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State v. Green

Court of Appeals of North Carolina

July 16, 2019

STATE OF NORTH CAROLINA
v.
JAMES BROWN GREEN, JR.

          Heard in the Court of Appeals 10 April 2019.

          Appeal 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.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         James 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:

         On 7 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[1] 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."

         Defendant 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.

         After 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 April 2018.

         Jurisdiction

         Defendant's 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").

         Issue

         The 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 misdemeanor.[2]

         Analysis

         I. Standard of Review

         "The 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. ...


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