Opinion
No. COA10-1337
Filed 16 August 2011 This case not for publication
Appeal by defendant from judgment entered 26 April 2010 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 14 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Greene Wilson, P.A., by Thomas Reston Wilson, for Defendant-appellant.
Johnston County No. 09 CRS 57013.
Defendant Alexander Smalls appeals from judgment sentencing him to a minimum term of twenty-four months and a maximum term of thirty-eight months imprisonment in the custody of the North Carolina Department of Correction based on his pleas of guilty to discharging a weapon into occupied property and conspiracy to commit robbery with a dangerous weapon. On appeal, Defendant contends that the trial court erred by accepting his guilty pleas on the grounds that his pleas were not the result of a free and informed choice and that the trial court erroneously considered an out-of-state conviction in calculating his prior criminal record level. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant has not established any basis for invalidating his guilty pleas and that the trial court erred in calculating Defendant's prior record level, requiring us to remand this case to the Johnston County Superior Court for resentencing.
I. Background
On 26 October 2009, a warrant for arrest charging Defendant with discharging a weapon into occupied property and conspiracy to commit robbery with a dangerous weapon was issued. On 2 November 2009, the Johnston County grand jury returned a bill of indictment charging Defendant with discharging a weapon into occupied property and conspiracy to commit robbery with a dangerous weapon. On 26 April 2010, Defendant entered pleas of guilty to discharging a firearm into occupied property and conspiracy to commit robbery with a dangerous weapon. After accepting Defendant's guilty pleas, the trial court found that Defendant had accumulated one prior record point and should be sentenced as a Level II offender. Based upon these determinations, the trial court consolidated Defendant's convictions for judgment and sentenced Defendant to a minimum term of twenty-four months and a maximum term of thirty-eight months imprisonment in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgment.
II. Substantive Legal Issues A. Acceptance of Defendant's Guilty Pleas
In his first challenge to the trial court's judgment, Defendant argues that his guilty pleas to discharging a weapon into occupied property and conspiracy to commit robbery with a dangerous weapon are "invalid because the plea was not the free and informed choice of the Defendant and the plea was not made knowingly and understandingly." Defendant's argument lacks merit.
As a preliminary matter, we must address Defendant's right to appeal this issue. The scope of a criminal defendant's right to appeal from entry of a guilty plea is governed by N.C. Gen. Stat. § 15A-1444(a1), which provides that "[a] defendant who has . . . entered a plea of guilty . . . to a felony[] is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by the evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense," and N.C. Gen. Stat. § 15A-1444(a2), which provides that "[a] defendant who has entered a plea of guilty or no contest to a felony . . . is entitled to appeal as a matter of right the issue of whether the sentence imposed:
(1) Results from an incorrect finding of the defendant's prior record level under [N.C. Gen. Stat. §] 15A-1340.14 or the defendant's prior conviction level under [N.C. Gen. Stat. §] 15A-1340.21;
(2) Contains a type of sentence disposition that is not authorized by [N.C. Gen. Stat. §] 15A-1340.17 or [N.C. Gen. Stat. §] 15A-1340.23 for the defendant's class of offense and prior record or conviction level; or
(3) Contains a term of imprisonment that is for a duration not authorized by [N.C. Gen. Stat. §] 15A-1340.17 or [N.C. Gen. Stat. §] 15A-1340.23 for the defendant's class of offense and prior record or conviction level.
The issue of whether Defendant's pleas were the product of his free and informed choice is not among the issues as to which N.C. Gen. Stat. § 15A-1444 allows an appeal as of right. Instead, N.C. Gen. Stat. § 15A-1444(e) provides that, "[e]xcept as provided in [N.C. Gen. Stat. §§ 15A-1444(a1) and 15A-1444(a2)] and [N.C. Gen. Stat. §] 15A-979 [, which addresses situations in which the defendant pleads guilty after the denial of a suppression motion], and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest . . ., but he may petition the appellate division for review by a writ of certiorari. . . ." As a result:
[a]lthough defendant is not entitled to appeal from his guilty plea as a matter of right, his arguments are reviewable pursuant to a petition for writ of certiorari. See State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987) (electing to grant certiorari to review defendant's "contention that the trial court improperly accepted his guilty plea" where defendant was not entitled to appeal as matter of right); State v. Rhodes, 163 N.C. App. 191, 193, 592 S.E.2d 731, 732 (2004) ("Under Bolinger, defendant in this case is not entitled to appeal from his guilty plea as a matter of right, but his arguments may be reviewed pursuant to a petition for writ of certiorari.").
State v Keller, 198 N.C. App. 639, 641, 680 S.E.2d 212, 213-14 (2009). In recognition of the fact that he has no appeal of right to this Court in connection with his challenge to the validity of his guilty pleas, Defendant has filed a petition for the issuance of a writ of certiorari which, in the exercise of our discretion, we elect to grant.
In his brief, Defendant contends that "[t]he record in this case does not establish a knowing and voluntary plea." In support of this contention, Defendant cites to a portion of the plea hearing in which the trial court discussed the terms of his guilty pleas with Defendant:
Q. Are you pleading guilty under the terms of a negotiated plea agreement?
A. Say again, Your Honor.
Q. Any deal or agreement with the DA's Office?
A. No sir.
Q. And indeed that is what it appears to be, that there is no agreement with the DA's office. But now I did meet at the request of your lawyer with your lawyer and Assistant DA back in chambers this morning and they discussed your case with me. I did indicate to your lawyer that if you were to enter pleas of guilty that I would consider very seriously any request he might make to run whatever sentences that I might impose on the two charges concurrently or at the same time, or alternatively I might consolidate the charges for one judgment. Has he explained that to you?
A. Yes, he did, sir.
Q. All right. Do you now personally plead guilty understanding that there [have] been no concessions made by the DA in exchange for your pleas of guilty?
A. Yes, sir.
Q. Other than the fact that I told your lawyer that I would consider consolidating the charges for purposes of judgment, has anybody promised you anything or threatened you in any way to cause you to enter this plea against your wishes?
A. No, sir.
Q. You enter the plea of your own free will, fully understanding what you're doing?
A. Yes, sir.
According to Defendant, this colloquy indicates that he was "tacitly induced by the trial court to plead guilty in exchange for concurrent sentences" and that the "trial court's tacit inducement strongly implied that if [Defendant] chose to exercise his right to trial and was found guilty of the same two offenses, he would likely get consecutive sentences." Defendant has not, however, identified any particular statement by the trial court that could reasonably be read to constitute an "inducement" or "threat." Instead, the record simply shows that the trial court met with counsel in chambers at the request of Defendant's trial counsel for the purpose of discussing Defendant's pleas and that, during the course of that meeting, the trial court agreed to consider imposing concurrent or consolidated sentences upon Defendant in the event that he pled guilty to the offenses with which he had been charged. Such conversations are expressly permitted by N.C. Gen. Stat. § 15A-1021(a). Under that set of circumstances, it was completely appropriate for the trial court to place the substance of this conversation in the record at the hearing held in connection with the entry of Defendant's pleas and to ensure that Defendant understood that, while the trial court had agreed to "consider" entering a consolidated judgment or imposing concurrent sentences, there was no guarantee that such an outcome would occur. As a result, this portion of the record does not in any way suggest that the trial court did anything to coerce Defendant into entering a guilty plea.
Secondly, Defendant suggests that we should treat his notice of appeal as an "attempt to withdraw his guilty plea" and analyze the merits of his challenge to his guilty pleas utilizing the criteria typically employed in order to address such situations. Defendant cites no authority to support adoption of this suggestion, and we know of none. As a result, we decline Defendant's invitation to treat his notice of appeal as the equivalent of a motion for leave to withdraw his pleas of guilty.
Thirdly, Defendant argues that the trial court erred by accepting his guilty pleas on the grounds that, during the sentencing hearing, he "denied ever being present" at the location where the offenses to which he pled guilty occurred. The record does not support Defendant's interpretation of the events that occurred in the trial court during his sentencing hearing.
At the plea hearing, Defendant agreed that there was "evidence sufficient to support the plea and that the DA [could] simply summarize the evidence for [the court.]" The prosecutor's evidentiary summary indicated that the State had sufficient evidence to show that, on 19 October 2009, Defendant and six other people planned to rob Tyrone Pride. In the early morning hours of 20 October 2009, Defendant and three other individuals went to Mr. Pride's trailer. One of the co-defendants, Michael Lloyd, entered Mr. Pride's mobile home with a gun and demanded to be given money and drugs. Although Mr. Lloyd aimed his gun at several people and repeatedly pulled the trigger, the weapon failed to discharge. As Defendant waited outside on the porch, two of the other participants saw him fire a shotgun into the door of the mobile home.
Although Defendant's trial counsel was provided with an opportunity to respond to the prosecutor's summary of the evidence, he never disputed the accuracy of the prosecutor's assertions that Defendant had participated in developing the plan to rob Mr. Pride and that two witnesses were prepared to testify that they had seen Defendant firing into an occupied trailer. Instead, Defendant's trial counsel focused his efforts on providing the trial court with information tending to put the State's witnesses in a bad light. For example, Defendant's trial counsel asserted that Mr. Pride was a known drug dealer, that the trailer at which the events underlying Defendant's convictions had occurred was a known "hot spot" for drugs, and that some of the individuals inside the trailer were of questionable credibility or had been involved in criminal activity on earlier occasions. In addition, Defendant's trial counsel informed the trial court that one of the co-defendants was related to Defendant. After hearing from counsel for both parties, the trial court accepted Defendant's guilty pleas and allowed the parties to address sentencing-related issues.
At the sentencing hearing, Defendant's trial counsel stressed Defendant's ties to the community and the fact that various other individuals involved in the underlying incident had received probationary sentences. Prior to the imposition of sentence, the trial court gave Defendant an opportunity to speak:
THE COURT: . . . Yes, sir, Mr. Smalls. Anything you'd like to say?
THE DEFENDANT: I would say that over the six months I've been here I've had a lot of time to think about the decisions that I've made and the people I was hanging out with. Though it was family members, it wasn't the right people to be hanging out and doing things [with]. Though I was at the house many times, I never went upon to execute. I never went upon 114 Liberty Lane, Tyrone's house. I would ask you to take mercy on me today. I have a 20-month-old daughter that I can look after. I get out, I can show you that I could do right.
In response, the trial court sought clarification of Defendant's statements:
THE COURT: [Defense Counsel], I have listened to what your client just said. I also remember on Question Number 14, was he in fact guilty, his response was yes. Can you reconcile to him —
[DEFENSE COUNSEL] Yes. I had a talk with him about what people were going to say. This was a groupie. Each one — the consensus is that two girls and all six boys and one kid named Kadeem didn't have much to do with this at all, talked about what they were going to do. My client was part of that conversation. I don't think he was going to sit here and tell you he was not. I think the statement by Kadeem is reasonable. He was at the house when the plan was made. He took part in that. They went out and executed what they talked about. I explained to him the different theories of law from acting in concert and things like that and he made the decision to take the plea.
On appeal, Defendant contends that he "denied ever being present at Mr. Pride's residence" during his allocution and that this assertion casts doubt on the validity of his guilty pleas. A careful reading of the record indicates, however, that Defendant actually admitted that he "was at the house many times." In addition, the most reasonable understanding of Defendant's statements that he "never went upon to execute" and "never went upon 114 Liberty Lane, Tyrone's house," is that he was drawing a distinction between his limited participation in the events that occurred at Mr. Pride's trailer and that of Mr. Lloyd, who went inside the trailer and tried to shoot several people (or, in Defendant's words, "went upon to execute"). This understanding of Defendant's comment is also consistent with the general tenor of his remarks at the sentencing hearing, which consisted, in general terms, of an expression of remorse and a request for leniency rather than a denial of guilt.
Aside from the fact that we do not believe that Defendant's statements to the trial court constituted a denial of guilt, we note that a defendant need not specifically admit his guilt in order to enter a valid guilty plea. For example, in Bolinger, 320 N.C. at 603, 359 S.E.2d at 463, the Supreme Court rejected the defendant's challenge to the validity of his guilty pleas, which was predicated on the fact that he had never been asked whether he was, in fact, guilty, by stating that:
We must also reject defendant's contention that the court's acceptance of his plea was in error because the court failed to inquire whether he was in fact guilty. Nothing in [N.C. Gen. Stat.] § 15A-1022 requires the court to make such an inquiry. Further, the United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L. Ed. 2d 162, 171 (1970), held that
"while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."
At bottom, "the record reveals Defendant completed and signed a Transcript of Plea form and the trial court conducted the proper inquiry," which "is sufficient to show Defendant's plea was entered into knowingly and voluntarily, with full awareness of the direct consequences of his plea." State v. Russell, 153 N.C. App. 508, 511, 570 S.E.2d 245, 248 (2002) (citing State v. Wilkins, 131 N.C. App. 220, 224, 506 S.E.2d 274, 277 (1998)). As a result, we conclude that Defendant's final challenge to the acceptance of his guilty plea lacks merit.
B. Calculation of Prior Record Points
Secondly, Defendant argues that the trial court erroneously calculated his prior record level by assigning prior record points to an out-of-state conviction not shown to be a felony without making the required determination that the offense was substantially similar to a North Carolina offense. Defendant's contention has merit.
The second issue addressed in Defendant's brief is appealable as a matter of right pursuant to N.C. Gen. Stat. § 15A-1444(a2)(1).
"The determination of an offender's prior record level is a conclusion of law that is subject to de novo review on appeal. It is not necessary that an objection be lodged at the sentencing hearing in order for a claim that the record evidence does not support the trial court's determination of a defendant's prior record level to be preserved for appellate review. [S]ee N.C. Gen. Stat. §§ 15A-1446(d)(5), (d)(18). As a result, the issue before the Court is simply whether the competent evidence in the record adequately supports the trial court's decision that Defendant had accumulated [one] prior record point[] and should be sentenced as a prior record level [II] offender." State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009) (citing State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007), and State v. Morgan, 164 N.C. App. 298, 304, 595 S.E.2d 804, 809 (2004)), disc. review denied, ___ N.C. ___, 691 S.E.2d 414 (2010).
According to N.C. Gen. Stat. § 15A-1340.14(a), "[t]he prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions that the court . . . finds to have been proved in accordance with this section." N.C. Gen. Stat. § 15A-1340.14(b) delineates the number of prior record points assigned to each class of felony and misdemeanor offense. "The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." N.C. Gen. Stat. § 15A-1340.14(f). The State can meet its burden in several ways, including a "stipulation of the parties." N.C. Gen. Stat. § 15A-1340.14(f).
The trial court's consideration of out-of-state convictions for sentencing purposes is, however, governed by certain additional legal principles. The procedure for calculating the number of prior record points associated with an out-of-state conviction is set forth in N.C. Gen. Stat. § 15A-1340.14(e), which provides that:
Except as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points.
"According to the statute, the default classification for out-of-state felony convictions is `Class I.' Where the State seeks to assign an out-of-state conviction a more serious classification than the default Class I status, it is required to prove `by the preponderance of the evidence' that the conviction at issue is `substantially similar' to a corresponding North Carolina felony." State v. Hinton, 196 N.C. App. 750, 755, 675 S.E.2d 672, 675 (2009). Similarly, the default classification for an out-of-state misdemeanor is Class 3. However, N.C. Gen. Stat. § 15A-1340.14(b)(5) provides in relevant part:
Points are assigned as follows: . . .
(5) For each prior misdemeanor conviction as defined in this subsection, 1 point. For purposes of this subsection, misdemeanor is defined as any Class A1 and Class 1 nontraffic misdemeanor offense[.] . . .
As a result, because the default classification for an out-of-state misdemeanor conviction does not permit the assignment of any prior record points, no points may be assigned to an out-of-state misdemeanor conviction for sentencing purposes unless "the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina." N.C. Gen. Stat. § 15A-1340.14(e).
"[W]hether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court[.]" State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604 (2006). "Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate." State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (citations omitted), disc. review denied, 297 N.C. 179, 254 S.E.2d 38 (1979). As a result, "while the trial court may not accept a stipulation to the effect that a particular out-of-state conviction is `substantially similar' to a particular North Carolina felony or misdemeanor, it may accept a stipulation that the defendant in question has been convicted of a particular out-of-state offense and that this offense is either a felony or a misdemeanor under the law of that jurisdiction." Bohler, 198 N.C. App at 637-38, 681 S.E.2d at 806.
At the sentencing hearing, the parties engaged in the following colloquy concerning the number of prior record points that Defendant had accumulated:
THE COURT: . . . For sentencing purposes I do have a worksheet which purports to show that the defendant is a Prior Record Level II based upon a conviction for the sale to or possession by a stolen pistol. I have a date of conviction. I am assuming this is a felony [considering] how you have it scored, but I see that it happened in Bamberg. There is no such state. Where was that done?
[PROSECUTOR]: South Carolina.
THE COURT: Stipulate South Carolina?
[DEFENSE COUNSEL]: It is actually a Class 1 misdemeanor. It is a Class 1 misdemeanor. He only has one point instead of two.
THE COURT: You disagree with that, Mr. Sandling?
[PROSECUTOR]: No.
THE COURT: I'll change the way it shows . . . because it could make a difference down the road. . . .
Thus, the prior record level worksheet contained in the record, stipulated to by the parties, and submitted to the trial court at the sentencing hearing assigns Defendant one prior record point for a Class A1 or 1 misdemeanor, a prior record history that is sufficient to result in Defendant's classification as a Level II offender. As a result of the parties' stipulation to the accuracy of the information contained in the prior record worksheet and the comments made in open court at Defendant's sentencing hearing, the record contains a valid stipulation that Defendant had previously been convicted of a South Carolina misdemeanor offense identified as "Sale to/Poss by/Stolen Pistol." The record does not, however, contain any evidence tending to show the extent, if any, to which this offense was substantially similar to any particular North Carolina criminal offense. As a result, the trial court was required to treat this out-of-state offense, which the parties stipulated to be a misdemeanor, as a Class 3 misdemeanor, to which no points could be assigned, rather than as a Class 1 misdemeanor, to which one point was assigned, resulting in Defendant's classification as a Level I, rather than a Level II, offender.
The offenses for which Defendant was sentenced were committed on 20 October 2009. N.C. Gen. Stat. § 15A-1340.14 was amended, effective 1 December 2009 and applicable to offenses committed on and after that date, to provide that offenders with one prior record point are now classified as Level I offenders. However, since the offenses for which Defendant was convicted were committed before 1 December 2009, the previous statutory provisions concerning the calculation of Defendant's offense level are applicable in this case.
The State, however, contends that any error committed by the trial court was harmless since Defendant was actually convicted of violating S.C. Code Ann. § 16-23-30 (2010), "Sale or delivery of handgun to and possession by certain persons unlawful; stolen handguns." S.C. Code Ann. § 16-23-30, which is a felony offense, S.C. Code Anno. § 16-23-50, prohibits the sale or possession of handguns in certain circumstances or by certain individuals, including the possession of a handgun by a person under the age of eighteen. Although the record indicates that Defendant was nineteen years old at the time he was convicted of violating S.C. Code Ann. § 16-23-30, it does not indicate the date upon which Defendant committed the offense in question.
In its brief, the State argues that we should rectify the trial court's error by treating Defendant's prior conviction as a Class I felony. In essence, the State contends that we should conduct the analysis that the trial court should have undertaken and conclude, on the basis of that analysis, that any error committed by the trial court did not prejudice Defendant. However, the record contains absolutely no evidence identifying the specific statute that Defendant was convicted of violating. For that reason, we have no way to be certain that the abbreviation "Sale to/Poss by/Stolen Pistol" refers to the statute identified in the State's brief. As a result, the record fails to establish either the specific offense that Defendant committed in South Carolina or whether the offense for which Defendant was convicted was substantially similar to either a North Carolina felony or a North Carolina Class A1 or Class 1 misdemeanor. Thus, we are unable to conclude that any error that the trial court committed in this case was harmless.
This Court rejected a similar harmless error argument in State v. Henderson, 201 N.C. App 381, 689 S.E.2d 462 (2009), in which we stated that:
The State also argues on appeal that any trial court error was harmless[.] . . . In advancing this argument, the State identifies in its brief the statutes under which it contends that defendant was convicted in South Carolina[.] . . . The State did not identify these South Carolina . . . statutes during sentencing before the trial court or in the record on appeal. The State may be correct in its contentions regarding each of these offenses, but it is not the proper role of this Court to engage in that determination in this case as neither we nor the trial court were presented with the necessary facts to make such a determination. The out-of-state crimes were not identified by statutes in the record, but instead only by brief and non-specific descriptions . . . which could arguably describe more than one specific South Carolina [offense]. . . . Accordingly, we will not speculate as to whether the State has for the first time, in its brief on appeal, properly identified the out-of-state statutes for comparison.
Henderson, 201 N.C. App at 387-88, 689 S.E.2d at 467 (citing State v. Palmateer, 179 N.C. App. 579, 581, 634 S.E.2d 592, 593 (2006)). We are unable to distinguish the facts at issue here from those under consideration in Henderson. As a result, we conclude that, although the trial court did not err by accepting Defendant's stipulation that he had been convicted of a misdemeanor in South Carolina, it erred by assigning prior record points to this conviction without first determining that his South Carolina conviction was for an offense that was "substantially similar" to a Class 1 misdemeanor. As a result, this case should be remanded to the Johnston County Superior Court for resentencing.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court did not err by accepting Defendant's guilty pleas to discharging a weapon into occupied property and conspiring to commit robbery with a dangerous weapon and that the trial court erred by assigning a prior record point to Defendant's South Carolina conviction in the absence of a finding that the offense in question was a felony or "substantially similar" to a North Carolina criminal offense. As a result, while we find no error in the proceedings that led to the acceptance of Defendant's guilty pleas, we conclude that this case must be remanded to the Johnston County Superior Court for resentencing.
AFFIRMED IN PART; REMANDED FOR RESENTENCING IN PART.
Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).