{
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  "name": "STATE OF NORTH CAROLINA v. JAMES LINDSAY",
  "name_abbreviation": "State v. Lindsay",
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    "judges": [
      "Judges WYNN and BRYANT concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES LINDSAY"
    ],
    "opinions": [
      {
        "text": "HUNTER, Judge.\nOn appeal, James Lindsay (\u201cdefendant\u201d) contends that the trial court erred in calculating his prior record level for sentencing when it assessed points for being on probation, for convictions occurring in the same week of superior court, and for an out-of-state robbery conviction. After careful review, we hold that any miscalculation by the trial court did not affect defendant\u2019s sentencing and was therefore harmless error. We therefore find no error.\nOn 27 June 2005, defendant pled guilty to assault inflicting serious bodily injury, a class F felony, with no agreement on sentencing. The prior record level worksheet prepared by the State indicated that defendant had twenty-nine prior record level points, corresponding to a prior record level VI for sentencing. Defendant agreed and stipulated to. the prior record level and points. The trial court accepted defendant\u2019s plea and found no aggravating or mitigating factors. On 30 June 2005, the court sentenced defendant within the presumptive range to imprisonment for a minimum of thirty-nine months and a maximum of forty-seven months.\nDefendant appeals pursuant to N.C. Gen. Stat. \u00a7 15A-1444(a2) (2005), which allows a defendant to appeal a guilty plea as a matter of right when the defendant\u2019s prior record level was improperly calculated.\nI.\nDefendant argues that the trial court incorrectly calculated his prior record level pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14 (2005). Specifically, he contends that five of the twenty-nine points were improperly assessed, so his correct point total is twenty-four. He further asserts that, even though level VI includes all point totals from nineteen up, this error was not harmless because the trial court might have considered a shorter sentence within the presumptive range had he been assigned only twenty-four points. This argument is without merit.\nThis Court applies a harmless error analysis to improper calculations of prior record level points. State v. Bethea, 173 N.C. App. 43, 61, 617 S.E.2d 687, 698 (2005); State v. Smith, 139 N.C. App. 209, 219-20, 533 S.E.2d 518, 524 (2000). In both Bethea and Smith, the defendants argued that the trial courts erroneously assessed points in determining their prior record levels. Id. This Court held that even if the trial courts did miscalculate the points involved, this constituted harmless error, because deducting the improperly assessed points would not affect the defendants\u2019 record levels. Id.\nDefendant makes a series of arguments as to why individual points were incorrectly assessed. However, whether the trial court miscalculated as to those five points is not dispositive in this case. Assuming arguendo that the trial court improperly included all five points, subtracting them would still leave defendant\u2019s prior record level at VI. Defendant was correctly sentenced within the presumptive range of an offender with a prior record level VI pursuant to N.C. Gen. Stat. \u00a7 15A-1340.17. A sentence in the presumptive range is accepted as valid, unless the record shows that the trial court considered improper evidence. State v. Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987).\nWhile the trial court might have erred in calculating defendant\u2019s points, any such error does not affect defendant\u2019s record level of VI or the appropriate presumptive sentencing range, and thus the error is harmless. We therefore find no prejudicial error.\nII.\nIn its brief, the State makes a motion to dismiss, arguing that defendant\u2019s assignment of error violated Rule 10(c)(1) of the North Carolina Rules of Appellate Procedure. We deny the motion.\nRule 10(c)(1) provides that an assignment of error must be stated plainly and concisely and \u201cis sufficient if it directs the attention of the appellate court to the particular error about which the question is made[.]\u201d N.C.R. App. P. 10(c)(1). Defendant\u2019s third assignment of error states:\nThe trial court\u2019s error in determining the Defendant\u2019s criminal history category pursuant to the North Carolina Structured Sentencing Act. The Defendant asserts as a legal basis Chapter 15A of the North Carolina General Statutes and the Due Process Clause of the United States Constitution, N.C. Constitution Art. I, \u00a7 19. The Defendant asserts constitutional error, structural error, prejudicial error, or in the alternative plain error.\nTranscript page 20.\nRecord pages 16-20.\nThe State cites State v. Mullinax, 180 N.C. App. 439, 637 S.E.2d 294 (2006), to support its argument. In Mullinax, this Court ruled that the defendant violated Rule 10(c)(1) because his assignment of error was too vague when it stated only that the defendant\u2019s \u201cprior record level was incorrectly calculated.\u201d Id. at 441, 637 S.E.2d at 296. The instant case is distinguishable from Mullinax in that defendant\u2019s assignment of error in our case is not as brief or vague. In fact, defendant references specific statutes and the applicable transcript and record page numbers. We find that defendant\u2019s assignment of error plainly and concisely states a specific trial court error. Therefore, the State\u2019s motion to dismiss is denied.\nIII.\nBecause the trial court\u2019s miscalculation of defendant\u2019s points does not affect his record level for sentencing, we find no error as to defendant\u2019s active prison sentence of thirty-nine to forty-seven months. Furthermore, we find that defendant\u2019s assignment of error complies with N.C.R. App. P. 10(c)(1) because it is sufficiently specific, and thus the State\u2019s motion to dismiss is denied.\nNo error.\nJudges WYNN and BRYANT concur.",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General Brenda Eaddy, for the State.",
      "Eric A. Bach for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES LINDSAY\nNo. COA06-1029\n(Filed 7 August 2007)\n1. Sentencing\u2014 prior record level \u2014 calculation\u2014harmless error analysis\nThe trial court did not commit prejudicial error in an assault inflicting serious bodily injury case by calculating under N.C.G.S. \u00a7 15A-1340.14 defendant\u2019s prior record level for sentencing when it assessed points for being on probation, for convictions occurring in the same week of superior court, and for an out-of-state robbery conviction, because: (1) even if the trial court miscalculated the points involved, the improperly assessed points would not affect defendant\u2019s record level; and (2) a sentence within the presumptive range is accepted as valid unless the record shows the trial court considered improper evidence.\n2. Appeal and Error\u2014 preservation of issues \u2014 motion to dismiss assignment of error \u2014 vagueness\nThe State\u2019s motion to dismiss defendant\u2019s assignment of error in an assault inflicting serious bodily injury case based on an alleged violation of N.C. R. App. R 10(c)(1) is denied, because: (1) defendant references specific statutes and the applicable transcript and record page numbers; and (2) defendant\u2019s assignment of error plainly and concisely stated a specific trial court error.\nAppeal by defendant from judgment entered 30 June 2005 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 June 2007.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Brenda Eaddy, for the State.\nEric A. Bach for defendant-appellant."
  },
  "file_name": "0314-01",
  "first_page_order": 346,
  "last_page_order": 349
}
