IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-774
Filed 6 August 2024
Guilford County, Nos. 19 CRS 24225, 67599, 67601, 67750–51, 67844
STATE OF NORTH CAROLINA
v.
QUANTEZ LASHAY THOMAS
Appeal by defendant from judgments entered 19 August 2022 by Judge R.
Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 15
May 2024.
Attorney General Joshua H. Stein, by Assistant Attorney General Benjamin T. Spangler, for the State.
Gilda C. Rodriguez for defendant-appellant.
ZACHARY, Judge.
Defendant Quantez Lashay Thomas appeals from judgments entered upon a
jury’s verdicts finding him guilty of possession of a stolen motor vehicle, misdemeanor
operation of a motor vehicle to elude arrest, two counts of breaking or entering a
motor vehicle, two counts of misdemeanor larceny, two counts of financial transaction
card theft, and attaining the status of a habitual felon. After careful review, we
conclude that Defendant received a fair trial, free from prejudicial error.
I. Background STATE V. THOMAS
Opinion of the Court
This case returns to this Court after Defendant received a new trial upon his
first appeal. See State v. Thomas (Thomas I), 281 N.C. App. 722, 868 S.E.2d 176, 2022
WL 453450 (unpublished). The full procedural history of Defendant’s first trial can
be found in this Court’s prior opinion in this matter. See id. at *1–*3. We recite here
only those background and procedural facts relevant to the issues presented in this
appeal.
The charges for which Defendant was tried arose from a series of vehicle-
related crimes in and around High Point. On 17 January 2019, Kari Rhodes noticed
that her Nissan Altima was missing from the parking lot of her apartment complex.
On 21 January 2019, Angela Marion was leaving a gym with her husband when she
noticed that the window on the passenger’s side of their car had been broken, and her
purse had been taken from the vehicle. Ms. Marion kept two credit cards in her wallet
within her purse. When she called to cancel those credit cards, she learned that they
had already been used, with hundreds of dollars of purchases having been charged to
each card.
Officer Kaylyn Stewart1 of the High Point Police Department (“HPPD”)
investigated the use of Ms. Marion’s credit cards at several businesses. Among them
was a Walmart on South Main Street in High Point. A Walmart loss-prevention
1 By the time Officer Stewart testified at the trial from which appeal is taken, she had been
promoted to the rank of Detective. For ease of reading and consistent with her rank at all times relevant to this appeal, we refer to her as “Officer Stewart” in this opinion.
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associate retrieved surveillance video footage from the evening of 21 January 2019—
when Ms. Marion’s card was used—and captured some still photographs from the
footage. Officer Stewart later testified about the appearance of the suspect in the
surveillance video footage, including, among other details, that the suspect was
wearing a camouflage jacket.
On 25 January 2019, Alondra McGill was cleaning an office with her aunt,
Teresa Perez. In her van, Ms. Perez had a pair of Nike sneakers that had been
delivered to her home for Ms. McGill. After the women finished cleaning, they went
to Ms. Perez’s van and noticed several items missing, including the Nike sneakers,
Ms. Perez’s purse, and some cleaning supplies. Ms. McGill would later testify that
she never saw the Nike sneakers, that she never gave anyone else permission to take
the shoes, and that Ms. Perez had never given anyone permission to enter her van.
HPPD officers investigating the breaking or entering and larceny from Ms.
Perez’s van obtained surveillance video footage showing Ms. Perez’s van in the
adjacent parking lot. After reviewing the footage, which showed a man entering Ms.
Perez’s van and removing items from it, the officers identified Defendant as a suspect.
On 6 February 2019, an HPPD officer recognized Defendant driving a Nissan
Altima. The officer initiated a traffic stop by activating the lights and siren, but
Defendant sped away in excess of the speed limit, and the officer did not pursue him.
The officer found the Altima later that night, apparently abandoned. Upon further
investigation, he confirmed by the VIN number that the Altima had been reported
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stolen by Ms. Rhodes’s husband. Officer Stewart responded to the scene of the
abandoned Altima and discovered, inter alia, a pair of Nike shoes and a camouflage
jacket inside the car. Once her car was recovered, Ms. Rhodes did not recall if
anything was missing from it, but she noticed several items inside that had not
previously been present in the car, including the coat and the shoes.
On 22 July 2019, a Guilford County grand jury returned true bills of
indictment, charging Defendant with the following offenses: three counts of obtaining
property by false pretenses; three counts of financial transaction card theft; two
counts of breaking or entering a motor vehicle; felony larceny; possession of a stolen
motor vehicle; felonious fleeing to elude arrest with a motor vehicle; three counts of
misdemeanor larceny; and attaining the status of habitual felon. On 11 February
2020, the matter came on for trial. Id. at *3. The jury found Defendant guilty of 13 of
the charged offenses, and the trial court consolidated the convictions into two
judgments.
In the first judgment, the trial court consolidated the felony larceny with
convictions for breaking or entering a motor vehicle, possession of a stolen motor
vehicle, and two counts of obtaining property by false pretenses; in this judgment, the
trial court sentenced Defendant as a prior record level III offender with habitual felon
status to a term of 67 to 93 months’ imprisonment in the custody of the North
Carolina Division of Adult Correction. In the second judgment, the court consolidated
the second breaking or entering a motor vehicle conviction with the third conviction
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of breaking or entering a motor vehicle, three counts of financial transaction card
theft, two counts of misdemeanor larceny, and misdemeanor fleeing to elude arrest
with a motor vehicle; in this judgment, the trial court sentenced Defendant as a prior
record level III offender with habitual felon status to a consecutive term of 26 to 44
months.2 Defendant appealed, and on 15 February 2022 this Court filed its opinion
in Thomas I, in which we ordered a new trial. Id. at *5.
On remand, the matter came on for a new trial on 15 August 2022. The State’s
evidence included, inter alia, surveillance video footage of Ms. Perez’s van during the
incident in question and testimony by Officer Stewart, in which she identified
Defendant as the individual in that footage. At the close of the State’s evidence, the
State took a voluntary dismissal of one count of misdemeanor larceny and two counts
of obtaining property by false pretenses. The trial court then granted Defendant’s
motion to dismiss in part, as to one count of financial transaction card theft, and
further ruled that the State could not proceed with the felony larceny charge but could
prosecute the offense as an additional count of misdemeanor larceny.
The jury generally found Defendant guilty as charged, except for finding him
guilty of misdemeanor rather than felony operation of a motor vehicle to elude arrest
and finding him not guilty of the count of misdemeanor larceny that had been initially
charged as a felony. The jury also found that Defendant had attained the status of a
2 The trial court made a clerical error in its judgments after the first trial, but in light of our
disposition, we did not reach that issue in Thomas I. Id. at *3 n.1.
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habitual felon.
On 19 August 2022, the trial court again consolidated the various convictions
into two judgments. In the first judgment, the trial court consolidated the possession
of a stolen motor vehicle conviction with one conviction for breaking or entering a
motor vehicle, and attaining habitual felon status, and sentenced Defendant as a
prior record level III offender to a term of 67 to 93 months’ imprisonment. In the
second judgment, which included the other conviction for breaking or entering a
motor vehicle among the remaining convictions, the trial court accepted the State’s
argument that all of the elements of the breaking or entering conviction were
included in one of Defendant’s prior offenses and added an additional point to
Defendant’s prior record level, raising him to a prior record level IV offender.
Accordingly, the trial court sentenced Defendant as a prior record level IV offender
with habitual felon status to a term of 30 to 48 months’ imprisonment.
Defendant gave notice of appeal in open court.
II. Discussion
Defendant contends that the trial court: (1) “erred when it denied [Defendant’s]
motion to dismiss the breaking [or] entering a motor vehicle and misdemeanor
larceny charges” relating to Ms. Perez “because the State presented insufficient
evidence of lack of consent”; (2) “committed plain error . . . when it allowed the lay
witness opinions of Officer Stewart as to what and whom surveillance videos and
photographs depicted”; and (3) “erred when it sentenced [Defendant] to a sentence
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more severe than the prior vacated sentence in violation of N.C. Gen. Stat. § 15A-
1335.”
A. Motion to Dismiss
Defendant first argues that the trial court erred by denying his motion to
dismiss the charges in 19 CRS 67750: one count each of breaking or entering a motor
vehicle and misdemeanor larceny, both relating to Ms. Perez’s vehicle. Defendant
alleges that the State “failed to present sufficient evidence of an essential element of
the charges”—namely, “lack of consent”—because Ms. Perez did not testify at trial.
We disagree.
1. Standard of Review
“We review de novo a trial court’s denial of a motion to dismiss a criminal
charge for insufficient evidence.” State v. Gibson, 277 N.C. App. 623, 624, 859 S.E.2d
253, 254 (2021). When conducting de novo review, this Court “consider[s] the matter
anew and freely substitut[es] our own judgment for that of the trial court.” State v.
Edgerton, 266 N.C. App. 521, 532, 832 S.E.2d 249, 257 (2019), disc. review denied,
375 N.C. 496, 847 S.E.2d 886 (2020).
“In reviewing a motion to dismiss based on insufficiency of the evidence, our
inquiry is whether there is substantial evidence (1) of each essential element of the
offense charged, and (2) of defendant’s being the perpetrator of such offense.” Id. at
532, 832 S.E.2d at 257–58 (cleaned up). “On review of the denial of a motion to
dismiss, this Court is concerned only about whether the evidence is sufficient for jury
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consideration, not about the weight of the evidence.” State v. Baskin, 190 N.C. App.
102, 108, 660 S.E.2d 566, 571 (cleaned up), disc. review denied, 362 N.C. 475, ___
S.E.2d ___ (2008).
The trial court reviews a defendant’s motion to dismiss “to determine whether
there is substantial evidence of each element of the charged offense. Substantial
evidence is that amount of relevant evidence necessary to persuade a rational juror
to accept a conclusion.” Gibson, 277 N.C. App. at 624, 859 S.E.2d at 254 (cleaned up).
“The evidence must be viewed in the light most favorable to the State, giving the
State the benefit of all reasonable inferences.” Id. at 624, 859 S.E.2d at 255 (cleaned
up). Additionally, “where there is substantial evidence of each element of the offense
charged, the fact that there is only a modicum of physical evidence, or inconsistencies
in the evidence, is for the jury’s consideration.” State v. Jackson, 162 N.C. App. 695,
697, 592 S.E.2d 575, 577 (2004).
“The test for sufficiency of the evidence is the same whether the evidence is
direct or circumstantial or both. Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence does not rule out every
hypothesis of innocence.” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455
(cleaned up), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
If the evidence presented is circumstantial, the court must consider whether a reasonable inference of [the] defendant’s guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of [the] defendant’s guilt may be drawn from the circumstances,
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then it is for the jury to decide whether the facts, taken singly or in combination, satisfy it beyond a reasonable doubt that the defendant is actually guilty.
Id. (emphasis omitted) (cleaned up).
2. Analysis
Regarding the denial his motion to dismiss the charges of breaking or entering
a motor vehicle and larceny, Defendant’s sole argument of error by the trial court is
that the State failed to present any evidence regarding the lack of Ms. Perez’s consent.
The lack of consent of the owner is an essential element of both offenses. The
elements of the offense of breaking or entering a motor vehicle are: “(1) . . . a breaking
or entering by the defendant; (2) without consent; (3) into a motor vehicle; (4)
containing goods, wares, freight, or anything of value; and (5) with the intent to
commit any felony or larceny therein.” Jackson, 162 N.C. App. at 698, 592 S.E.2d at
577 (emphasis omitted); see also N.C. Gen. Stat. § 14-56 (2023). “The essential
elements of larceny are that the defendant (1) took the property of another; (2) carried
it away; (3) without the owner’s consent; and (4) with the intent to deprive the owner
of his property permanently.” State v. Campbell, 373 N.C. 216, 221, 835 S.E.2d 844,
848 (2019) (cleaned up).
The crux of Defendant’s argument is that “there was no testimony from the
alleged owner of the vehicle regarding lack of consent.” As to the breaking or entering
charge, Defendant further asserts that “there was no evidence of locked doors, broken
windows, or any physical evidence of a forced entry that indicated a lack of consent
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to entry into the van.” As to the larceny charge, Defendant contends that “the State
failed to present sufficient evidence that the cleaning products were taken without
the owner’s consent.” Rather, Defendant alleges that the testimony of Ms. McGill was
“insufficient to establish the lack of consent element required for the larceny charge”
because she “was not the owner of the cleaning products and she was not in possession
of the cleaning products when they were alleged to have been taken.”
The State responds that there was sufficient circumstantial evidence from
which the jury could infer that Defendant lacked Ms. Perez’s consent to break or enter
into her car or to take her property. As stated above, “[c]ircumstantial evidence may
withstand a motion to dismiss and support a conviction even when the evidence does
not rule out every hypothesis of innocence.” Fritsch, 351 N.C. at 379, 526 S.E.2d at
455 (citation omitted). Indeed, this Court has previously recognized that in some
cases, the “very nature” of the circumstances “gives rise to an inference that the owner
of the vehicle did not consent to [the] defendant’s conduct” in breaking or entering it.
State v. Jacobs, 202 N.C. App. 350, 352, 688 S.E.2d 112, 113–14, disc. review denied,
364 N.C. 328, 701 S.E.2d 243 (2010).
The State suggests that “Defendant’s knowledge that he lack[ed] consent to
enter [Ms. Perez’s] vehicle can be inferred by his demeanor[,]” as exhibited in the
parking lot surveillance video footage of the incident. In the recording, Defendant
drives up to Ms. Perez’s van and turns off his headlights before he parks his vehicle
next to hers. Defendant exits his vehicle and walks in front of Ms. Perez’s van, looking
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into the nearby storefront, then casually walks back to the van. With his back to the
storefront, obscuring the view of his hand, Defendant surreptitiously tries to open the
van’s side door. Upon discovering that the van is unlocked, he takes another glance
toward the storefront as he opens the van door and leans inside the van. Defendant
quickly removes a box with the Nike logo from the van, again looking toward the
storefront and around the parking lot as he closes the van door and puts the Nike box
in the back seat of his own car. Defendant then returns to the van and, while
continually checking the storefront, opens the front passenger door, gets in the seat,
and closes the door. As Defendant rifles through the contents of the van, occasionally
putting things in his pockets, he rarely goes more than a second without looking up
at the storefront or around the parking lot. He exits the van, keeping his eyes on the
storefront as he checks that the passenger door is closed by pressing on it with his
hip. He then walks around to the trunk, which he opens, and makes several trips
removing items—including cleaning supplies—from the trunk and putting them into
the back seat of his vehicle. Finally, Defendant reenters his vehicle, backs out of the
parking spot, and only turns on his car’s headlights as he drives away.
Even though the State did not present direct evidence of lack of consent in the
form of testimony by Ms. Perez, this video, which was published to the jury several
times, constituted sufficient circumstantial evidence to survive Defendant’s motion
to dismiss. Specifically, when viewed in the light most favorable to the State, the
surveillance footage would permit “a reasonable inference of [D]efendant’s guilt [to]
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be drawn from the circumstances, [and] it [was thus] for the jury to decide whether
the facts, taken singly or in combination, satisf[ied] it beyond a reasonable doubt that
. . . [D]efendant is actually guilty.” Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (cleaned
up). Accordingly, Defendant’s argument is overruled.
B. Lay Opinion Testimony
Defendant next argues that the trial court committed plain error by “allow[ing]
the lay witness opinions of Officer Stewart as to what and whom surveillance videos
and photographs depicted.” Again, we disagree.
Defendant acknowledges that he did not object at trial to the admission of the
testimony that he now challenges on appeal, and so he specifically and distinctly
contends that the admission of this testimony amounted to plain error. See N.C.R.
App. P. 10(a)(4). To show plain error, “a defendant must demonstrate that a
fundamental error occurred at trial. To show that an error was fundamental, a
defendant must establish prejudice—that, after examination of the entire record, the
error had a probable impact on the jury’s finding that the defendant was guilty.” State
v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (cleaned up). “Moreover,
because plain error is to be applied cautiously and only in the exceptional case, the
error will often be one that seriously affects the fairness, integrity or public
reputation of judicial proceedings . . . .” Id. (cleaned up).
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Defendant asserts that the admission of testimony by Officer Stewart,
identifying Defendant as the individual in the Walmart surveillance video footage
and in still photographs derived from the footage, amounts to plain error. Under Rule
701 of the North Carolina Rules of Evidence, a non-expert witness’s “testimony in the
form of opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in issue.” N.C. Gen.
Stat. § 8C-1, Rule 701.
This Court has recognized that lay opinion testimony identifying a criminal
defendant in a photograph or videotape may be admissible “where such testimony is
based on the perceptions and knowledge of the witness, the testimony would be
helpful to the jury in the jury’s fact-finding function rather than invasive of that
function, and the helpfulness outweighs the possible prejudice to the defendant from
admission of the testimony.” State v. Buie, 194 N.C. App. 725, 730, 671 S.E.2d 351,
354 (citation omitted), disc. review denied, 363 N.C. 375, 679 S.E.2d 135 (2009).
Defendant cites Buie and State v. Belk as examples of a trial court admitting
testimony that oversteps this guidance. See id. at 732, 671 S.E.2d at 355 (the trial
court abused its discretion in admitting testimony by a law enforcement officer who
“offered his opinion, at length, about the events depicted in . . . surveillance tapes,
concluding that the video corroborated the [witness]’s testimony.”); see also State v.
Belk, 201 N.C. App. 412, 418, 689 S.E.2d 439, 443 (2009) (“[T]here was no basis for
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the trial court to conclude that the officer was more likely than the jury correctly to
identify [the d]efendant as the individual in the surveillance footage.”), disc. review
denied, 364 N.C. 129, 695 S.E.2d 761 (2010).
However, Defendant’s reliance upon Buie and Belk is misplaced, as neither
case involved plain-error review. Indeed, the Buie Court even concluded that the error
was harmless because there was “sufficient evidence to support the jury’s decision,
independent from the testimony” of the law enforcement officer. 194 N.C. App. at 734,
671 S.E.2d at 357. So too, here.
Even assuming, arguendo, that the trial court erred, “after examination of the
entire record,” Defendant has not shown that “the error had a probable impact on the
jury’s finding that . . . [D]efendant was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d
at 334 (cleaned up). In light of the “overwhelming” evidence—direct and
circumstantial—in this case, “[D]efendant cannot show that, absent the error, the
jury probably would have returned a different verdict.” Id. at 519, 723 S.E.2d at 335.
Moreover, Defendant has not shown that this is “the exceptional case” in which the
alleged error “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 518, 723 S.E.2d at 334 (cleaned up). Therefore, Defendant’s
argument is overruled.
C. Sentencing
Lastly, Defendant argues that the trial court erred by sentencing him in
violation of N.C. Gen. Stat. § 15A-1335 to a sentence more severe than the prior
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vacated sentence. We disagree.
This Court reviews de novo alleged statutory errors regarding sentencing
issues, as such errors “are questions of law[.]” State v. Allen, 249 N.C. App. 376, 379,
790 S.E.2d 588, 591 (2016) (citation omitted).
In its second consolidated judgment, the trial court sentenced Defendant—a
prior record level IV offender with habitual felon status—to a term of 30 to 48 months’
imprisonment. Because this sentence is more severe than the sentence in the second
consolidated judgment from Thomas I, Defendant alleges that the trial court violated
N.C. Gen. Stat. § 15A-1335. Defendant thus requests that this Court vacate the
second consolidated judgment and remand for resentencing.
Section 15A-1335 provides, in pertinent part:
When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.
N.C. Gen. Stat. § 15A-1335.
Defendant contends that “[t]he sole exception to N.C. Gen. Stat. § 15A-1335,
and the only circumstance in which a higher sentence will be allowed on resentencing,
is when a statutorily mandated sentence is required by the General Assembly.” State
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v. Cook, 225 N.C. App. 745, 747, 738 S.E.2d 773, 775 (citation omitted), disc. review
denied, 367 N.C. 212, 747 S.E.2d 249 (2013). In support of this proposition, Defendant
emphasizes that this Court has stated that “[a] trial court may add one point if all
the elements of the present offense are included in any prior offense.” State v. Posner,
277 N.C. App. 117, 122, 857 S.E.2d 870, 874 (2021) (emphasis added) (cleaned up);
accord N.C. Gen. Stat. § 15A-1340.14(b)(6). Defendant argues that the additional
point, which raised his prior record level to IV, was not “statutorily mandated” and
therefore his sentence does not fall within the “sole exception” to § 15A-1335. Cook,
225 N.C. App. at 747, 738 S.E.2d at 775 (citation omitted).
First, Defendant bases his argument solely on the proposition that the trial
court’s decision to add a point under § 15A-1340.14(b)(6) is discretionary. In his reply
brief, Defendant asserts that the State has failed to cite “a statute or case that states
the additional point is mandatory when applicable. In fact, the language of N.C. Gen.
Stat. § 15A-1340.14(b)(6), does not include ‘shall’ or ‘must.’ ” True though that
assertion may be, the statute likewise does not include any discretionary terms, such
as “may.” Rather, § 15A-1340.14(b)(6) merely states: “Points are assigned as follows:
. . . . If 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).
Contrary to Defendant’s assertion, a close reading of Posner reveals that this
Court used the word “may” in a discussion of whether the trial court erred when it
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used the same felony prior record level worksheet to determine the defendant’s prior
record level for five separate judgments, when only two of the judgments involved
offenses that shared elements with his prior offenses. Posner, 277 N.C. App. at 122,
857 S.E.2d at 874. In light of the plain language of the statute that provides a
straightforward directive regarding the addition of the “extra” point in question, the
passing use of the term “may” in Posner cannot reasonably read as Defendant
suggests. Indeed, nothing in the plain text of § 15A-1340.14(b)(6) suggests that the
assignment of an additional point is not mandatory if the trial court determines that
its conditions are satisfied. It would strain credulity to suggest that any of the other
subsections of § 15A-1340.14(b) providing for the assignment of points would be
discretionary, and Defendant cites no authority to suggest why subsection (6) would
be an exception.
Here, the trial court assessed an additional point to Defendant’s prior record
level, which raised his prior record level from III to IV. Notably, Defendant does not
challenge the merits of the addition of this point on appeal; he merely challenges
whether the point was “statutorily required” as part of his challenge to his sentence
under § 15A-1335. Yet, “where the trial court is required by statute to impose a
particular sentence . . . § 15A-1335 does not apply to prevent the imposition of a more
severe sentence.” State v. Powell, 231 N.C. App. 129, 133, 750 S.E.2d 899, 902 (2013)
(citation omitted).
The trial court sentenced Defendant to a term of 30 to 48 months’
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incarceration, at the bottom of the presumptive range under our sentencing
guidelines. See N.C. Gen. Stat. § 15A-1340.17(c)(4). In the absence of any mitigating
factors, the trial court was not statutorily authorized to impose any lesser sentence
than the sentence entered. Accordingly, N.C. Gen. Stat. § 15A-1335 “does not apply
to prevent the imposition of a more severe sentence.” Powell, 231 N.C. App. at 133,
750 S.E.2d at 902 (citation omitted). Defendant’s argument is overruled.
III. Conclusion
For the foregoing reasons, we conclude that Defendant received a fair trial, free
from prejudicial error.
NO ERROR.
Chief Judge DILLON and Judge ARROWOOD concur.
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