Opinion
No. COA10-915
Filed 15 February 2011 This case not for publication
Appeal by Defendant from judgments entered 12 May 2010 by Judge Gregory A. Weeks in Guilford County Superior Court. Heard in the Court of Appeals 7 February 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State. Richard Croutharmel for Defendant.
Guilford County Nos. 08 CRS 110848, 09 CRS 77977-78.
I. Procedural History and Factual Background
On 13 November 2009, Defendant pled guilty to one count of breaking and entering, one count of forgery, and one count of obtaining property by false pretenses. The plea agreement provided that Defendant would receive an intermediate punishment and the charges against him would be consolidated into two judgments for sentencing purposes. The trial court imposed two suspended sentences of 10 to 12 months imprisonment and placed Defendant on 36 months of probation. As a term of special probation, the trial court ordered Defendant to serve an active 90-day sentence in the custody of the Guilford County Sheriff, which amounted to time served, and Defendant was thus released from incarceration on 13 November 2009.
Defendant was subsequently charged with and convicted of robbery with a dangerous weapon and possession of a firearm by a felon in Alamance County and was given an active sentence of 75 to 102 months in prison. On 28 January 2010, Defendant's probation officer filed a probation violation report, alleging that Defendant (1) had failed to report to his supervising officer and (2) was found in possession of a firearm on 24 December 2009. On 12 May 2010, the trial court conducted a probation revocation hearing at which Defendant admitted his violations. The trial court revoked Defendant's probation and activated his suspended sentences. The trial court ordered that the two activated sentences run concurrently, but that they begin at the expiration of the sentence Defendant was already serving for his convictions in Alamance County. From the judgments entered, Defendant appeals.
II. Discussion
Counsel appointed to represent Defendant has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has shown to the satisfaction of this Court that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), 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 this Court and providing him with the documents necessary for him to do so.
Defendant has filed a pro se brief in which he (1) contends that his sentences activated as a result of his probation revocation should run concurrently with the active sentence which he is currently serving and (2) attacks the validity of the possession of a firearm by a felon charge for which he is serving an active sentence.
1. Consecutive Sentences
Pursuant to N.C. Gen. Stat. §§ 15A-1344 and-1354, a trial court may run a sentence activated upon a defendant's probation revocation consecutively to another sentence. State v. Hanner, 188 N.C. App. 137, 140-41, 654 S.E.2d 820, 822 (2008). Whether a trial court runs multiple sentences consecutively or concurrently is within the trial court's discretion. Id. An abuse of discretion occurs only "where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006).
In this case, Defendant was convicted of robbery with a dangerous weapon and possession of a firearm by a felon while on probation for one count of breaking and entering, one count of forgery, and one count of obtaining property by false pretenses. Defendant admitted he had violated the terms of his probation. Defendant's prior record level worksheet indicated that he had previously been convicted of possession of a stolen motor vehicle, two counts of breaking and entering, and common law robbery. The trial court examined the record before it and considered whether to run the sentences concurrently or consecutively. Ultimately, the trial court concluded that Defendant was a "threat" and that "history here indicates that this is not appropriate for a concurrent sentence." Based on the transcript of the proceedings and the record before this Court, we cannot say that the trial court's decision to run Defendant's activated sentences consecutive to his present prison term was "manifestly unsupported by reason" or "could not have been the result of a reasoned decision." Id. Accordingly, we find no abuse of discretion. Defendant's argument is overruled.
2. Possession of a Firearm by a Felon
Defendant further contends that "they did not read my rights to me on the [fire]arm by felon so there[fore] I am not lawfully in violation under N[orth] C[arolina] laws."
Before the Court in the present matter is Defendant's judgment and commitment upon probation revocation in case numbers 08 CRS 110848 and 09 CRS 77977-78. In order to attack the validity of the possession of a firearm by a felon conviction in Alamance County, Defendant is required to appeal from the judgment entered in that case. N.C. R. App. P. 4. Defendant's argument is misplaced and is overruled.
Accordingly, we find no merit in Defendant's arguments. Further, in accordance with Anders and Kinch, we have fully examined the record to determine whether any issues of arguable merit appear therefrom or whether the appeal is wholly frivolous. We conclude the appeal is wholly frivolous. The judgments from which Defendant appeals are
AFFIRMED.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).