Opinion
No. COA09-1206
Filed 15 June 2010 This case not for publication
Appeal by defendant from judgment entered 13 January 2009 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General LeAnn Martin, for the State. Jarvis John Edgerton, IV, for defendant-appellant.
Wake County Nos. 08 CRS 68821, 69166.
A jury convicted defendant Hassan Hamm of possession with intent to sell and deliver cocaine, sale of cocaine, and delivery of cocaine. Defendant subsequently admitted his habitual felon status. Pursuant to a plea arrangement, the State agreed that "the charges be consolidated for one judgment and that the defendant receive a sentence at the bottom of the presumptive range (107 to 138 months) in North Carolina Department of Corrections as a Class C, level IV felon." The trial court consolidated the convictions into one judgment and sentenced defendant to 107 to 138 months imprisonment. Defendant appeals.
The evidence presented at trial tended to show the following: On 18 September 2008, Detective Eric Gibney of the Raleigh Police Department, with the aid of informant Terry Ross, was conducting street-level "buy-busts" at the 500 block of Haywood Street. Ross walked up to defendant and asked if he had a "twenty rock." Defendant responded that he had "two dime rocks." Ross handed defendant a marked twenty-dollar bill, and defendant handed the crack cocaine to Ross, who then walked away. As police approached defendant, defendant dropped the marked twenty-dollar bill on the ground. Detective Gibney subsequently retrieved the crack cocaine from Ross and confiscated the marked twenty dollar bill.
In his sole argument on appeal, defendant contends that the trial court erred by sentencing him for both sale and delivery of cocaine arising out of a single transfer. He contends our Supreme Court's holding in State v. Moore, 327 N.C. 378, 395 S.E.2d 124 (1990), supports his argument and submits that this case should be remanded for resentencing.
A defendant may not "be convicted under N.C.G.S. § 90-95(a)(1) of both the sale and the delivery of a controlled substance arising from a single transfer." Id. at 382, 395 S.E.2d at 127 (emphasis in original). In Moore, the Court directed that judgments "should be amended to reflect that the defendant was convicted on each indictment of a single count for the `sale or delivery of a controlled substance.'" Id. at 383, 395 S.E.2d at 128. The Court further stated that where multiple convictions were consolidated into a single judgment, the appellate courts "are unable to determine what weight, if any, the trial court gave each of the separate convictions for sale and for delivery in calculating the sentences imposed upon the defendant." Id. at 383, 395 S.E.2d at 127-128. Thus, remand for resentencing is required. Id.
The State concedes that the trial court erred by sentencing defendant for both sale and delivery arising out of a single transfer. However, the State argues that remand for resentencing is not required here as it was in Moore. Rather, the State asserts that the judgment in the present case may be corrected by arresting judgment in the delivery of cocaine conviction. The State reasons that defendant agreed to a specific sentence for his habitual felon status and received the lowest possible sentence in the presumptive range; therefore, defendant cannot show prejudicial error.
However, this Court has consistently remanded for resentencing, despite various attempts by the State to distinguish Moore. See, e.g., State v. Rogers, 186 N.C. App. 676, 678, 652 S.E.2d 276, 277 (2007) ("[U]ntil our Supreme Court overrules or creates an exception to the requirements of resentencing it imposed in Moore, we are bound to follow that course. . . ."). In accordance with Moore, we remand for resentencing.
Remanded for resentencing.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).