State v. Flint

APPEALS THE COURT OF IN [199 App. (2009)] thereby may perform- whatever agreement obtain

compromise ” compromise agreement.’ party] agreed to in the ance the [other (alterations origi- Howes, 136-37, at 493 S.E.2d at 797 2d, Compromise 38). Jur. and Settlement nal) (quoting Am. voluntarily required to this Thus, dismiss even if Hardin not release, action, fact not the claims he had chosen to did resurrect only ability preserved to enforce settlement but rather Hardin’s did agreement filing action rather than new lawsuit. Hardin this however, agreement, but not, enforcement of the settlement seek court, therefore, did err in sought avoid it. The trial not rather were the release and dis- determining that Hardin’s claims barred missing this action.

Conclusion motions, filed a response Hardin could have In to defendants’ agreement, but not to the settlement chose cross-motion enforce Instead, pursued that had been released do so. he the claims present suf- agreement. We that Hardin has failed settlement hold enforceability regarding raise an of fact ficient evidence to issue court, therefore, and its release. The trial agreement of the settlement agreement granting defendants’ motions to enforce did not err not, however, pre- ruling dismissing Hardin’s action. This does filing separate regarding action breach clude Hardin from agreement. enforcement the settlement

Affirmed. and BEASLEYconcur.

Judges McGEE FLINT NORTH LANCE DYLAN STATE OF CAROLINA No. COA08-1235 (Filed 2009) 15 September discovery not 1. Criminal Law— denial continuance — requested prosecution in a did abuse its discretion The trial court not robbery denying defendant’s motion and other discovery within a rea- having received continue based on IN COURT OF APPEALS sonable time trial. Defendant did not move that before discovery available, nothing make and was in record there necessary. showing that additional time was 2. Witnesses— name misstated on witness to list — allowed

testify by

The trial court did not abuse Karen allowing its discretion testify Holman to when her name had been “Karen misstated as by provided witness list record Holbrook” State. The any does not defense written agreement reveal motion or for the provide list; moreover, testimony State to a witness this witness’s purely tapes. to authenticate documents acceptance guilty plea 3. Criminal Law— and habitual acknowledgment felon jurisdiction accept plea

The trial had court a from defend- pending ant as to all of his charges and his status as an habit- was, ancillary ual felon habitual least, where the felon law at the multiple to the indictments. guilty pleas

4. Criminal Law— habitual felon acknowl- edgment choice —informed by

The trial did not accepting court err pleas and admission habitual felon status where defendant argued product that his was not his informed complied choice. The trial N.C.G.S. in 15A-1022(a) with determining pleas voluntarily that defendant’s were given product choice, of informed and defendant’s answers did not indicate misunderstanding. arraignment

5. Criminal Law— than all —less — not prejudicial prejudicial There was no error in not arraigning defendant on all charges contained in the where defendant did object and not claim properly did that he was not informed the charges. guilty pleas

6. Criminal Law— basis — insufficient — factual There guilty pleas was an insufficient factual basis for multiple felonies and an having admission to habitual obtained felon solely status. The record the trial indicates that court relied presented on a document the State which did not all address charges. IN THE OF COURT APPEALS Sentencing— prior erroneous—stipulation 7. record level —

The trial prior court erred sentencing defendant at a level VI prior record when he should have been sentenced at a V. stipulation level record While defendant’s as to record level is sufficient sentencing, evidence for as- court’s signment of record level ais conclusion of law reviewed de novo.

Judge part concurring dissenting part. JACKSON Appeal by from judgment entered 9 November 2007 Judge Hooks, D. Jr., County Superior Jack New Hanover Court. Heard in the Appeals May Court of 2009.

Attorney Roy Cooper, by Special Deputy General Attorney Philip General A. Telfer, the State.

Charlotte defendant-appellant. Gail Blake for HUNTER,JR., N., Judge. Robert Dylan appeals

Lance Flint (“defendant”) from a judgment entered jury after a convicted following subsequent defendant and a agreement pled which he sixty-eight and four mis- felonies demeanors. appeal issues, Defendant’s is founded including on five continue; denial a allowing testimony by of motion to wit- unlisted ness; proceeding to a following trial habitual felon con- status his victions; accepting proper evidentiary without a foun- improper sentencing. dation and herein, For the reasons discussed we no however, find error defendant’s convictions; trial and we vacate the judgment, set aside agreement, and opinion. remand for proceedings consistent with this

I. Background Prior to 14 November 2005 defendant had over one hundred convictions, which included both felonies and misdemeanors. From May 14 November to 22 was eighty- indicted for eight misdemeanors, two felonies and which occurred between 13 May April County. 2005 and 10 2006 New Hanover These indict- charges robbery, ments law breaking included for common and enter- ing vehicle, breaking a motor entering building, a into financial fraud, card obtaining property pretenses, forgery.of false instru- ments, uttering forged instruments, possession goods/prop- of stolen erty, identity fraud, felony larceny, larceny, financial misdemeanor APPEALS IN THE COURT OF was also eluding arrest. Defendant

injury personal property 28 November 2005. being an habitual felon on indicted for May 2006 indictments were three the 22 Included in of pretenses, charges two fel- false obtaining property financial fraud, charge of misdemeanor ony and one financial card 2006.At the 7 allegedly on 10March County fraud, all which occurred card Superior Hanover Criminal Session of New November 2007 aforementioned .Court, to be tried on the was scheduled May The other in- in the 22 2006 indictment. charges contained six at The Honorable for trial that time. were scheduled dictments Jr., presided Hooks, at trial. D. Jack continue, trial, arguing a motion to defendant made Before proceeding to because he did not comfortable trial” “he feel [did not] the sur- discovery 2007 and did not receive until October receive tapes week after that. The trial court approximately until veillance defendant’s motion. denied trial, presented evidence that Melvin Blackmon’s

At the State within hours were used stolen in March credit cards were Grocery Store and two Lowe’s purchase from a Harris Teeter items Upon being Wrightsville contacted Improvement Home Stores. Kathy Holman, Harris Department, manager Beach Police receipt copy card and the surveil- Teeter, produced the credit testimony Ms. authenticated lance video of the transaction. Holman’s eventually receipt copy of the surveillance video that the played However, objected being jury. to Ms. Holman “Kathy testify Holbrook” on allowed to because she identified list, therefore, opportunity he the State’s witness and did not have Kathy question jury knowledge of Holman. members about their objection Ms. and allowed The trial overruled defendant’s testify. Holman to Wrightsville Police Christopher Beach

Detective Schwartz Department during he retrieved sur- investigation, testified that his stores, receipts from and Lowe’s veillance videos and Harris Teeter jury. receipts were shown to the Defendant and these videos and presented right remain silent and no evidence. On exercised felony jury on two 9 November convicted defendant obtaining property by pretenses and one count each of counts of false felony jury acquitted financial card fraud. The and misdemeanor May remaining charges in the defendant on the two contained 2006 indictment.

IN THE COURT OF APPEALS Following verdict, jury temporar- court excused the ily to address an for attaining indictment the status of an habitual briéfly felon. Counsel conferred with defendant and announced trial agreed court that plea agreement to enter a admitting his habitual felon pleading multiple pend- status and charges ing against County. him New Hanover had ar- Defendant been raigned on pending charges, some of the them, but not all of which sixty-eight felony included some counts. Defendant was then arraigned on forty-eight charges including having obtained the status of an habitual arraigned, felon. After defendant was pro- the court transcript plea, ceeded to take the consisting of pages of twelve and listing sixty-eight and plus felonies two misdemeanors the habitual charge.1 prosecutor felon The then submitted written factual basis plea listing forty-seven for the felonies to stipulated. which defendant felony breaking listed included five entering and a motor offenses, robbery vehicle one offense, common law breaking three offenses, and entering offense, eight one financial card fraud forgery offenses, of twenty-nine instruments and obtaining property false pretenses offenses. Absent from the document, factual basis but transcript included in of plea, were uttering forged three instru- offenses, possession ment goods offense, one of stolen one financial identity offense, card forgery offenses, fraud fifteen and one arrest eluding offense. accepting plea,

After the trial court reviewed de- prior prior fendant’s record worksheet. The record worksheet sub- judge mitted to the trial eight showed that defendant had H or I Class points carrying felonies two each and three misdemeanor convictions point one carrying giving each him a points. total nineteen attorney signed stipulation Defendant’s agreement prior on the worksheet, record open defendant himself stated in court that he prior had reviewed worksheet. Based on the record work- pursuant plea agreement, sheet and to the defendant’s convictions consolidated, were and he was sentenced at record Department level VI to an active term the of Corrections of 135 to 171 months. plea actually seventy-four 1. The total lists a felonies and three However, offenses, breaking entering

misdemeanors. three a motor vehicle forgery larceny, instrument and misdemeanor contained in 05CRS65882 are through stating 4/25/07,” offenses, marked a line with and notation “VD and four two breaking entering obtaining property by pretense and a motor and vehicle one false forgery, respectively duplicates one contained 06CRS554865 and 06CRS54787 are already transcript plea. felonies on the listed Therefore the total correct number sixty-eight. on felonies listed the is APPEALS IN THE COURT OF N.C.

II. Issues denying his motion (1) erred argues the trial court Defendant the testify, (3) proceeding to allowing Ms. Holman to continue, (2) to plea to trial, accepting (4) after felon indictment habitual felon, (5) of an habitual attaining the status multiple felonies VI. sentencing prior at a record level him to III. Motion Continue ^[1] denying his motion to Defendant contends that the continue because trial court abused its he did not receive discretion discovery disagree. trial. We prior to his at a reasonable time to continue a trial court’s denial of motion reviews This Court Taylor, 354 State v. pursuant of discretion standard. to an abuse denied, 934, 152 141, 535 U.S. 28, 33, (2001), cert. 550 S.E.2d its when the order A trial court abuses discretion (2002). L. Ed. 2d 221 arbitrary that the when order is so manifestly unsupported or the is product the of a reasoned decision. not have been decision could Hennis, 285 372 S.E.2d discovery materials argues that he did not receive the Defendant trial, pursuant N.C. videotapes in a reasonable time pertinent part states in that 15A-903(a)(l). The statute Gen. Stat. § defendant, the must order (a) [u]pon motion of the the court State to: complete all the files of

(1) available to the defendant [m]ake prosecutorial agencies involved law enforcement and prose- investigation .of the crimes committed or cution of defendant. 15A-903(a)(l) (2007).

N.C. Gen. Stat. argued motion to continue before trial Defendant for his following manner: may please it Honor, Your

MR. HOSFORD Counsel”]: [“Defense attention bring like me to Court’s Court, Mr.Flint would discovery case October relating this that we received date, is provided it to him. He met with Mr. Flint after that 2007.1 point with at this in time going with forward trial not comfortable with amount of notice. that they provided videotapes intend to intro-

The State that, I with that, after met approximately week after duce after IN THE OF COURT APPEALS 715 (2009)] 709 N.C.

[199 Flint, Mr. which is some 18 after he arrested. And months was he' that, would like the Court to know and on his behalf he wants me it, to make a motion to continue he doesn’t feel comfortable trial. proceeding at discretion,

THE In COURT: the Court’s that motion is denied. 15A-903(a)requires § N.C. Gen. Stat. that the make a defendant motion in order for the court make to order State to discov- ery available to defendant. In sub judice, the case defendant’s trial began discovery on 7 November and he did not receive ma- videotapes terials until 17 October 2007 and not receive did until statute, a week after. Under the cited must make defendant provide discovery prior motion in for the obligation order State’s to to appeal trial. Neither the record nor on contain a agreement provide discovery. motion or written to Without such record, documentation in the has not that the shown State any obligation provide discovery was under pursuant to to N.C. Gen. 15A-903(a)(l). Stat. §

Furthermore, there is no in the that basis record to show addi necessary preparation tional time was for the of a defense. “‘To prepare demonstrate that the time was allowed inade [to trial] quate, the must his show “how case would have been bet prepared ter granted had the he was continuance been or that mate ’ ” rially prejudiced Williams, the denial of his motion.” 501, 540-41, denied, (2002), 565 S.E.2d cert. 537 U.S. 1125, 154 L. 2d 808 (2003) (citations omitted). Ed. There is no abuse provide any of discretion to where “defendant failed ‘form of detailed ” proof indicating delay.’ sufficient grounds Beck, for further State v. 750, 756-57, (1997) (citation omitted). N.C. 487 S.E.2d In this, given requesting the sole reason counsel for the con defense pro tinuance was that defendant himself did not “feel comfortable” ceeding trial, therefore, directed to seek a he had his counsel Lacking argument presented continuance. or evidence to the trial prepare court that defendant would have needed additional time to materially prejudiced by he was denial defense or that of his continue, motion to did not discretion in abuse its denying the motion. Testimony

IV. Ms. Holman’s ^[2] Defendant argues that the trial court erred in allowing Karen Holman, testify employee, a Harris Teeter because her name had Holbrook,” provided been “Karen on the misstated as list of witnesses OF APPEALS IN COURT testify Ms. allowing Holman State. Defendant contends opportu- he afforded the was not an abuse of discretion because jury panel knowledge its of her. nity question about 15A-903(a)(3), Gen. Stat. argument Defendant bases his pertinent part that states, which in defendant, order the [u]pon motion the the court must

(a) State to: jury selection, defendant, the beginning the at

(3) [g]ive whom list of names of all other witnesses the written the reasonably expects during to the trial. call goes on 15A-903(a)(3) Section 15A-903(a)(3)(2007). § N.C. Gen. Stat. “ may justice, in [additionally, that in the interest of the to state any testify.” to Id. permit undisclosed witness its discretion judice, the record does not reveal defense In the case sub provide list, witness agreement or for the State to motion written sup- witness that was does the record contain the State’s list nor provided However, the indicates that posedly to defendant. testify object being counsel did to Ms. Holman allowed to defense objection. discretion, The judge, in had overruled that part transcript is as pertinent of the follows: objected testimony And I also to [DEFENSE COUNSEL]: list, Holman, Ms. as was not listed on the witness she by objection. the Court overruled the There reference discovery. prosecution Ms. wás listed I’ll that Holman as know Holman was listed Karen Holbrook let Court that Ms. discovery,

at Teeter so Ms. Holman’s—for first Harris testified, objected we to time as she her Ms. Holman—and testimony. you

THE what further referenced was COURT:And I believe jury you inquiry opportunity hadn’t had to make opposed Holbrook; Ms. is that right? Ms. Holman as Yes. [DEFENSECOUNSEL]: will that those That’s fine. record reflect COURT:

objections in its over- posed, were and that the Court discretion ruled the same.

IN THE COURT OF APPEALS There are two issues with argument that the trial court abused its allowing testify. discretion Ms. First, Holman to it is not clear from the record that defendant moved under N.C. Gen. compel Stat. 15A-903(a)(3) produce § the State to a list wit- reasonably expected nesses that it during call the trial. Section 15A-903(a)(3) is clear that a motion required the defendant is the statute to be in However, assuming arguendo effect. that a motion inwas fact made counsel, defense N.C. Gen. Stat. 15A-903(a)(3), § nevertheless, provides justice, that “in the may interest of the court permit any its discretion testify.” undisclosed witness to N.C. Gen. Stat. 15A-903(a)(3)(emphasis added).

Second, testimony only Ms. Holman’s in this case was to authen- receipt ticate the day and surveillance video taken the of the al- leged crime at the explained Harris Teeter. Ms. Holman that she received a call from Detective of Wrightsville Schwartz Police Department asking if her she had video to show who had made a transaction with Melvin Blackmon’s credit morning card on the of 10 March explained 2006. Ms. Holman then Harris Teeter’s surveillance system jury, system to the testified working properly was on morning of 10 2006, explained March what she did with the copy of the surveillance video giving before it to Detective Schwartz. testimony purely Because Ms. Holman’s was to authenticate docu- tapes, ments and the trial court acting was within its discretion to testimony. allow her Proceeding

V. to Habitual Felon Indictment ^[3] Defendant argues that the trial court committed error by: (1) pro ceeding part trial; to the habitual felon (2) accepting his guilty plea multiple felonies, to because the habitual felon indictment ancillary charges was not to the tried, on which he was the trial court jurisdiction proceed lacked it, voluntary. to was not disagree. We

In Carolina, North ancillary habitual felon indictment be must felony to a substantive and cannot Allen, stand on its own. State v. 431, 456, 292 N.C. (1977). judice, S.E.2d In the case sub the habitual felon indictment was returned on 28 November 2005. However, defendant was not obtaining prop- indicted on for erty by pretenses May false and financial card fraud until 22 2006. Furthermore, these crimes did not even occur until 10 March over three months after the habitual felon indictment was returned. may This Court has stated that an habitual felon indictment be re- OF APPEALS THE COURT IN felony simultaneously with a substantive after, or before, turned 671, 675, 577 S.E.2d Blakney, indictment. It is dif 252, 582 S.E.2d denied, 357 N.C. 390, disc. review attach as ancil could felon indictment habitual to see how the ficult cor Therefore, defendant yet occurred. had not lary felonies that ancillary to was not indictment felon rectly that the habitual contends finan pretenses and property false obtaining the indictments 7 November of at the was convicted fraud, which defendant card cial County Superior Court. of New Hanover Session 2007 Criminal indictments valid substantive that without contends Defendant to, trial court lacked attach indictment to habitual felon for the proceeding regarding with a bifurcated jurisdiction proceed pro- court never However, (1) the trial status. habitual plea, due to defendant’s phase of the trial habitual felon to the ceeded felon which the habitual felonies to were substantive (2) there ancillary. indictment jury for its determi- submitted to the

First, court never After defend- indictment. habitual felon 28 November 2005 nation the property felony obtaining counts guilty of two ant was found of finan- count and one misdemeanor pretenses, and one false follows: fraud, reads as cial card arraigned point been at this COURT: Has [defendant] file? habitual felon status in the allegations contained my understanding Honor, Your it’s DAVID MR. [Prosecutor]: charge, and the State is arraigned on that previously he has been ready proceed at this time. Honor, I don’t know if he’s been Your DEFENSE COUNSEL: charge. actually, on that arraigned, time. arraign him at this THE COURT: We can confer with May I a moment to have [PROSECUTOR]: counsel? conferred.) (Counsel sure can.

THE COURT: You your with client? you want a moment Do THE COURT: Yes,your Honor. COUNSEL]: [DEFENSE three minutes’ at ease for about We’ll stand THE COURT: time. 719'

IN THE OF APPEALS COURT “going was recess, defense indicated that defendant After the counsel plea.” Therefore, due to defendant’s dispose to all his cases with a of phase trial did occur. plea, habitual felon of the not plea jurisdiction accept to Second, the trial court had ancillary prior pending was to because the habitual felon indictment was habitual felon indictment returned substantive indictments. The felon 2005. weeks to the habitual indict- on November Two ment, 2005, 14 November defendant indicted: 05CRS57605 on May 2005; in breaking entering for and a motor vehicle on 13 fraud, instrument, forgery card of an and 05CRS58997for.financial of an forged forgery a instrument on 9 June instru- uttering 2005; on uttering ment a instrument 10 June forged Additionally, false property pretenses. for obtaining 05CRS59853 on 12 was indicted in 05CRS58994for December robbery Therefore, on 2005. the habitual felon common law 9 June ancillary multiple was, least, at the to these indict- indictment jurisdiction proper accept trial a ments, meaning the court had plea pending to his charges as all his status from defendant as an felon. habitual

[4] Finally, argues that because he could not have been jury habitual which the con sentenced as an felon for subsequent him, plea and admission to the status of victed his his and there product were not informed choice habitual felon be plea guilty valid, it must made fore invalid. In order a be voluntarily. Allen, App. 665, 669, knowingly and 15A-1022(a) Stat. S.E.2d Defendant cites Gen. argument. governs which grounds 15A-1022(a), for this Section superior judge accepting duties court when a or no of a pertinent part: contest, provides in accept may or no superior judge not [A] him addressing per- from the defendant without first

contest sonally and: and that Informing right him to remain silent

(1) that he has may against him; he be used statement makes charge; Determining that he understands nature (2) right plead guilty; Informing him that he has a (3) right he to trial Informing him waives his (4) by the witnesses by jury right and his to be confronted him; against IN THE COURT OF APPEALS defendant, represented by

(5) Determining counsel, that the if is representation; with satisfied

(6) Informing possible him of the maximum sentence on the charge for the class of offense for being which the defendant is sentenced, including possible sentences, from consecutive mandatory sentence, any, and of the minimum charge[.] if on the 15A-1022(a) (2007). N.C. Gen. Stat. § Because N.C.G.S. 15A-1022 § only prior relates judge “accept[ing] plea the duties of a trial only guilty,” we at relating look the record to the court’s examina- tion of approval pleas to its of his guilty. tendered Wynn, See State v. 180 S.E.2d 135 judice, In judge complied the case sub with N.C. Gen. 15A-1022(a) personally. Stat. addressing pertinent The part transcript includes: you

THE COURT: If will have sworn to the tran- [defendant] script, please.

(The oath was administered to the defendant clerk.) Dylan THE COURT: You are . . . Flint, age Lance 35? Yes, THE DEFENDANT: sir.

THE COURT: You are able to hear and understand me? Yes, THE DEFENDANT: sir. you

THE you COURT: Do understand that right have the silent, you say remain anything you? and that can against be used Yes, THE DEFENDANT: sir. you completed

THE COURT: GED, Have read and write high the left of a graduate? school [sic] Yes, THE DEFENDANT: sir. you

THE COURT:Are now under the alcohol, influence of drugs, narcotics, medicines, or intoxicating impair- other or ing substances?

THE No, DEFENDANT: sir. you reflects that last used or COURT: years consumed such a ago; substance two is that correct? OF APPEALS THE COURT

IN (2009)] [199 Yes, sir. THE DEFENDANT: you explained to charges been Have the

THE COURT: charges and of these you the nature counsel, and understand do charge? every of each element Yes, sir.

THE DEFENDANT: pos- attorney your discussed you arid THE COURT: Have any, charges? are for these defenses, if there sible Yes, DEFENDANT: sir. THE you legal with his services? Are satisfied

THE COURT: Yes, sir. THE DEFENDANT: you right to have the you understand that

THE COURT: Do a trial to cross- by jury, and at such be tried plead you? against the witnesses examine Yes, sir.

THE DEFENDANT: by pleading guilty you that And do understand THE COURT: to a rights valuable constitutional you up and other give these matters? jury trial, including sentencing Yes, sir. DEFENDANT: THE You’rea U.S. citizen?

THE COURT: Yes, sir. DEFENDANT: THE you entering are you understand

THE COURT: Do of a ha- to the status 2005-CRS-20449 pleas guilty in the file you punishment? Do un- C a Class felon, which carries bitual that? derstand Yes, sir. DEFENDANT:

THE possible punishment maximum that the THE COURT: And as—as be as much would for that offense you could receive 261 months? Yes, sir.

THE DEFENDANT: varying otherwise, in the Now, right, sir. All THE COURT: and the you called out have heard numbers which file you un- out, do called Prosecutor that Madam within each file IN THE COURT OF APPEALS you entering pleas derstand that are as to each of those charges? individual Yes,

THE DEFENDANT: sir. They THE transcript, you COURT: are written on this opportunity those, have had the to see and, and read each of fact, so; did is that correct? Yes,

THE DEFENDANT: sir. you All right. COURT: Do understand that for these you offenses, possible punishment face a total of as much as 19,314 plus days? months Yes,

THE DEFENDANT: sir. prosecutor your THE COURT: And lawyer have plea advised me arrangement you that under this will receive maximum sentence of 135 months to 171 months. In other they’re words, all going consolidated, you to be would be sentenced as a habitual felon under class C to the minimum presumptive from range your appropriate you class. Do understand that? Yes,

THE DEFENDANT: I sir. do. personally THE COURT: accept Do now you plea this arrangement.

THE DEFENDANT:Ido.

THE COURT:And being your is this correct as full arrangement? Yes,

THE DEFENDANT: sir. THE COURT: Other than arrangement, anyone this has promised you anything you any way or threatened you to cause pleas against your to enter these wishes? No,

THE DEFENDANT: sir. you your THE COURT: Do pleas will, enter these own free fully you’re understanding what doing? Yes, sir. I do. DEFENDANT:

. APPEALS THE COURT OF IN FLINT that the court informed defendant It is clear from the record pos- every 15A-1022(a), Stat. the maximum right listed in N.C. Gen. § sentence, understood the and determined defendant sible responses to his trial counsel. Defendant’s was satisfied with not mis- accepted guilty pleas his did indicate court before it the understanding. complied with Gen. Stat. the trial court Because voluntarily pleas were 15A-1022(a) determining defendant’s product choice, and defendant’s answers of informed given and inquiry any misunderstanding requiring further not indicate did accepting court, court did not err the trial pleas. Accepting Agreement VI. Plea ^[5] Defendant asserts that guilty pleas multiple felonies and his are in of an habitual felon having attained status admission agree. adequate an factual basis. We because the lacks valid ways. pleas validity in two challenges the of his Defendant for the trial court to do a First, that the failure of argues pre every charge error. As this issue was arraignment on mal 10(a) of the required of error Rule assignment served N.C. R. Procedure, it is to be waived. See Appellate deemed Rules of provided herein, the (“Except P. Rule as otherwise 10(a) (2009> those is a consideration of scope appeal of review confined to appeal[.]”); in on see also of set out the record assignments error Transp. Co., 362 N.C. Co., LLC v. White Oak Dogwood Mgmt. Dev. & party’s to 361, “a failure 191, 195-96, (2008) (holding 657 364 S.E.2d appellate ordinarily justifies the preserve for review properly an issue appeal”). to consider the issue appellate court’s refusal error properly assigned Assuming arguendo that charges on all contained issue, arraign court’s failure to this “ arraignment a formal plea is ‘Thefailure to conduct in the not error. arraignment is purpose The is not reversible error. itself or read a and have a defendant to enter allow prejudicial error failure so is not and the to do summarized him properly in objects he is not and states that unless defendant ” 679, 668, 622 Artis, 174 N.C. charges.’ formed disc, denied, 360 omitted), review 204, (citations 211 (2005) S.E.2d object defendant did not (2006). 630 S.E.2d 188 Because properly informed of he was not did he claim that nor preju not plea, did commit the trial court charges contained in dicial error. IN THE COURT OF APPEALS

[6] Second, argues that there was an insufficient factual plea. Preliminarily, basis for the appeal we note that defendant has no right Bolinger, as to this issue. See 596, 601, State v. 320 N.C. (1987) (“[A] S.E.2d defendant is not entitled as a matter of right appellate review of his improp contention that the trial court erly accepted guilty plea.”) Defendant stated his brief that “in the event this Court determines that does not have an [defendant] appeal right as of requests from his . . . [defendant] accept petition this Court this as a Accordingly, we certiorari].]” treat appeal petition defendant’s as a for writ of certiorari on this issue, which Therefore, we now allow. we address the merits of argument. defendant’s

Essentially, question presented by defendant is whether the complied trial court with N.C. Gen. Stat. 15A-1022(c) § determin- ing there was a factual basis for guilty plea. Guilty pleas must prescribed be substantiated in fact as the statute at issue in this case: judge may accept plea or no contest without

first determining that there plea. is factual basis for the This may determination upon be based information including but not limited to:

(1) A prosecutor. statement of the facts (2) A written statement of the defendant.

(3) An presentence examination of report. (4) testimony, may Sworn which include hearsay. reliable (5) A statement of facts the defense counsel.

N.C. Gen. Stat. 15A-1022(c).

The five sources listed in the exclusive, statute are not may therefore trial judge properly consider information “[t]he brought to his attention determining whether there is a factual basis for a guiltyf.]” Dickens, State v. 76, 79, S.E.2d 185-86 Nonetheless, such information “must appear record, in the appellate so that an court can determine whether the properly accepted.” has been Sinclair, State v. 301 193, 198, 270 S.E.2d 421 (1980). Further, in enumerating sources, these five the statute “contemplate^] that some substan- independent tive material appear of the itself of record which APPEALS OF

IN THE COURT 199, 270 S.E.2d is, fact, Id. at guilty.” that defendant tends to show 421-22. at provides evi- court insufficient

Here, before the trial the record proper basis. plea had a factual guilty each to demonstrate that dence by defendant nor statement statement was neither a written There Additionally, was there in the record. facts defense counsel of the basis, was factual nor testimony regard with to the given no sworn presentence report an examination of indication that there that the trial Therefore, the record indicates was conducted. presented the State solely basis document on the factual relied plea. The State’s basis of defendant’s determining the factual felony charges. How- document addresses written factual basis plus the habit- ever, transcript of addresses that the trial court indicates indictment. ual felon basis for as the factual factual basis document relied on the State’s pertinent part is as follows: plea. The defendant’s entire support you that there are facts to agree Do THE COURT: summary factual basis a written of the your pleas, and consent to matters? regarding these Yes, DEFENDANT: sir. finding of the record reflect the Let’s have the

THE COURT: which he is the matters to basis for each of matter of the factual particularly the charges and the substantive pleading guilty, both in file 2005-20449. felon contained of a habitual status plead- Clerk, Flint, this date . . . Madam Lance THE COURT: on that the items listed transcript to each of pursuant to ing guilty entering a motor breaking and is, transcript, that six counts breaking and robbery, three counts vehicle, common law one offense, eight counts fraud buildings, one financial card entering property obtaining instruments, counts of forgeries say specifically just I did not earlier pretenses; and in case false of a habitual felon. class C status to the so, in file 2005-CRS-20449 guilty. found above, is As to each [defendant] “pleading was stated that defendant trial court Although the on that tran- the items listed transcript to each of pursuant solely relying the trial court is, nevertheless, clear that script,” it IN THE COURT OF APPEALS (2009)] [199 plea during pro- on the State’s factual basis document defendant’s plea. only vide the factual for trial basis the entire court listed the felonies included on the State’s factual basis document when announcing plea. A defendant’s second indication is the trial court’s pleading guilty mistake that defendant was to six breaking enter- only ing charges pleading guilty a motor vehicle when he was to five particular charges. of document, those On the State’s factual basis the heading indicated “Six Break and Enter a Motor Vehicle Offenses.” However, breaking entering charges one of the a motor vehicle is lines, indicating actually marked out with several that defendant was only pleading charges. to five of those This mistake shows that the solely trial relying court was on the State’s factual basis document as plea. Finally, the during plea factual basis for the entire the the trial court never mentioned name or case number other that except was not contained in the factual basis document for the habit- charge. ual felon

Furthermore, while it is true that the trial court had before it the transcript plea, which listed all of the felonies defendant was pleading guilty to, transcript provide itself cannot the factual plea Sinclair, basis for the in and of itself. 301 N.C. at 270 S.E.2d at 421 (holding was insufficient for the trial court to basis, determine the reasoning plea existence of a factual “[i]f itself basis, constituted its own factual requiring the statute a factual support basis to meaningless”). would be argues The State that the indictments for each of provide twenty-one the factual basis for the felonies found in the factual basis document. While it is true that the indictments are con- tained in appeal, they were, the record on it is not if fact, clear before during plea. court, the trial court defendant’s The trial in its determination, factual basis never mentions the indictments only Therefore, refers to the State’s factual basis document. accepting court erred in guilty because there was nothing independent judicial before the court to an support determi- twenty-one nation factual basis for of the felonies listed on the tran- script plea.

Despite forty-seven the fact that of the felonies that defendant pled supported independent to are basis, factual we must, nevertheless, remand this matter to the trial court. In State Stonestreet, v. (1955), Supreme 89 S.E.2d 734 our Court stated:

IN THE COURT OF APPEALS FLINT two Where or more indictments counts or are consolidated purpose judgment, single judgment pronounced and a is thereon, though even or on one conviction is support judgment sufficient to and the trial is free thereon error, from new indictment(s) award of a trial on the other or requires count(s) proper judg- that the cause be for remanded ment on the valid count. 31,

Id. at 89 S.E.2d at 737. Thus, we vacate the judgment trial court’s and remand to the trial requested plea court. Because defendant has that he be relieved of his agreement, we also set agreement aside defendant’s due to fail- provide ure the State to a factual foundation. This case is re- may manded to the trial court where defendant “withdraw proceed attempt to trial . . on the criminal . [or] negotiate Wall, 671, 676, another State v. 348 N.C. agreement].]” 585, 502 S.E.2d 588 (1998).

VII. Prior Record Level ^[7] Defendant asserts that the trial court erred in sentencing defend prior ant at a record level VI because he should have been sentenced prior at level V. agree. record We recognizes specifically

The State that the crimes listed in the total points worksheet, record do not on the but nevertheless argues rely trial stipu- that the court was entitled on defendant’s unpersuasive.. argument lation. Wefind this “Although stipulation prior defendant’s as to record level is suffi- cient evidence for at that . sentencing assign- level. . the trial court’s improper law, ment of level was an conclusion of [VI] which we Fraley, App. 683, 691, review de novo.”State v. 182 643 Additionally, (2007). “[stipulations questions S.E.2d 44 as to generally upon law are held binding invalid and not ineffective] courts, appellate.” Prevette, either trial or State v. 39 N.C. disc, 470, 682, 683, appeal dismissed, denied, 250 S.E.2d review S.E.2d 254 38 prior record worksheet submitted showed eight felonies, that defendant had H or I Class which carried two points convictions, each three misdemeanor which carried one point each, points. a giving defendant total of Defendant nineteen prior in calculating contends the trial court erred record level OF APPEALS IN THE COURT FLINT (1) driving while license revoked points following convictions: for the marijuana 2002, January 1994, trafficking on 28 June (2) on 13 10 November 2005 an habitual felon on (3) being the status of County. Brunswick conviction on

First, driving while license revoked rec- January been included should not have provides mis- 15A-1340.14(b)(5) that each ord Section worksheet. point. Stat. is worth one N.C. Gen. demeanor conviction subsection, mis- However, purposes of the 15A-1340.14(b)(5). § mis- “any Al 1 nontraffic is Class and Class demeanor defined impaired driving (G.S. offense, impaired driving 20-138.1), demeanor and misdemeanor death (G.S. 20-138.2), commercial vehicle traf- (G.S. not other misdemeanor 20-141.4(a2)), vehicle but N.C.G.S. Chapter fic of the General Statutes.” offense under driving is a Being that while license revoked 15A-1340.14(b)(5). offense, which in Section misdemeanor traffic is included in it a conviction that can be used determin- 15A-1340.14(b)(5), is not only ing prior Defendant’s other conviction a defendant’s record level. insurance, which January operating 1994 is a vehicle with no 13 prior a level. determining also cannot be used in defendant’s record for Therefore, including point error one the trial court committed prior driving revoked on his defendant’s while license conviction record worksheet. marijuana

Second, points trafficking in con- two for defendant’s prior 28 have been included on the viction on June 2002 should not provides pertinent part Section 14-7.6 in that record worksheet. “[i]n level, a determining prior convictions used to establish the record person’s an shall be Stat. status as habitual felon not used.” Gen. alleged indictment that (2007). § 14-7.6 28 November 2005 felon listed the 28 June 2002 conviction defendant be habitual marijuana for in of used to indict trafficking one the offenses marijuana Therefore, trafficking in defendant as an habitual felon. the prior not have on the record work- conviction should been included However, felony points. giving as a Class H defendant two sheet charge pos- 28 2002 for does have a countable from June defendant Therefore, paraphernalia, drug of a Class 1 misdemeanor. session only point his defendant have received one for misdemeanor should felony 2002, points not a Class H conviction from 28 June two for that was used in the habitual felon indictment.

Finally, including points on the assigns defendant error two from prior for habitual felon conviction record worksheet IN THE COURT OF APPEALS 729 FLINT County Brunswick on 10 November 2005. The habitual felon convic- page prior tion is handwritten on the bottom the last of the record worksheet, subsequently, felony the underlying is not listed on Only points underlying felony worksheet. from can be prior level, points punishment counted in the not for record Vaughn, App. 456, 460, enhancement. State v. 130 N.C. 503 S.E.2d per curiam, (1998), S.E.2d 638 aff’d felony This is being because an habitual felon is itself. “ is, rather, Id. It ‘a attaining subjects person status the of which punishment thereafter convicted of a crime to an for increased that ” omitted). crime.’ (citation Id. While the record is that clear felony underlying carrying points,2 is, had to be a Class H or I two it nevertheless, felony actually unclear underlying as to what the is. However, defendant concedes his brief that he should two receive points felony underlying prior for the for the habitual felon convic- Therefore, properly tion. points defendant was for given two felony underlying prior habitual felon conviction. above, points felony

Based on the errors detailed sentencing 15A-1340.14(c)pro- have seventeen. should been Section vides that record levels for are: sentencing (5) “[t]he Level points V—At least but not more than 18 VI— (6) Level [and] points.” At Therefore, appears least 19 N.C.G.S. 15A-1340.14(c). it improperly points, sentenced at a level VI with 19 points. been at should have sentenced a level V with a total of 17 According agreement, to the should sen- have been C, presumptive tenced as a V at range, Class Level the minimum meaning defendant should have received a sentence of to 151 Department months in of Corrections instead a sentence to 171months.

VIII. Conclusion reasons, foregoing For the we find no in defendant’s trial error jury’s uphold and felony the conviction of oh two of counts obtaining property by pretenses felony false and one and one misde- However, meanor of fraud. the count financial card trial court lacked a agreement, factual basis for some on defendant’s therefore, judgment vacate the aside we set defendant’s agreement. proceedings for Weremand this case consistent with this opinion, including resentencing the of defendant. only 2. The record worksheet shows that the convictions for defend- carry points.

ant are for H and I felonies Class IN COURT OF APPEALS App. N.C. part. in in part; and remanded part;

No vacated error concurs. Judge WYNN part sep- in a part and dissents concurs in

Judge JACKSON opinion. arate part. part, dissenting in

JACKSON, Judge, concurring from the below, respectfully I must dissent For reasons stated the pleas that his defendant’s claim Court’s decision address concur, however, in the an factual basis. I were based on insufficient presented. remaining four issues prop- petition did not the Court

Because I believe that defendant deny petition. North erly certiorari, I for writ of would Statutes, provides that section 15A-1444 Carolina General matter appellate review as a of is not entitled to a no to a crim- right he entered of or contest when has may appel- superior court, petition but charge in the he inal by certiorari. late division for review writ of However, petitions for writ of 15A-1444(e) (2007). N.C. § Gen. Stat. by Appellate of our Rules Procedure. certiorari are constrained is neces- (2007) (“[Discretionary 15A-1444 cmt. review Gen. Stat. sarily appellate division”). The the rules of the Court’s controlled of is limited to discretion to issue a writ certiorari right prosecute . when an appropriate . . circumstances timely appeal action, to take or when no has been lost failure interlocutory exists, appeal order or for review right of from an an pursuant order of the trial court 15A-1422(c)(3) G.S. denying appropriate a relief. motion See, e.g., Hadden, 175 N.C. App. (2007). N.C. R. P. State v. 21(a)(1) Pimental, App. (2006); 492, 497, 624 S.E.2d petition be 76-77, (2002). The should filed 568 S.E.2d include Appeals with Court of must the clerk necessary understanding facts an statement of the reasons presented application; statement issues issue; copies judgment, why certified the writ should may be essential to opinion parts or of the record which order or petition. set forth in the understanding of the matters R. P. 21(c) IN THE COURT OF APPEALS GRP., COMMERCIAL INC. v. CREDIT BARBER case, In the instant simply noted in his that “in brief the event this Court appeal determines that does not have [defendant] right guilty plea... as of requests from his that this Court [defendant] accept petition this as a Furthermore, defendant’s certiorari].]” appeal requirements does not conform to the of Rule 21. As I would deny petition, I must dissent.

COMMERCIAL CREDIT LELAND GROUP, INC., Plaintiff JR., individu- BARBER, ally and d/b/a B.M.E. RECYCLING, Defendant

No. COA09-42 (Filed 2009) 15 September 1. Uniform Commercial Code— resale of collateral —commer-

cial reasonableness trial court did not err concluding that auction the of a recycler commercially was unreasonable because creditor was not to a presumption entitled of commercial reasonableness under 25-9-626(a)(l) gross N.C.G.S. disparity between private price second resale and the winning bid, creditor’s which commercially was a direct result of unreasonable advertis- ing methods, demonstrated price recycler that the auction was not reasonable.

2. Uniform Commercial Code— resale of collateral —defi-

ciency judgment

The trial did failing grant deficiency not err judg- ment because the creditor failed establish amount that could commercially have been obtained from a reasonable sale of the collateral, thus, properly the trial court concluded that the collateral was worth at least the amount of the debtor’s debt. 3. jurisdiction Costs— taxed creditor —

The trial by ordering court did not err the costs the action be judgment taxed to the creditor because éntered favor of jurisdiction debtor and trial court had to issue the order. Appeaí'by plaintiff judgment September from entered 24 Judge Duke, Jr., County W. Russell Superior in Pitt Court. Heard in Appeals May Court of 2009.

Case Details

Case Name: State v. Flint

Court Name: Court of Appeals of North Carolina

Date Published: Sep 15, 2009

Citation: 682 S.E.2d 443

Docket Number: COA08-1235

Court Abbreviation: N.C. Ct. App.