Opinion
No. COA15-1169
06-21-2016
STATE OF NORTH CAROLINA v. ROBERT EARL MURPHY
Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for the State. Peter Wood for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Nash County, No. 12 CRS 50961 Appeal by defendant from judgments entered 4 June 2015 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 1 June 2016. Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for the State. Peter Wood for defendant-appellant. ZACHARY, Judge.
Robert Earl Murphy ("defendant") appeals from judgments entered upon his resentencing. We affirm.
On 6 August 2013, a jury found defendant guilty of possession with intent to sell or deliver cocaine, delivery of cocaine, and possession of cocaine. The trial court determined defendant to be a prior record level IV for sentencing with twelve prior record level points. The court arrested judgment on his possession of cocaine conviction, finding it to be a lesser included offense of possession with intent to sell or deliver cocaine, and sentenced defendant to a term of 8 to 19 months' imprisonment for possession with intent to sell or deliver cocaine, and to a consecutive term of 19 to 32 months' imprisonment for delivery of cocaine. Defendant appealed.
The North Carolina Department of Public Safety sent a letter on 8 October 2013 informing the trial court of potential issues with defendant's sentence. On 5 December 2013, while defendant's appeal was pending before this Court, the trial court resentenced defendant to two consecutive sentences of 11 to 23 months' imprisonment.
By opinion filed 17 March 2015, this Court vacated the judgments and remanded the case for resentencing. This Court held that the trial court misclassified delivery of cocaine as a Class G rather than a Class H felony, erroneously sentenced defendant to a mitigated sentence for possession with intent to sell or deliver cocaine without making findings in mitigation, and lacked jurisdiction to resentence defendant while his appeal was pending before this Court. State v. Murphy, ___ N.C. App. ___, 772 S.E.2d 13, 2015 N.C. App. Lexis 189 *9 (2015) (unpublished).
On 4 June 2015, the trial court held a new sentencing hearing and resentenced defendant to two consecutive terms of 11 to 23 months' imprisonment. At the time of the sentencing hearing, defendant had served both active sentences and was on post-release supervision. Defendant appealed the new sentences.
Counsel appointed to represent defendant on appeal has filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), indicating that he "is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal." He asks this Court to conduct its own review of the record for possible prejudicial error. Counsel has filed documentation with the Court showing that he has complied with the requirements of Anders and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising defendant of his right to file written arguments with the Court and providing him with a copy of the documents pertinent to his appeal.
Defendant has not filed any written documents on his own behalf with this Court, and a reasonable time for him to do so has expired. In accordance with Anders, we have fully examined the record to determine whether any issues of arguable merit appear therefrom. We have been unable to find any possible prejudicial error and conclude that the appeal is wholly frivolous.
AFFIRMED.
Chief Judge McGEE and Judge McCULLOUGH concur.
Report per Rule 30(e).