State v. Powell
State v. Powell
Opinion of the Court
On 7 January 2013, defendant was indicted for malicious conduct by a prisoner, a Class F felony, which was alleged to have been committed on 9 June 2012. Defendant pled guilty to the charge and stipulated to being a Prior Record Level IV offender. The prior record level stipulation is consistent with the entries on the prior record level worksheet included in the record, which indicates that defendant had a total of twelve prior record level points; two points for one prior Class H or I felony conviction, nine points for nine prior Class Al or 1 misdemeanor convictions, and one point because “all of the elements of the present offense [we]re included in any prior offense.”
The trial court initially sentenced defendant to a term of 25 to 39 months imprisonment based on defendant’s prior record level and his conviction for a Class F felony. However, when defendant returned to court to give his oral notice of appeal, the court purported to correct defendant’s sentence as follows:
THE COURT: Madam Clerk, the judgment is not correct, unless I’m looking at the wrong chart. I can’t give him 39 months. I can give him 25, which is at the high end of the presumptive for an F. He’s a Record Level IV. The maximum I can give him under the law that corresponds with 25 — -you actually have the printed chart....
[ADA]: Yes, sir, Judge.
THE COURT: The date of offense is on or after December 1st, 2011; is that correct? The date of offense is 6/9/12?
[ADA]: Yes, sir, Judge....
THE COURT: Just tell me if I’m accurate. Is the highest [maximum] 30?
[ADA]: For an F on the 25, 25 takes you out to 30, Judge.
THE COURT: Then the Court on its own motion will correct the judgment entered on 1/8/2013. . . .*131 After examining the judgment and commitment the Court realizes that the Court gave 39 months. The 39 months would correspond to 32 months. If the Court gave, 39 months, the Court was in error. So the Court, on its own motion, corrects the judgment to comport with the statute. Give the defendant 25 months minimum, 30 months maximum in the North Carolina Department of Corrections.
The court then amended its written judgment to reflect a sentence of 25 to 30 months imprisonment. Defendant appealed.
As a preliminary matter, we note that the State filed a motion to dismiss defendant’s appeal on the ground that the statute under which defendant purports to take his appeal — N.C.G.S. § 15A-1444(a2) — does not authorize an appeal of right to correct a court’s determination of a defendant’s prior record level points, when such a correction does not affect the court’s finding of that defendant’s prior record level, which comprises the entirety of defendant’s sole issue on appeal. See N.C. Gen. Stat. § 15A-1444(a2)(l) (2011) (“A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court 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 under G.S. 15A-1340.14 or the defendant’s prior conviction level under G.S. 15A-1340.21. . . .” (emphases added)). While we agree that defendant’s issue on appeal, standing alone, does not entitle defendant to an appeal as a matter of right within the express language of N.C.G.S. § 15A-1444(a2)(l), we have identified a sentencing error that appears on the face of the record that caused defendant to be sentenced to a term of imprisonment that is for a duration not authorized by the applicable version of N.C.G.S. § 15A-1340.17(d). Thus, because N.C.G.S. § 15A-1444(a2)(3) allows a defendant an appeal as a matter of right when his or her sentence “[c]ontains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23forthe defendant’s class of offense and prior record or conviction level,” N.C. Gen. Stat. § 15A-1444(a2)(3), we deny the State’s motion to dismiss.
“The criminal judgment entered against a person in either district or superior court shall be consistent with the provisions of Article 8 IB of [Chapter 15A of the North Carolina General Statutes] and contain a
In the present case, as evidenced by his guilty plea, defendant committed the offense of malicious conduct by a prisoner on 9 June 2012. Therefore, in order to determine defendant’s maximum sentence for this Class F felony committed on 9 June 2012, the trial court should have used the version of the sentencing grid codified in N.C.G.S. § 15A-1340.17(d) that became effective on 1 December 2011 and “applie[d] to offenses committed on or after that date” as a result of the amendments promulgated under the Justice Reinvestment Act of 2011. 2011 N.C. Sess. Laws 758, 762, 765, ch. 192, § 2(e), (j).
Here, the trial court first sentenced defendant to a minimum term of 25 months imprisonment and a maximum term of 39 months imprisonment, which sentence was in compliance with the post Justice Reinvestment Act amendments to N.C.G.S. § 15A-1340.17(d) for offenses committed on or after 1 December 2011. See id. Then, at a subsequent hearing, on its own motion, the court sought to “correct” this sentence by directing defendant to serve a maximum term of 30 months imprisonment for the same minimum presumptive-range term of 25 months, because, as the colloquy excerpted above indicates, the trial court was convinced that it was “looking at the wrong chart.” However, when the court “corrected” its sentence and changed defendant’s maximum term to 30 months imprisonment, the court actually sentenced defendant to the term that was correct for offenses committed before the amendments of the Justice Reinvestment Act of 2011 took effect. See N.C. Gen. Stat. § 15A-1340.17(d) (2009). Because the trial court’s sentence of amaximum term of 30 months imprisonment for a 25 month minimum term is viola-tive of the statutory mandate under the applicable sentencing guidelines of N.C.G.S. § 15A-1340.17(d) for a Class F felony committed on 9 June
Finally, defendant contends the trial court erred by determining that he had twelve prior record level points. While defendant concedes that the trial court correctly gave him two points for one prior Class H or I felony conviction and nine points for nine prior Class Al or 1 misdemeanor convictions, defendant asserts that the corut should have determined that he had only eleven prior record level points because defendant had no prior convictions for malicious conduct by a prisoner and had no prior convictions that had all of the elements of this offense, which was the basis for the additional prior record level point in the court’s calculation in accordance with N.C.G.S. § 15A-1340.14(b)(6).
One of the five essential elements of malicious conduct by a prisoner is that “the defendant threw, emitted, or caused to be used as a projectile a bodily fluid or excrement at the victim.” State v. Robertson, 161 N.C. App. 288, 292, 587 S.E.2d 902, 905 (2003). Because the record does not reflect that any of defendant’s prior convictions also included this element, the trial court erred by assessing an' additional prior record level point to defendant’s prior record level point total on this basis. However, since, as defendant concedes, subtracting this point from defendant’s prior record level point total of twelve does not alter the court’s determination that defendant is still a Prior Record Level IV offender, see N.C. Gen. Stat. § 15A-1340.14(c)(4) (2011) (providing that a Prior Record
Sentence vacated; remanded for entry of corrected sentence and for correction of clerical error on the judgment.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.