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State v. Smith

Court of Appeals of North Carolina

September 3, 2019

STATE OF NORTH CAROLINA
v.
MARIO SMITH, Defendant.

          Heard in the Court of Appeals 7 August 2019.

          Appeal by Defendant from judgment entered 27 June 2018 by Judge Tanya Wallace in Anson County Superior Court.No. 17CRS051196

          Attorney General Joshua H. Stein, by Assistant Attorney General Orlando L. Rodriguez, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for the Defendant.

          BROOK, JUDGE.

         I. Background

         On 4 August 2017, two corrections officers transported a prisoner to a new housing unit within the Lanesboro Correctional facility in Anson County, North Carolina. When they entered the new unit, two prisoners rushed forward and attacked the prisoner being transferred. Mario Smith ("Defendant") was identified as one of these attackers. The prisoner being transferred had four stab wounds on his back, one of which caused a hemopneumothorax. A shank was retrieved from Defendant's possession.

         On 11 September 2017, Defendant was indicted with one count of Assault with a Deadly Weapon Inflicting Serious Injury ("ADWISI") and one count of Assault by a Prisoner with a Deadly Weapon Inflicting Bodily Injury.[1] The jury returned guilty verdicts for both charges following the 26 June 2018 trial. Immediately following the verdicts and outside the presence of the jury, a sentencing hearing was held. During the hearing, the following exchange between counsel for the Defendant and the State as well as the trial judge occurred:

MR. McCRARY: [H]e'd just ask the Court to be as kind to him as you can on this. I know the State had mentioned the possibility of boxcarring[2] these. My concern being that while I understand the Court's point that it's possible to do so because there's that different element, the logic of why you can't boxcar, say, alphabet assault with assault with a deadly weapon still applies. It may not legally-but it still applies. I mean, this is one instance that happened just one time. And the State pursued basically two legal theories against my client. I don't know that that necessarily makes things substantively different. . . .
THE COURT: Mr. McCrary, what's your position?
MR. McCRARY: The State would ask that, Your Honor. But given our conversation at the bench - I mean, the State wasn't really expecting it.
THE COURT: Well, that didn't have anything to do with boxcarring. . . .

         The trial court determined Defendant to be a prior record level II. The court sentenced Defendant to the presumptive range of 29 to 47 months for ADWISI and the presumptive range of 15 to 27 months for Assault by a Prisoner with a Deadly Weapon Inflicting Serious Bodily Injury. The sentences were ordered to run consecutively.

         The trial concluded at 12:30 p.m. on 27 June 2018, but the Court was called back later that afternoon and Defendant's trial counsel gave an oral notice of appeal at 3:25 p.m. Due to the time gap between the conclusion of trial and the oral notice of appeal, Defendant has filed a petition for writ of certiorari. We grant Defendant's petition and the writ shall issue for the reasons that follow. ...


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