Opinion
No. COA11–1436.
2012-07-17
STATE of North Carolina v. Michael Oneil EASON.
Attorney General Roy Cooper, by Assistant Attorney General Eryn E. Linkous, for the State. Marie H. Mobley for defendant appellant.
Appeal by defendant from judgment entered 15 June 2011 by Judge Milton F. Fitch, Jr., in Northampton County Superior Court. Heard in the Court of Appeals 2 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Eryn E. Linkous, for the State. Marie H. Mobley for defendant appellant.
McCULLOUGH, Judge.
Michael Oneil Eason (“defendant”) appeals from judgment entered upon his plea of guilty to possession with intent to sell or deliver cocaine. The sole issue he raises on appeal is whether the trial court erred in calculating his prior record level. We remand for resentencing.
On 15 June 2011, defendant pled guilty to possession with intent to sell or deliver cocaine. The trial court determined defendant to be a Level V offender based on fourteen prior record level points, and sentenced defendant to a term of fifteen to eighteen months' imprisonment. Defendant timely appealed.
Defendant contends the trial court erred in calculating his prior record level since one of his offenses, possession of marijuana up to half an ounce, was mistakenly listed as a Class 1 misdemeanor rather than a Class 3 misdemeanor, and therefore should not have been counted. The State concedes that this offense should not have been used in calculating defendant's prior record level. We agree.
At all relevant times pertinent to this case, N.C. Gen.Stat. § 90–95(d)(4) (2011) has classified the offense of possession of marijuana up to half an ounce as a Class 3 misdemeanor. Prior record level points are not assigned to Class 3 misdemeanors. N.C. Gen.Stat. § 15A–1340.14(b)(5) (2011) (listing prior misdemeanor convictions for which one prior record level is assigned; does not include Class 3 misdemeanors). Without the improperly added point for this offense, defendant should have thirteen prior record level points, which makes him a Level IV, rather than a Level V, offender. N.C. Gen.Stat. § 15A–1340.14(c). Since the prior record level was incorrectly determined, we remand for re-sentencing.
Remanded for resentencing. Judges HUNTER (ROBERT C.) and ELMORE concur.
Report per Rule 30(e).