in the Court of Appeals 7 August 2019.
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.
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.
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. 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 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. . . .
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.
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. ...