Opinion
No. COA12–48.
2012-07-17
STATE of North Carolina v. Ernest Jewerrn WRIGHT.
Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant-appellant.
Appeal by Defendant from judgment entered for both 06 CRS 3692 and 06 CRS 50243 on 1 June 2010 by Judge Gregory A. Weeks in Bladen County Superior Court. Heard in the Court of Appeals 21 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Ernest Jewerrn Wright (“Defendant”) appeals from judgments sentencing him as a level VI offender. Defendant argues he is entitled to a new sentencing hearing because (1) the trial court did not conclude that Defendant's prior out-of-state offenses were substantially similar to North Carolina offenses and (2) the trial court erred in calculating his prior record level. We remand for a new sentencing hearing on both 06 CRS 50243 and 06 CRS 3692.
Defendant's middle name is given as “Jewerrn” in the 1 June 2010 judgment orders, “Jawerrn” on the 23 May 2008 verdict and 1 June 2010 sentencing worksheet, and “Jawern” on the 17 October 2011 order allowing certiorari.
I. Factual & Procedural Background
Defendant was indicted in 06 CRS 50243 (the “drug charge”) on 20 March 2006 for providing a controlled substance to an inmate. Defendant was indicted in 06 CRS 3692 on 28 August 2006 for felonious breaking or entering, felonious larceny, felonious possession of stolen goods, and conspiracy to commit felony breaking or entering and felony larceny. Superseding indictments were filed on 5 May 2008 for the drug charge and on 7 January 2008 for the charges of felonious breaking or entering, felonious larceny, felonious possession of stolen goods, and conspiracy to commit felony breaking or entering and felony larceny.
On 23 May 2008, Defendant was convicted by a jury of the drug charge in Bladen County Superior Court, the Honorable Jerry Cash Martin, presiding. The trial court entered an order deferring sentencing and entry of judgment pending further proceedings.
On 1 June 2010, pursuant to a plea arrangement, Defendant plead guilty to felony breaking or entering, felony larceny, and conspiracy to commit felony breaking or entering and larceny (hereinafter, the “theft charges”). Also on 1 June 2010, Defendant was sentenced by Judge Gregory A. Weeks for both the drug charge and the theft charges. At the sentencing hearing, the State's evidence tended to show the following.
Defendant's record included three sets of out-of-state convictions. On 4 March 1985, Defendant pled guilty to “Attempted Murder 2nd Degree” in New York. On 25 July 1978, Defendant was convicted of “Petit Larceny,” “Assault 3rd Degree,” “Attempted Robbery 3rd Degree,” and “Attempted Burglary 3rd Degree” in New York. On 30 May 1980, Defendant was found guilty of “Robbery 3rd Degree” and “Escape” in Connecticut. The trial court classified these three sets of out-of-state convictions as Class C, Class H, and Class G felonies, respectively. For each offense, Defendant was assigned six, two, and four prior record level points, respectively. No comparison was made to determine if the out-of-state offenses were substantially similar to these North Carolina classifications.
The State also presented evidence that Defendant was convicted of three offenses in North Carolina. On 5 June 2006, Defendant was convicted of misdemeanor escape from a local jail. On 23 May 2008, Defendant was found guilty of the drug charge. On 2 November 2009, Defendant was convicted of attempted first degree murder. The trial court classified these three in-state convictions as a Class 1 Misdemeanor, a Class H felony, and a Class B2 felony, respectively. For each offense, Defendant was assigned one, two, and six prior record level points, respectively. Defendant did not present evidence at the sentencing hearing.
Combining the in-state and out-of-state convictions, including the conviction for the drug charge, the sentencing worksheet for the theft charges shows the trial court assigned Defendant 21 prior record level points. No sentencing worksheet was provided in the record for the drug charge. The judgment for the drug charge, however, shows the trial court also assigned 21 prior record level points in calculating Defendant's sentence for the drug charge.
Defendant was sentenced to a term of imprisonment of 20 to 24 months for the drug charge. For the theft charges, Defendant was sentenced concurrently to 20 to 24 months for felony breaking or entering, 20 to 24 months for felony larceny, and 10 to 12 months for conspiracy to commit felony breaking or entering and felony larceny.
In open court following sentencing, Defendant entered notice of appeal to this Court for the drug charge. However, Defendant did not enter timely notice of appeal on the theft charges. Thereafter, Defendant petitioned this Court for writ of certiorari to allow belated appeal of the theft charges, and, on 17 October 2011, this Court granted Defendant's petition and ordered consolidation of Defendant's appeals for both the drug charge and the theft charges.
II. Jurisdiction
As Defendant appeals from the final judgment of a superior court, an appeal lies of right with this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
III. Analysis
Defendant first argues he is entitled to a new sentencing hearing on all counts because the trial court erred by classifying his prior out-of-state convictions without concluding that they were substantially similar to North Carolina offenses. We agree.
This Court recently addressed this issue directly for this Defendant in State v. Wright, ––– N.C.App. ––––, 708 S.E.2d 112 (2011). This Court in Wright emphasized N.C. Gen.Stat. § 15A–1340.14(e) (2011), which provides:
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.
In Wright, the trial court classified Defendant's prior out-of-state convictions without concluding that they were substantially similar to North Carolina offenses. Wright, ––– N .C.App. at ––––, 708 S.E.2d at 125–126. This Court held that “[s]ince the State failed to demonstrate the substantial similarity of Defendant's out-of-state convictions to North Carolina crimes and since the trial court failed to determine whether the out-of-state convictions were substantially similar to North Carolina offenses, we must remand for resentencing.” Id. at ––––, 708 S.E.2d at 126.
Here, while Defendant faces new convictions, the error committed by the trial court remains the same. The trial court classified Defendant's 1978 New York, 1985 New York, and 1980 Connecticut convictions as Class H, C, and G felonies, respectively, without a substantial similarity analysis. The State provided neither the relevant out-of-state statutes nor any comparison to relevant North Carolina statutes. Similar to the trial court in Wright, here, “the trial court did not analyze or determine whether the out-of-state convictions were substantially similar to North Carolina offenses.” Id. Thus, we remand for new sentencing hearings on the drug charge and the theft charges.
Defendant next argues the trial court erred when calculating his prior record level for the drug charge by assigning prior record level points based on the drug charge. Because we are remanding for resentencing, we address Defendant's argument to provide guidance on remand. “The 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(a) (2011) (emphasis added). “For the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest.” N.C. Gen.Stat. § 15A–1331(b) (2011). “As a criminal sentencing statute, the Act must be strictly construed.” State v. West, 180 N.C.App. 664, 669, 638 S.E.2d 508, 512 (2006) (citation omitted).
Here, on the sentencing worksheet for the theft charges, the trial court assigned Defendant 21 prior record level points, with two prior record points specifically assigned based on the drug conviction, as shown below.
+-----------------------------------------------------------------------------+ ¦Offenses ¦Conviction ¦Class¦State ¦ ¦ ¦Date ¦ ¦ ¦ +-------------------------------------------+-------------+-----+-------------¦ ¦Attempted Robbery 3rd Degree ¦7/25/1978 ¦H ¦New York ¦ +-------------------------------------------+-------------+-----+-------------¦ ¦Robbery 3rd Degree ¦5/30/1980 ¦G ¦Connecticut ¦ +-------------------------------------------+-------------+-----+-------------¦ ¦Attempted Second Degree Murder ¦3/4/1985 ¦C ¦New York ¦ +-------------------------------------------+-------------+-----+-------------¦ ¦Escape ¦6/5/2006 ¦1 ¦North ¦ ¦ ¦ ¦ ¦Carolina ¦ +-------------------------------------------+-------------+-----+-------------¦ ¦Providing Drugs to Inmate [ (the drug ¦[5/23/2008 ¦H ¦North ¦ ¦charge) ] ¦ ] ¦ ¦Carolina ¦ +-----------------------------------------------------------------------------+
The date was not included on the sentencing worksheet but is located on page 31 of the Record.
+---------------------------------------------------------+ ¦Attempted First Degree Murder¦11/2/2009¦B2¦North Carolina¦ +---------------------------------------------------------+
Number Type of Conviction Factors Points-------------------------------------------------------------------------------0 Prior Felony Class A x10 0-------------------------------------------------------------------------------0 Prior Felony Class B1 x9 0-------------------------------------------------------------------------------2 Prior Felony Class B2 or C or D x6 12-------------------------------------------------------------------------------1 Prior Felony Class E or F or G x4 4-------------------------------------------------------------------------------2 [ (includes the drug Prior Felony Class H or I x2 4 charge) ]-------------------------------------------------------------------------------1 Prior Class A1 or 1 Misdemeanor x1 1------------------------------------------------------------------------------- Subtotal:
For the drug charge, although no sentencing worksheet is provided in the record, the judgment shows the trial court again assigned Defendant 21 prior record level points, even though Defendant was convicted of the drug charge before the theft charges. This indicates the trial court may have improperly included the drug charge as a prior conviction in determining Defendant's sentence on the drug charge.
This Court recognizes that entry of judgment for the drug charge was deferred to more than two years after Defendant was found guilty/convicted for the drug charge. Under a strict construction of the statute, one could argue the drug charge thus constitutes a prior conviction for itself. However, we do not read the Sentencing Act to allow such an unjust result. See Id. at 669, 638 S.E.2d at 512 (holding that this Court will not read the Sentencing Act to support a result that “would be unjust and in contravention of the intent of the General Assembly”). In West, several charges were joined at trial against the defendant, and the defendant was found guilty of all charges. Id. at 665, 638 S.E.2d at 509. The trial court sentenced the defendant for certain convictions before lunch and certain convictions after lunch. Id. at 669, 638 S.E.2d at 512. The court used the convictions for which the defendant was sentenced before lunch as a prior conviction when sentencing the defendant for the other convictions after lunch. Id. This Court held that because the Sentencing Act did not address the effect of joined charges when calculating previous convictions to determine prior record level, it would be unjust to reach a result in contravention of the intent of the General Assembly and remanded for resentencing. Id. at 670, 638 S.E.2d at 512 (“ ‘[T]he “rule of lenity” forbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention.’ “ (citation omitted)).
Here, like in West, the Sentencing Act does not specifically address the sentencing situation at hand. Therefore, we hold that to read the Sentencing Act to permit the conviction in a particular case to serve as a previous conviction in that same case only because the conviction date occurred two years before sentencing would be unjust and in contravention of the intent of the General Assembly. Further, the rule of lenity applies, forbidding this Court from interpreting the statute to increase the penalty that it places on Defendant where the Legislature failed to clearly state its intention. Therefore, in determining Defendant's prior record level when sentencing Defendant for the drug charge, it would be error for the trial court to use the drug charge itself as a prior conviction.
IV. Conclusion
For the foregoing reasons, we
Remand for resentencing. Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).