' plea
agreement provided that Defendant's offenses would be
consolidated for judgment into one habitual-felon sentence
and that Defendant would receive an "active sentence of
87-117 months bottom mitigated."
stipulated to a Prior-Record-Level Worksheet (Worksheet)
presented by the State that listed Defendant's prior
convictions in North Carolina. The Worksheet disclosed a
total of 19 points, making Defendant a prior-record level VI
offender for sentencing purposes. Relevant to this appeal,
the Worksheet listed three prior convictions that Defendant
contends were erroneously classified: (1) 1994 Possession of
Drug Paraphernalia, classified as a Class 1 misdemeanor; (2)
1993 Maintaining a Vehicle/Dwelling for the use or storage of
controlled substances, classified as a Class I felony; and
(3) 1993 Carrying Concealed Weapon, classified as a Class 1
misdemeanor. The State also submitted, as exhibits, copies of
three prior judgments, which were used for the Habitual-Felon
Indictment. One of these judgments showed that the 1993
Maintaining-a-Vehicle/Dwelling conviction constituted a
violation of N.C. Gen. Stat. § 90-108. According to this
judgment, the conviction was classified as a misdemeanor but
did not include the specific class of misdemeanor.
conducting a plea colloquy with Defendant and after hearing
the Prosecution's summary of the factual basis for the
plea, the trial court accepted Defendant's
Alford plea. The trial court then sentenced
Defendant to the agreed-upon prison term of 87 to 117 months,
which was in the mitigated range based on Defendant's
class of offense and prior-record level as calculated on the
Worksheet. Defendant timely filed his Notice of Appeal on 30
appeal is properly before this Court pursuant to Section
15A-1444(a2)(1) of our General Statutes. See N.C.
Gen. Stat. § 15A-1444(a2)(1) (2017) (providing "[a]
defendant who has entered a plea of guilty . . . is entitled
to appeal as a matter of right the issue of whether the
sentence imposed . . . [r]esults from an incorrect finding of
the defendant's prior record level").
sole issue on appeal is whether the trial court erred in
calculating Defendant's prior-record level by (1)
including Defendant's 1994
Possession-of-Drug-Paraphernalia conviction in
Defendant's prior-record-level calculation; (2)
classifying Defendant's 1993
Maintaining-a-Vehicle/Dwelling conviction as a Class I
felony; and (3) counting Defendant's 1993
Carrying-Concealed-Weapon conviction as a Class 1
Standard of Review
determination of an offender's prior record level is a
conclusion of law that is subject to de novo review
on appeal." Bohler, 198 N.C.App. at 633, 681
S.E.2d at 804 (citation omitted). "Under a de
novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower
tribunal." State v. Williams, 362 N.C. ...