An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-591 NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Stokes County Nos. 10 CRS 446, 50048-50, 51449 MELVIN CHARLES HARRELL
Appeal by defendant from judgment entered 8 December 2010
by Judge L. Todd Burke in Stokes County Superior Court. Heard
in the Court of Appeals 22 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General Phyllis A. Turner, for the State.
William B. Gibson for defendant-appellant.
BRYANT, Judge.
Because defendant’s felony conviction for escape from jail
was used both to establish his habitual felon status and to
calculate his prior record level in violation of General
Statutes section 14-7.6, we reverse the trial court’s judgment
and remand for resentencing. Because the trial court entered
judgment against defendant on a charge of possession of a -2- firearm by a felon, when no indictment had been entered as to
that charge, we vacate the trial court’s judgment as to that
charge.
On 5 April 2010, under file number 10 CRS 50048, a Stokes
County Grand Jury indicted defendant Melvin Charles Harrell on
the charge of extortion. Under file number 50049, defendant was
indicted on charges of breaking and entering a motor vehicle,
larceny, possession of stolen goods, and larceny of a firearm.
The grand jury also indicted defendant on attaining habitual
felon status; however, on 4 October 2010, a superseding
indictment on attaining habitual felon status was issued under
file number 10 CRS 446. Also, on 4 October 2010, under file
number 10 CRS 51449, the grand jury indicted defendant on the
charge of second-degree murder for the murder of eighty-four
year old Ida Plummer Stilley.
On 8 December 2010, defendant and the State entered into a
plea agreement wherein defendant agreed to plead guilty to
attaining habitual felon status under file number 10 CRS 446;
extortion under file number 10 CRS 50048; breaking and entering
of a motor vehicle, felony larceny, and larceny of a firearm
under file number 10 CRS 50049; possession of a firearm by a
felon under file number 10 CRS 50050; and voluntary -3- manslaughter, reduced from second-degree murder under file
number 10 CRS 51449.
The Honorable L. Todd Burke, Judge presiding, accepted
defendant’s guilty pleas. The trial court credited defendant
with six prior record level points, making him a level three
felon for sentencing purposes. The trial court entered a
consolidated judgment for all convictions and sentenced
defendant to a term of 104 to 134 months.
On 4 December 2012, defendant filed with this Court a pro
se petition for writ of certiorari for review of his sentence.
By order of this Court, defendant’s petition for writ of
certiorari “[was] allowed for the purpose of reviewing the
judgment entered 8 December 2010 . . . limited to those issues
for which Defendant-Petitioner has an appeal of right pursuant
to N.C. Gen. Stat. ' 15A-1444(a2).”1
__________________________________
On appeal, defendant raises the following issues: whether
the trial court erred in (I) calculating defendant’s prior
record level; (II) accepting defendant’s plea in case number 10
1 On 7 June 2013, defendant filed a second petition for writ of certiorari asking for an expanded review of issues defendant brought forth on appeal. Defendant’s second petition for writ of certiorari was denied by this Court on 23 October 2013. See Issues IV, V, and VI. -4- CRS 50050 (possession of a firearm by a felon); (III) finding
substantial similarity between defendant’s out-of-state
convictions and North Carolina felonies; (IV) finding
substantial basis for the convictions to which defendant pled
guilty; and (V) failing to determine whether defendant’s
admissions were made knowingly and voluntarily. Defendant also
argues that he received (VI) ineffective assistance of counsel.
At the outset, we acknowledge that prior to the hearing
date in this Court, defendant filed with this Court a motion to
withdraw his third issue presented on appeal challenging a
conclusion that defendant’s out-of-state convictions were
substantially similar to North Carolina offenses. We allowed
the motion and deem the arguments stricken from defendant’s
brief.
I
Defendant first argues that the trial court erred in
calculating his prior record level and sentencing him as a level
III felon with six prior record level points. Specifically,
defendant contends that the trial court erred by using the same
felony conviction both in its calculation of defendant’s prior
record level and in establishing defendant’s habitual felon -5- status. We agree and also note that the State concedes that
defendant’s argument is correct.
“[T]he trial court's assignment of a prior record level is
a conclusion of law, which we review de novo.” State v. Mack,
188 N.C. App. 365, 380, 656 S.E.2d 1, 12 (2008) (citation
omitted).
“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 . . . .” N.C. Gen. Stat. ' 15A-1340.14(a) (2013).
“In determining the prior record level, convictions used to
establish a person's status as an habitual felon shall not be
used.” N.C. Gen. Stat. ' 14-7.6 (2013).
Our General Statutes, section 14-7.1 defines habitual felon
as follows:
Any person who has been convicted of or pled guilty to three felony offenses . . . is declared to be an habitual felon and may be charged as a status offender pursuant to this Article. . . . The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony. -6- N.C. Gen. Stat. § 14-7.1 (2013).
On 4 October 2010, a Stokes County grand jury issued a
superseding indictment under file number 10 CRS 466 charging
defendant with attaining habitual felon status. The following
felony offenses were alleged in the indictment and used to
establish habitual felon status: (1) larceny by conversion, for
which defendant was convicted on 14 November 1986 in Michigan;
(2) escape from jail, for which defendant was convicted on 29
April 1988 in Carter County, Tennessee (case number 9101); and
(3) attempted false pretenses involving property valued over
$100.00, for which defendant was convicted on 16 August 1990.
On 8 December 2010, in accordance with his plea agreement,
defendant pled guilty to attaining habitual felon status. The
State provided judgments for each conviction alleged in the
superseding indictment (file number 10 CRS 466). In calculating
defendant’s prior record level, the trial court scored two prior
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-591 NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Stokes County Nos. 10 CRS 446, 50048-50, 51449 MELVIN CHARLES HARRELL
Appeal by defendant from judgment entered 8 December 2010
by Judge L. Todd Burke in Stokes County Superior Court. Heard
in the Court of Appeals 22 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General Phyllis A. Turner, for the State.
William B. Gibson for defendant-appellant.
BRYANT, Judge.
Because defendant’s felony conviction for escape from jail
was used both to establish his habitual felon status and to
calculate his prior record level in violation of General
Statutes section 14-7.6, we reverse the trial court’s judgment
and remand for resentencing. Because the trial court entered
judgment against defendant on a charge of possession of a -2- firearm by a felon, when no indictment had been entered as to
that charge, we vacate the trial court’s judgment as to that
charge.
On 5 April 2010, under file number 10 CRS 50048, a Stokes
County Grand Jury indicted defendant Melvin Charles Harrell on
the charge of extortion. Under file number 50049, defendant was
indicted on charges of breaking and entering a motor vehicle,
larceny, possession of stolen goods, and larceny of a firearm.
The grand jury also indicted defendant on attaining habitual
felon status; however, on 4 October 2010, a superseding
indictment on attaining habitual felon status was issued under
file number 10 CRS 446. Also, on 4 October 2010, under file
number 10 CRS 51449, the grand jury indicted defendant on the
charge of second-degree murder for the murder of eighty-four
year old Ida Plummer Stilley.
On 8 December 2010, defendant and the State entered into a
plea agreement wherein defendant agreed to plead guilty to
attaining habitual felon status under file number 10 CRS 446;
extortion under file number 10 CRS 50048; breaking and entering
of a motor vehicle, felony larceny, and larceny of a firearm
under file number 10 CRS 50049; possession of a firearm by a
felon under file number 10 CRS 50050; and voluntary -3- manslaughter, reduced from second-degree murder under file
number 10 CRS 51449.
The Honorable L. Todd Burke, Judge presiding, accepted
defendant’s guilty pleas. The trial court credited defendant
with six prior record level points, making him a level three
felon for sentencing purposes. The trial court entered a
consolidated judgment for all convictions and sentenced
defendant to a term of 104 to 134 months.
On 4 December 2012, defendant filed with this Court a pro
se petition for writ of certiorari for review of his sentence.
By order of this Court, defendant’s petition for writ of
certiorari “[was] allowed for the purpose of reviewing the
judgment entered 8 December 2010 . . . limited to those issues
for which Defendant-Petitioner has an appeal of right pursuant
to N.C. Gen. Stat. ' 15A-1444(a2).”1
__________________________________
On appeal, defendant raises the following issues: whether
the trial court erred in (I) calculating defendant’s prior
record level; (II) accepting defendant’s plea in case number 10
1 On 7 June 2013, defendant filed a second petition for writ of certiorari asking for an expanded review of issues defendant brought forth on appeal. Defendant’s second petition for writ of certiorari was denied by this Court on 23 October 2013. See Issues IV, V, and VI. -4- CRS 50050 (possession of a firearm by a felon); (III) finding
substantial similarity between defendant’s out-of-state
convictions and North Carolina felonies; (IV) finding
substantial basis for the convictions to which defendant pled
guilty; and (V) failing to determine whether defendant’s
admissions were made knowingly and voluntarily. Defendant also
argues that he received (VI) ineffective assistance of counsel.
At the outset, we acknowledge that prior to the hearing
date in this Court, defendant filed with this Court a motion to
withdraw his third issue presented on appeal challenging a
conclusion that defendant’s out-of-state convictions were
substantially similar to North Carolina offenses. We allowed
the motion and deem the arguments stricken from defendant’s
brief.
I
Defendant first argues that the trial court erred in
calculating his prior record level and sentencing him as a level
III felon with six prior record level points. Specifically,
defendant contends that the trial court erred by using the same
felony conviction both in its calculation of defendant’s prior
record level and in establishing defendant’s habitual felon -5- status. We agree and also note that the State concedes that
defendant’s argument is correct.
“[T]he trial court's assignment of a prior record level is
a conclusion of law, which we review de novo.” State v. Mack,
188 N.C. App. 365, 380, 656 S.E.2d 1, 12 (2008) (citation
omitted).
“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 . . . .” N.C. Gen. Stat. ' 15A-1340.14(a) (2013).
“In determining the prior record level, convictions used to
establish a person's status as an habitual felon shall not be
used.” N.C. Gen. Stat. ' 14-7.6 (2013).
Our General Statutes, section 14-7.1 defines habitual felon
as follows:
Any person who has been convicted of or pled guilty to three felony offenses . . . is declared to be an habitual felon and may be charged as a status offender pursuant to this Article. . . . The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony. -6- N.C. Gen. Stat. § 14-7.1 (2013).
On 4 October 2010, a Stokes County grand jury issued a
superseding indictment under file number 10 CRS 466 charging
defendant with attaining habitual felon status. The following
felony offenses were alleged in the indictment and used to
establish habitual felon status: (1) larceny by conversion, for
which defendant was convicted on 14 November 1986 in Michigan;
(2) escape from jail, for which defendant was convicted on 29
April 1988 in Carter County, Tennessee (case number 9101); and
(3) attempted false pretenses involving property valued over
$100.00, for which defendant was convicted on 16 August 1990.
On 8 December 2010, in accordance with his plea agreement,
defendant pled guilty to attaining habitual felon status. The
State provided judgments for each conviction alleged in the
superseding indictment (file number 10 CRS 466). In calculating
defendant’s prior record level, the trial court scored two prior
felony class I convictions and two prior misdemeanor class 1
convictions in calculating defendant’s six prior record level
points, giving him a prior felony record level of III. On
defendant’s prior convictions worksheet, two class I convictions
were listed: embezzlement, for which defendant was convicted on
3 September 1992; and escape, for which defendant was convicted -7- on 29 April 1988 in Carter County, Tennessee. The file number
listed with the escape offense is case number 9101.
Defendant’s 29 April 1988 conviction for escape from jail
in Carter County, Tennessee is listed both in establishing
defendant’s habitual felon status and defendant’s prior record
level. This is a violation of General Statutes, section ' 14-
7.6 (“In determining the prior record level, convictions used to
establish a person's status as an habitual felon shall not be
used.”). Accordingly, we reverse the trial court’s judgment and
remand for re-sentencing.
II
Defendant argues that the trial court erred in accepting
defendant’s plea of guilty and entering judgment against him on
the charge of possession of a firearm by a felon under case
number 10 CRS 50050. Defendant contends that no indictment was
entered against him and, therefore, the trial court lacked
jurisdiction to accept his plea. The State also concedes that
defendant’s conviction should be vacated. We agree.
“North Carolina law has long provided that there can be no
trial, conviction, or punishment for a crime without a formal
and sufficient accusation. In the absence of an accusation the
court acquires no jurisdiction whatsoever, and if it assumes -8- jurisdiction a trial and conviction are a nullity.” State v.
Partridge, 157 N.C. App. 568, 570, 579 S.E.2d 398, 399 (2003)
(citing to McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15,
17-18 (1966)) (citation, quotations, and brackets omitted).
“When the record shows a lack of jurisdiction in the lower
court, the appropriate action on the part of the appellate court
is to arrest judgment or vacate any order entered without
authority.” State v. Crawford, 167 N.C. App. 777, 779, 606
S.E.2d 375, 377 (2005) (citation and quotations omitted).
Pursuant to General Statutes, section 15A-641,
(a) Any indictment is a written accusation by a grand jury, filed with a superior court, charging a person with the commission of one or more criminal offenses.
(b) An information is a written accusation by a prosecutor, filed with a superior court, charging a person represented by counsel with the commission of one or more criminal offenses.
N.C. Gen. Stat. ' 15A-641(a), (b) (2013). On the record before
us there is no indication that a formal accusation was made
against defendant on the charge of possession of a firearm by a
felon. The record before us contains neither an indictment nor
a bill of information on the charge of possession of a firearm
by a felon. However, on 8 December 2010, the trial court
accepted defendant’s plea of guilty to this offense and included -9- the conviction for possession of a firearm by a felon on the 8
December 2010 consolidated judgment sentencing defendant to a
term of 104 to 134 months.
As there was no formal accusation against defendant of the
criminal offense possession of a firearm by a felon, the trial
court lacked jurisdiction to accept defendant’s guilty plea on
this charge, and we must vacate the judgment entered against
defendant on the charge of possession of a firearm by a felon
under file number 10 CRS 50050. See Crawford, 167 N.C. App. at
779, 606 S.E.2d at 377.
IV, V, & VI
In defendant’s arguments presented in sections IV, V, and
VI of his brief, defendant challenges whether the trial court
erred in accepting his guilty pleas for lack of a factual basis,
whether his admissions were made knowingly and voluntarily, and
whether he received ineffective assistance of counsel.
We note that pursuant to our 10 December 2012 order
defendant’s appeal was “limited to those issues for which
Defendant-Petitioner has an appeal of right pursuant to N.C.
Gen. Stat. ' 15A-1444(a2).”
Pursuant to North Carolina General Statutes, section 15A-
1444, -10- [a] defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court 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 G.S. 15A-1340.14 or the defendant's prior conviction level under G.S. 15A-1340.21;
(2) Contains a type of sentence disposition that is not authorized by G.S. 15A-1340.17 or G.S. 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 G.S. 15A- 1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level.
N.C. Gen. Stat. § 15A-1444(a2) (2013). Because defendant’s
arguments under heading IV through VI contain issues that are
outside the scope of the categories enumerated under section
15A-1444(a2), and because we have previously denied defendant’s
petition for writ of certiorari to review these arguments, they
will not be heard on appeal. Accordingly, we dismiss these
arguments.
Vacate possession of a firearm by a felon conviction;
reverse and remand for resentencing on remaining charges.
Judges McGEE and STROUD concur. -11- Report per Rule 30(e).