Opinion
No. COA02-1370
Filed 7 October 2003 This case not for publication
Appeal by defendant from judgment entered 14 June 2002 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 20 August 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Christopher W. Brooks, for the State. The Kelly Law Firm, by George E. Kelly, III, for defendant — appellant.
Pitt County No. 01CRS62293.
Christopher Lamont Williams ("defendant") appeals from a judgment and sentence entered based on his plea of guilty to possession of a firearm by a felon and assault inflicting serious injury. For the reasons stated herein, we affirm.
On 14 June 2002, defendant waived indictment and signed a Bill of Information charging him with possession of a firearm by a felon and assault inflicting serious injury. Defendant pled guilty to both charges. Under the guilty plea arrangement, defendant and the State agreed that the charges would be consolidated for judgment and that defendant would receive a sentence of sixteen to twenty months imprisonment to run concurrently with a sentence defendant was already serving for possession of a firearm by a felon. At the plea hearing, defendant stipulated to the factual basis to support his plea. Subsequently, the State presented the following summary of the evidence to the trial court. On the evening of 22 October 2000, Christopher Jones ("Jones") went to visit Latisha Williams ("Williams"), a woman he was seeing at the time. Later, while Jones was in Williams' home, defendant went to Williams' residence and used his key to enter her house. Defendant had been romantically involved with Williams in the past, and the two of them share a son. After defendant entered the house, he walked past Jones and went into the bedroom to have a discussion with Williams. Defendant then came out of the bedroom and started yelling at Jones to get out of the house. According to Jones, defendant pulled out a chrome handgun and hit him in the face with it. The police were called in response to the incident. During the investigation, Williams gave the police several different versions of what had occurred. Williams and defendant both denied that defendant ever had a gun. Following the summary of the evidence, the trial court accepted defendant's guilty plea and sentenced him to the agreed upon imprisonment term of sixteen to twenty months. Defendant appeals.
On appeal, defendant brings forth eight assignments of error, which essentially present issues regarding (I) the need for separate Bills of Information for defendant's charges; (II) the length of defendant's sentence; and (III) the sufficiency of the evidence.
I.
The first issue presented to this Court is whether the trial court erred in entering judgment against defendant based on his possession charge and assault charge both being on the same Bill of Information.
Section 14-415.1(c) of the North Carolina General Statutes provides that "[t]he indictment charging the defendant [with possession of a firearm by a felon] shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section." N.C. Gen. Stat. § 14-415.1(c) (2001). Defendant contends that this statute also applies to the single Bill of Information that charged him for both possession of a firearm by a felon and assault inflicting serious injury. However, Section 14-415(c) only addresses the need for separate indictments, not Bills of Information. See id. Since the language of this statute is clear and unambiguous, it must be construed as written with no room for judicial construction allowed. See State v. Hardy, 67 N.C. App. 122, 125, 312 S.E.2d 699, 702 (1984). Moreover, defendant waived indictment on both charges and pled guilty by signing the properly entered Bill of Information containing the charges. By doing so, defendant also effectively waived "'"all defenses other than that the indictment charge[d] no offense."'" State v. Caldwell, 269 N.C. 521, 526, 153 S.E.2d 34, 37-38 (1967) (citation omitted). Thus, assuming the Bill of Information was subject to Section 14-415.1(c), defendant's contention based solely on a technical error and not on the Bill of Information's content results in no error by the trial court.
II.
The second issue raised by defendant is whether the trial court had sufficient evidence: (1) to conclude that defendant's conviction for possession with intent to sell or deliver cocaine actually preceded the offense of possession of a firearm by a felon; (2) to correctly determine defendant's prior record level; and (3) upon which to base and ultimately accept defendant's guilty plea.
1.
Defendant contends the trial court committed plain error by using his conviction for possession with intent to sell or deliver cocaine to determine his prior record level because there was insufficient evidence that the conviction actually preceded the offense of possession of a firearm by a felon. Initially, we note that our Supreme Court has applied the plain error analysis only to jury instructions and evidentiary matters. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998). However, whether plain error review would be appropriate in this instance is irrelevant because defendant clearly stipulated to the factual basis provided by the State to support his plea, i.e., that his conviction for possession with intent to sell or deliver cocaine preceded the possession of a firearm by a felon charge. Our statutes provide that a prior conviction can be proven by stipulation of the parties. N.C. Gen. Stat. § 15A-1340.14(f)(1) (2001). Therefore, defendant's contention is without merit.
2.
Defendant also contends the trial court erred in calculating his prior record level. Specifically, defendant asserts that there was insufficient evidence to support the court's addition of one point towards his prior record level under Section 15A-1340.14(b)(7) of our statutes. Section 15A-1340.14(b)(7) provides: "If the offense was committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision, or while the offender was serving a sentence of imprisonment, or while the offender was on escape from a correctional institution while serving a sentence of imprisonment, 1 point." N.C. Gen. Stat. § 15A-1340.14(b)(7) (2001). The State concedes in its brief that there was no evidence to support the conclusion that defendant committed the offense of possession of a firearm by a felon pursuant to Section 15A-1340.14(b)(7). However, the State asserts that this Court has previously held that such an error is harmless if a defendant already has sufficient points for a determination of his prior record level at the disputed level. See State v. Smith, 139 N.C. App. 209, 219-20, 533 S.E.2d 518, 523-24 (2000).
A defendant must have at least five prior record level points to have a prior record level of "III." N.C. Gen. Stat. § 15A-1340.14(c)(3) (2001). In the instant case, the trial court determined that defendant had eight prior record level points. Defendant received four points because his prior conviction for possession with intent to sell or deliver cocaine was a Class G felony. See N.C. Gen. Stat. § 14-415.1(a); N.C. Gen. Stat. § 15A-1340.14(b)(3). Additionally, Section 15A-1340.14(b)(6) of our statutes provides that "[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level, 1 point." N.C. Gen. Stat. § 15A-1340.14(b)(6) (2001). At the time of defendant's plea arrangement, he was serving a sentence based on a conviction for possession of a firearm by a felon. That prior felony conviction has all the elements of defendant's present charge for possession of a firearm by a felon; thus, defendant properly received another point. The court's adherence to these two statutes alone results in defendant receiving at least five points, which is sufficient to qualify him as having a prior record level of "III."
3.
Defendant further contends there was insufficient evidence upon which the trial court could accept his plea of guilty. However, as we have previously stated in this opinion, defendant effectively waived this defense when he stipulated to the State's summary of the evidence. Therefore, defendant's last contention regarding sufficiency of the evidence is also without merit.
III.
The final issue before this Court is whether the court properly determined defendant's sentence. With respect to this issue, defendant contends N.C. Gen. Stat. § 15A-1340.16(d) (2001) precludes the trial court from using his prior felony conviction for possession with intent to sell or deliver cocaine as an aggravating factor for sentencing purposes. Defendant further contends the court sentenced him within the aggravated range without making specific findings of fact in support of an aggravated sentence as required by the Structured Sentencing Act. Yet, both of defendant's contentions are premised on the erroneous conclusion that his sentence was actually within the aggravated range.
The trial court sentenced defendant from sixteen to twenty months imprisonment as a Class G felon with a prior record level of "III." Section 15A-1340.17(c) of our statutes provides that the minimum presumptive range for a felon with defendant's felony class and prior record level is sixteen months. N.C. Gen. Stat. § 15A-1340.17(c) (2001). The corresponding maximum term of imprisonment for this presumptive term is twenty months. See N.C. Gen. Stat. § 15A-1340.17(d). Therefore, defendant was properly sentenced within the presumptive range, making defendant's contentions as to aggravation without merit.
For the aforementioned reasons, we affirm the trial court's judgment and sentence of defendant.
Affirmed.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).