Opinion
No. COA11–1121.
2012-05-1
STATE of North Carolina v. Veshan M. CHAMBERS.
Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State. Geoffrey W. Hosford, for defendant-appellant.
Appeal by defendant from judgment entered 17 February 2011 by Judge Michael R. Morgan in Durham County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for the State. Geoffrey W. Hosford, for defendant-appellant.
CALABRIA, Judge.
Veshan M. Chambers (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of possession with intent to sell or deliver cocaine (“PWISD”). We find no error.
On 16 August 2010, defendant was indicted for PWISD cocaine. A jury returned a guilty verdict for PWISD. At sentencing, the trial court found that defendant was a level III offender with seven prior record level points. The trial court sentenced defendant to a minimum of eight to a maximum of ten months in the North Carolina Department of Correction. Defendant appeals.
On appeal, defendant solely challenges the trial court's calculation of his prior record level. In the instant case, the trial court assigned defendant the following: (1) four points for a prior class E, F, or G felony conviction; (2) one point for a prior class A1 or 1 misdemeanor conviction; (3) one point because the elements of defendant's present offense were included in a prior offense; and (4) one point because the offense was committed while defendant was on probation.
Defendant does not contest the first five points, which are based upon his prior convictions, but argues that the trial court erred in assessing the two additional points. SeeN.C. Gen.Stat. § 15A–1340.14(b)(6) and (b)(7) (2011). Defendant contends that both findings violate Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004), because the jury did not make such findings beyond a reasonable doubt. Therefore, defendant contends that he should be resentenced as a level II offender with five prior record level points.
We address defendant's challenge to the point assigned upon the trial court's finding that the elements of defendant's present offense were included in a prior offense, which is authorized pursuant to N.C. Gen.Stat. § 15A–1340.14(b)(6). We have previously held that Blakely does not “preclude the trial court from assigning a point in the calculation of one's prior record level where ‘all the elements of the present offense are included in [a] prior offense.’ “ State v. Poore, 172 N.C.App. 839, 843, 616 S.E.2d 639, 641–42 (2005). We reasoned that “[t]he exercise of assigning a point for the reason set forth in G.S. § 15A–1340.14(b)(6) is akin to the trial court's determination that defendant had in fact been convicted of certain prior offenses, and is not something that increases the ‘statutory maximum’ within the meaning of Blakely ....” Id. at 843,616 S.E.2d at 642. Based on the foregoing, we reject defendant's argument and hold that the trial court properly assessed defendant one point pursuant to N.C. Gen.Stat. § 15A1340.14 (b)(6).
When added to defendant's five uncontested points, the point assessed pursuant to N.C. Gen.Stat. § 15A–1340.14(b)(6) is sufficient to move defendant from prior record level category II to prior record level category III. SeeN.C. Gen.Stat. § 15A–1340.14(c). Accordingly, we need not address defendant's challenge to the trial court's assessment of a prior record level point upon a finding that defendant was on probation when the offense was committed.
No error. Judges STROUD and BEASLEY concur.
Report per Rule 30(e).