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    "judges": [
      "Judges STEPHENS and SMITH concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. KENNETH EARL PRITCHARD"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nKenneth Earl Pritchard (Defendant) entered a plea of guilty to second-degree murder and assault with a deadly weapon with intent to kill. Superior Court Judge Jack W. Jenkins entered judgment on 27 October 2003 and sentenced Defendant to a term of 196 months to 245 months in prison for second-degree murder and to a consecutive term of 31 months to 47 months in prison for the assault charge. Defendant appealed, and in State v. Pritchard, 172 N.C. App. 174, 616 S.E.2d 28 (2005) (unpublished), our Court found error in the determination of aggravating factors and remanded the case for re-sentencing.\nDefendant was re-sentenced on 8 June 2006 by Superior Court Judge William C. Griffin to a term of 189 months to 236 months in prison for second-degree murder and to a consecutive term of 29 months to 44 months in prison for the assault charge. Between Defendant\u2019s sentencing on 27 October 2003 and his re-sentencing on 8 June 2006, Defendant was convicted of another offense on 28 March 2005. As a result of the 28 March 2005 conviction, the trial court determined that Defendant had a prior record level of II at re-sentencing, rather than a record level of I, as he had at the time of his original sentencing on 27 October 2003.\nDefendant argues the trial court erred by including his 28 March 2005 conviction in the determination of his prior record level because that conviction did not exist at the time Defendant was originally sentenced. N.C. Gen. Stat. \u00a7 15A-1340.14(a) (2005) provides:\nThe prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender\u2019s prior convictions that the court, or with respect to subdivision (b)(7) of this section, the jury, finds to have been proved in accordance with this section.\nN.C. Gen. Stat. \u00a7 15A-1340.il(7) (2005) states: \u201cPrior conviction. \u2014 A person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime [.]\u201d\nOur Court previously decided the precise issue presented in the present case in State v. Borders, 171 N.C. App. 363, 615 S.E.2d 96 (2005) (unpublished). Although we are not bound by a prior unpublished decision, see United Services Automobile Assn. v. Simpson, 126 N.C. App. 393, 396, 485 S.E.2d 337, 339, disc. review denied, 347 N.C. 141, 492 S.E.2d 37 (1997) (holding that this Court is not bound by a prior unpublished decision of another panel of this Court), we find the reasoning of Borders instructive. In Borders, we held that \u201c[according to [N.C.G.S. \u00a7 15A-1340.11(7)], a person has a prior conviction if he has the conviction as of the time he is being sentenced.\u201d Therefore, our Court held that because the defendant in Borders had the conviction at the time he was re-sentenced, the trial court properly considered the conviction in determining the defendant\u2019s prior record level.\nIn support of the holding in Borders, our Court also relied upon State v. Mixion, 118 N.C. App. 559, 455 S.E.2d 904 (1995), which interpreted similar provisions of the Fair Sentencing Act. In Mixion, the defendant was convicted and sentenced on 5 April 1991. Id. at 561, 455 S.E.2d at 905. The defendant appealed and our Court affirmed the conviction, but remanded the case for re-sentencing. Id. Between the time of the defendant\u2019s original sentencing and his re-sentencing hearing, the defendant was convicted of another offense. Id. at 562, 455 S.E.2d at 905. Based upon this offense, the trial court, at the defendant\u2019s re-sentencing hearing, found the aggravating factor of a prior conviction. Id. Our Court held that \u201cat the time of resentencing, [the] defendant had a prior conviction[]\u201d and, therefore, the trial court properly found this prior conviction as an aggravating factor. Id. at 563-64, 455 S.E.2d at 906. In a parenthetical, our Court noted:\nOur holding is buttressed by the newly enacted [N.C. Gen. Stat.] \u00a7 15A-1340.11(7) (Cum. Supp. 1994), applicable to offenses occurring on or after 1 October 1994, which states \u201c[a] person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime[.]\u201d\nId. at 563, 455 S.E.2d at 906.\nIn support of his argument, Defendant relies upon N.C. Gen. Stat. \u00a7 15A-1331(b), which provides: \u201cFor the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest.\u201d N.C. Gen. Stat. \u00a7 15A-1331(b) (2005). However, this statute speaks only to the issue of when a person is deemed to have a conviction. Our Court has \u201c \u2018interpreted N.C. Gen. Stat. \u00a7 15A-1331(b) to mean that formal entry of judgment is not required in order to have a conviction.\u2019 \u201d State v. Canellas, 164 N.C. App. 775, 778, 596 S.E.2d 889, 891 (2004) (quoting State v. Hatcher, 136 N.C. App. 524, 527, 524 S.E.2d 815, 817 (2000)). In other words, a person has a conviction immediately upon being found guilty by a jury, see State v. Fuller, 48 N.C. App. 418, 420, 268 S.E.2d 879, 881, disc. review denied, 301 N.C. 403, 273 S.E.2d 448 (1980), or upon pleading guilty or no contest. See Hatcher, 136 N.C. App. at 527, 524 S.E.2d at 817. In contrast, N.C.G.S. \u00a7 15A-1340.il(7) specifies the point at which a conviction qualifies as a \u201cprior conviction.\u201d Under N.C.G.S. \u00a7 15A-1340.11(7), a person has a prior conviction if the person has that conviction, as determined by N.C.G.S. \u00a7 15A-1331(b), on the date a judgment is entered. In the present case, judgment was entered against Defendant at his re-sentencing on 8 June 2006. At that point in time, Defendant had previously been convicted of another offense on 28 March 2005.\nFor the reasons stated above, we hold that for purposes of calculating a defendant\u2019s prior record level at re-sentencing, a trial court may consider a defendant\u2019s conviction that was entered after the defendant\u2019s original sentencing, but prior to the defendant\u2019s re-sentencing. Therefore, the trial court did not err by considering Defendant\u2019s 28 March 2005 conviction in its determination of Defendant\u2019s prior record level at re-sentencing. We overrule this assignment of error. Defendant failed to set forth argument pertaining to his remaining assignment of error and we deem it abandoned. See N.C.R. App. P. 28(b)(6).\nAffirmed.\nJudges STEPHENS and SMITH concur.",
        "type": "majority",
        "author": "McGEE, Judge."
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    "attorneys": [
      "Attorney General Roy Cooper, by Associate Attorney General LaToya B. Powell, for the State.",
      "Geoffrey W. Hosford, for Defendant."
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    "head_matter": "STATE OF NORTH CAROLINA v. KENNETH EARL PRITCHARD\nNo. COA06-1559\n(Filed 18 September 2007)\nSentencing\u2014 prior record level on resentencing \u2014 conviction after sentencing\nWhen recalculating a defendant\u2019s prior record level at resen-tencing, the court may consider a conviction that was entered after the original sentencing but before the resentencing.\nAppeal by Defendant from judgments entered 8 June 2006 by Judge William C. Griffin in Superior Court, Beaufort County. Heard in the Court of Appeals 22 August 2007.\nAttorney General Roy Cooper, by Associate Attorney General LaToya B. Powell, for the State.\nGeoffrey W. Hosford, for Defendant."
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