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      "STATE OF NORTH CAROLINA v. LANCE DYLAN FLINT"
    ],
    "opinions": [
      {
        "text": "HUNTER, JR., Robert N., Judge.\nLance Dylan Flint (\u201cdefendant\u201d) appeals from a judgment entered after a jury convicted defendant and following a subsequent plea agreement in which he pled guilty to sixty-eight felonies and four misdemeanors. Defendant\u2019s appeal is founded on five issues, including denial of a motion to continue; allowing testimony by an unlisted witness; proceeding to a trial on habitual felon status following his convictions; accepting his guilty plea without a proper evidentiary foundation and improper sentencing. For the reasons discussed herein, we find no error in defendant\u2019s trial and convictions; however, we vacate the judgment, set aside defendant\u2019s plea agreement, and remand for proceedings consistent with this opinion.\nI. Background\nPrior to 14 November 2005 defendant had over one hundred prior convictions, which included both felonies and misdemeanors. From 14 November 2005 to 22 May 2006, defendant was indicted for eighty-two felonies and eight misdemeanors, which occurred between 13 May 2005 and 10 April 2006 in New Hanover County. These indictments included charges for common law robbery, breaking and entering a motor vehicle, breaking and entering into a building, financial card fraud, obtaining property by false pretenses, forgery.of instruments, uttering forged instruments, possession of stolen goods/property, financial identity fraud, misdemeanor larceny, felony larceny, injury to personal property and eluding arrest. Defendant was also indicted for being an habitual felon on 28 November 2005.\nIncluded in the 22 May 2006 indictments were three felony charges of obtaining property by false pretenses, two charges of felony financial card fraud, and one charge of misdemeanor financial card fraud, all of which allegedly occurred on 10 March 2006. At the 7 November 2007 Session of New Hanover County Criminal Superior .Court, defendant was scheduled to be tried on the aforementioned six charges contained in the 22 May 2006 indictment. The other indictments were not scheduled for trial at that time. The Honorable D. Jack Hooks, Jr., presided at the trial.\nBefore trial, defendant made a motion to continue, arguing that \u201che [did not] feel comfortable proceeding to trial\u201d because he did not receive discovery until 17 October 2007 and did not receive the surveillance tapes until approximately a week after that. The trial court denied defendant\u2019s motion.\nAt trial, the State presented evidence that Melvin Blackmon\u2019s credit cards were stolen in March 2006, and within hours were used to purchase items from a Harris Teeter Grocery Store and two Lowe\u2019s Home Improvement Stores. Upon being contacted by the Wrightsville Beach Police Department, Kathy Holman, the manager of the Harris Teeter, produced a copy of the credit card receipt and the surveillance video of the transaction. Ms. Holman\u2019s testimony authenticated the receipt and the copy of the surveillance video that was eventually played for the jury. However, defendant objected to Ms. Holman being allowed to testify because she was identified as \u201cKathy Holbrook\u201d on the State\u2019s witness list, and therefore, he did not have the opportunity to question jury members about their knowledge of Kathy Holman. The trial court overruled defendant\u2019s objection and allowed Ms. Holman to testify.\nDetective Christopher Schwartz of the Wrightsville Beach Police Department testified that during his investigation, he retrieved surveillance videos and receipts from Harris Teeter and Lowe\u2019s stores, and these videos and receipts were shown to the jury. Defendant exercised his right to remain silent and presented no evidence. On 9 November 2007, the jury convicted defendant on two felony counts of obtaining property by false pretenses and one count each of felony and misdemeanor financial card fraud. The jury acquitted defendant on the remaining two charges contained in the 22 May 2006 indictment.\nFollowing the verdict, the trial court excused the jury temporarily to address an indictment for attaining the status of an habitual felon. Counsel conferred bri\u00e9fly with defendant and announced to the trial court that defendant agreed to enter a plea agreement admitting his habitual felon status and pleading guilty to multiple charges pending against him in New Hanover County. Defendant had been arraigned on some of the pending charges, but not all of them, which included some sixty-eight felony counts. Defendant was then arraigned on forty-eight charges including having obtained the status of an habitual felon. After defendant was arraigned, the court proceeded to take the transcript of plea, consisting of twelve pages and listing sixty-eight felonies and two misdemeanors plus the habitual felon charge. The prosecutor then submitted a written factual basis for the plea listing forty-seven felonies to which defendant stipulated. The listed felony charges included five breaking and entering a motor vehicle offenses, one common law robbery offense, three breaking and entering offenses, one financial card fraud offense, eight forgery of instruments offenses, and twenty-nine obtaining property by false pretenses offenses. Absent from the factual basis document, but included in the transcript of plea, were three uttering forged instrument offenses, one possession of stolen goods offense, one financial card identity fraud offense, fifteen forgery offenses, and one felony eluding arrest offense.\nAfter accepting defendant\u2019s plea, the trial court reviewed defendant\u2019s prior record worksheet. The prior record worksheet submitted to the trial judge showed that defendant had eight Class H or I felonies carrying two points each and three misdemeanor convictions carrying one point each giving him a total of nineteen points. Defendant\u2019s attorney signed a stipulation agreement on the prior record worksheet, and defendant himself stated in open court that he had reviewed the worksheet. Based on the prior record worksheet and pursuant to the plea agreement, defendant\u2019s convictions and plea were consolidated, and he was sentenced at prior record level VI to an active term in the Department of Corrections of 135 to 171 months.\nII. Issues\nDefendant argues the trial court erred by (1) denying his motion to continue, (2) allowing Ms. Holman to testify, (3) proceeding to the habitual felon indictment after trial, (4) accepting his guilty plea to multiple felonies and attaining the status of an habitual felon, and (5) sentencing him at a prior record level VI.\nIII. Motion to Continue\nDefendant contends that the trial court abused its discretion by denying his motion to continue because he did not receive discovery at a reasonable time prior to his trial. We disagree.\nThis Court reviews a trial court\u2019s denial of motion to continue pursuant to an abuse of discretion standard. State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001), cert. denied, 535 U.S. 934, 152 L. Ed. 2d 221 (2002). A trial court abuses its discretion when the order is manifestly unsupported or when the order is so arbitrary that the decision could not have been the product of a reasoned decision. State v. Hennis, 323 N.C. 279, 285 372 S.E.2d 523, 527 (1988).\nDefendant argues that he did not receive the discovery materials and videotapes in a reasonable time prior to trial, pursuant to N.C. Gen. Stat. \u00a7 15A-903(a)(l). The statute states in pertinent part that\n(a) [u]pon motion of the defendant, the court must order the State to:\n(1) [m]ake available to the defendant the complete files of all law enforcement and prosecutorial agencies involved in the investigation .of the crimes committed or the prosecution of the defendant.\nN.C. Gen. Stat. \u00a7 15A-903(a)(l) (2007).\nDefendant argued for his motion to continue before trial in the following manner:\nMR. HOSFORD [\u201cDefense Counsel\u201d]: Your Honor, may it please the Court, Mr. Flint would like me to bring to the Court\u2019s attention that we received discovery relating to this case on October 17, 2007.1 met with Mr. Flint after that date, provided it to him. He is not comfortable with going forward with trial at this point in time with that amount of notice.\nThe State provided the videotapes that they intend to introduce after that, approximately a week after that, after I met with Mr. Flint, which is some 18 months after he was arrested. And he' would like the Court to know that, and on his behalf he wants me to make a motion to continue it, as he doesn\u2019t feel comfortable proceeding at trial.\nTHE COURT: In the Court\u2019s discretion, that motion is denied.\nN.C. Gen. Stat. \u00a7 15A-903(a) requires that the defendant make a motion in order for the court to order the State to make discovery available to defendant. In the case sub judice, defendant\u2019s trial began on 7 November 2007, and he did not receive discovery materials until 17 October 2007 and did not receive the videotapes until a week after. Under the cited statute, the defendant must make a motion in order for the State\u2019s obligation to provide discovery prior to trial. Neither the record on appeal nor the transcript contain a motion or written agreement to provide discovery. Without such documentation in the record, defendant has not shown that the State was under any obligation to provide discovery pursuant to N.C. Gen. Stat. \u00a7 15A-903(a)(l).\nFurthermore, there is no basis in the record to show that additional time was necessary for the preparation of a defense. \u201c\u2018To demonstrate that the time allowed [to prepare for trial] was inadequate, the defendant must show \u201chow his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion.\u201d \u2019 \u201d State v. Williams, 355 N.C. 501, 540-41, 565 S.E.2d 609, 632 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003) (citations omitted). There is no abuse of discretion where \u201cdefendant failed to provide any \u2018form of detailed proof indicating sufficient grounds for further delay.\u2019 \u201d State v. Beck, 346 N.C. 750, 756-57, 487 S.E.2d 751, 756 (1997) (citation omitted). In this, the sole reason given by defense counsel for requesting the continuance was that defendant himself did not \u201cfeel comfortable\u201d proceeding to trial, and therefore, he had directed his counsel to seek a continuance. Lacking an argument or evidence presented to the trial court that defendant would have needed additional time to prepare his defense or that he was materially prejudiced by the denial of his motion to continue, the trial court did not abuse its discretion in denying the motion.\nIV. Ms. Holman\u2019s Testimony\nDefendant argues that the trial court erred in allowing Karen Holman, a Harris Teeter employee, to testify because her name had been misstated as \u201cKaren Holbrook,\u201d on the list of witnesses provided by the State. Defendant contends that allowing Ms. Holman to testify was an abuse of discretion because he was not afforded the opportunity to question the jury panel about its knowledge of her.\nDefendant bases his argument on N.C. Gen. Stat. \u00a7 15A-903(a)(3), which states, in pertinent part that\n(a) [u]pon motion of the defendant, the court must order the State to:\n(3) [g]ive the defendant, at the beginning of jury selection, a written list of the names of all other witnesses whom the State reasonably expects to call during the trial.\nN.C. Gen. Stat. \u00a7 15A-903(a)(3)(2007). Section 15A-903(a)(3) goes on to state that \u201c [additionally, in the interest of justice, the court may in its discretion permit any undisclosed witness to testify.\u201d Id.\nIn the case sub judice, the record does not reveal any defense motion or written agreement for the State to provide a witness list, nor does the record contain the State\u2019s witness list that was supposedly provided to defendant. However, the transcript indicates that defense counsel did object to Ms. Holman being allowed to testify and that the trial judge, in his discretion, had overruled the objection. The pertinent part of the transcript is as follows:\n[DEFENSE COUNSEL]: And I also objected to testimony of Ms. Holman, as she was not listed on the witness list, and the Court overruled the objection. There was reference by the prosecution that Ms. Holman w\u00e1s listed in the discovery. I\u2019ll let the Court know that Ms. Holman was listed as Karen Holbrook at Harris Teeter in the discovery, so Ms. Holman\u2019s \u2014 for the first time as Ms. Holman \u2014 and she testified, and we objected to her testimony.\nTHE COURT: And I believe what you further referenced was that you hadn\u2019t had opportunity to make inquiry of the jury as to Ms. Holman as opposed to Ms. Holbrook; is that right?\n[DEFENSE COUNSEL]: Yes.\nTHE COURT: That\u2019s fine. The record will reflect that those objections were posed, and that the Court in its discretion overruled the same.\nThere are two issues with defendant\u2019s argument that the trial court abused its discretion by allowing Ms. Holman to testify. First, it is not clear from the record that defendant moved under N.C. Gen. Stat. \u00a7 15A-903(a)(3) to compel the State to produce a list of witnesses that it reasonably expected to call during the trial. Section 15A-903(a)(3) is clear that a motion by the defendant is required for the statute to be in effect. However, assuming arguendo that a motion was in fact made by defense counsel, N.C. Gen. Stat. \u00a7 15A-903(a)(3), nevertheless, provides that \u201cin the interest of justice, the court may in its discretion permit any undisclosed witness to testify.\u201d N.C. Gen. Stat. \u00a7 15A-903(a)(3) (emphasis added).\nSecond, Ms. Holman\u2019s testimony in this case was only to authenticate the receipt and surveillance video taken the day of the alleged crime at the Harris Teeter. Ms. Holman explained that she received a call from Detective Schwartz of the Wrightsville Police Department asking her if she had video to show who had made a transaction with Melvin Blackmon\u2019s credit card on the morning of 10 March 2006. Ms. Holman then explained Harris Teeter\u2019s surveillance system to the jury, testified that the system was working properly on the morning of 10 March 2006, and explained what she did with the copy of the surveillance video before giving it to Detective Schwartz. Because Ms. Holman\u2019s testimony was purely to authenticate documents and tapes, the trial court was acting within its discretion to allow her testimony.\nV. Proceeding to Habitual Felon Indictment\nDefendant argues that the trial court committed error by: (1) proceeding to the habitual felon part of the trial; and (2) in accepting his guilty plea to multiple felonies, because the habitual felon indictment was not ancillary to the charges on which he was tried, the trial court lacked jurisdiction to proceed on it, and his plea was not voluntary. We disagree.\nIn North Carolina, an habitual felon indictment must be ancillary to a substantive felony and cannot stand on its own. State v. Allen, 292 N.C. 431, 456, 233 S.E.2d 585, 589 (1977). In the case sub judice, the habitual felon indictment was returned on 28 November 2005. However, defendant was not indicted on charges for obtaining property by false pretenses and financial card fraud until 22 May 2006. Furthermore, these crimes did not even occur until 10 March 2006, over three months after the habitual felon indictment was returned. This Court has stated that an habitual felon indictment may be returned before, after, or simultaneously with a substantive felony indictment. State v. Blakney, 156 N.C. App. 671, 675, 577 S.E.2d 387, 390, disc. review denied, 357 N.C. 252, 582 S.E.2d 611 (2003). It is difficult to see how the habitual felon indictment could attach as ancillary to felonies that had not yet occurred. Therefore, defendant correctly contends that the habitual felon indictment was not ancillary to the indictments for obtaining property by false pretenses and financial card fraud, which defendant was convicted of at the 7 November 2007 Criminal Session of New Hanover County Superior Court.\nDefendant contends that without valid substantive indictments for the habitual felon indictment to attach to, the trial court lacked jurisdiction to proceed with a bifurcated proceeding regarding defendant\u2019s habitual status. However, (1) the trial court never proceeded to the habitual felon phase of the trial due to defendant\u2019s plea, and (2) there were substantive felonies to which the habitual felon indictment was ancillary.\nFirst, the trial court never submitted to the jury for its determination the 28 November 2005 habitual felon indictment. After defendant was found guilty of two felony counts of obtaining property by false pretenses, and one felony and one misdemeanor count of financial card fraud, the transcript reads as follows:\nTHE COURT: Has [defendant] at this point been arraigned as to the allegations contained in the habitual felon status file?\nMR. DAVID [Prosecutor]: Your Honor, it\u2019s my understanding he has been previously arraigned on that charge, and the State is ready to proceed at this time.\nDEFENSE COUNSEL: Your Honor, I don\u2019t know if he\u2019s been arraigned, actually, on that charge.\nTHE COURT: We can arraign him at this time.\n[PROSECUTOR]: May I have a moment to confer with counsel?\nTHE COURT: You sure can. (Counsel conferred.)\nTHE COURT: Do you want a moment with your client?\n[DEFENSE COUNSEL]: Yes, your Honor.\nTHE COURT: We\u2019ll stand at ease for about three minutes\u2019 time.\nAfter the recess, defense counsel indicated that defendant was \u201cgoing to dispose of all his cases with a plea.\u201d Therefore, due to defendant\u2019s plea, the habitual felon phase of the trial did not occur.\nSecond, the trial court had jurisdiction to accept defendant\u2019s plea because the habitual felon indictment was ancillary to prior pending substantive indictments. The habitual felon indictment was returned on 28 November 2005. Two weeks prior to the habitual felon indictment, on 14 November 2005, defendant was indicted: in 05CRS57605 for breaking and entering a motor vehicle on 13 May 2005; in 05CRS58997 for.financial card fraud, forgery of an instrument, and uttering a forged instrument on 9 June 2009, and forgery of an instrument and uttering a forged instrument on 10 June 2005; and in 05CRS59853 for obtaining property by false pretenses. Additionally, on 12 December 2005, defendant was indicted in 05CRS58994 for common law robbery on 9 June 2005. Therefore, the habitual felon indictment was, at the least, ancillary to these multiple felony indictments, meaning the trial court had proper jurisdiction to accept a plea from defendant as to all his pending charges and to his status as an habitual felon.\nFinally, defendant argues that because he could not have been sentenced as an habitual felon for the charges on which the jury convicted him, his subsequent plea and admission to the status of an habitual felon were not the product of his informed choice and therefore invalid. In order for a plea of guilty to be valid, it must be made knowingly and voluntarily. State v. Allen, 164 N.C. App. 665, 669, 596 S.E.2d 261, 263 (2004). Defendant cites N.C. Gen. Stat. \u00a7 15A-1022(a) as grounds for this argument. Section 15A-1022(a), which governs the duties of a superior court judge when accepting a plea of guilty or no contest, provides in pertinent part:\n[A] superior court judge may not accept a plea of guilty or no contest from the defendant without first addressing him personally and:\n(1) Informing him that he has a right to remain silent and that any statement he makes may be used against him;\n(2) Determining that he understands the nature of the charge;\n(3) Informing him that he has a right to plead not guilty;\n(4) Informing him that by his plea he waives his right to trial by jury and his right to be confronted by the witnesses against him;\n(5) Determining that the defendant, if represented by counsel, is satisfied with his representation;\n(6) Informing him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences, and of the mandatory minimum sentence, if any, on the charge[.]\nN.C. Gen. Stat. \u00a7 15A-1022(a) (2007). Because N.C.G.S. \u00a7 15A-1022 relates only to the duties of a trial judge prior to \u201caccept[ing] a plea of guilty,\u201d we look only at the record relating to the court\u2019s examination of defendant prior to its approval of his tendered pleas of guilty. See State v. Wynn, 278 N.C. 513, 180 S.E.2d 135 (1971).\nIn the case sub judice, the trial judge complied with N.C. Gen. Stat. \u00a7 15A-1022(a) by addressing defendant personally. The pertinent part of the transcript includes:\nTHE COURT: If you will have [defendant] sworn to the transcript, please.\n(The oath was administered to the defendant by the clerk.) THE COURT: You are . . . Lance Dylan Flint, age 35?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: You are able to hear and understand me?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Do you understand that you have the right to remain silent, and that anything you say can be used against you?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Have you completed the GED, read and write on the left [sic] of a high school graduate?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Are you now under the influence of alcohol, drugs, narcotics, medicines, or any other intoxicating or impairing substances?\nTHE DEFENDANT: No, sir.\nTHE COURT: The transcript reflects that you last used or consumed such a substance two years ago; is that correct?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Have the charges been explained to you by counsel, and do you understand the nature of these charges and every element of each charge?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Have you arid your attorney discussed the possible defenses, if there are any, for these charges?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Are you satisfied with his legal services?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Do you understand that you have the right to plead not guilty and be tried by a jury, and at such a trial to cross-examine the witnesses against you?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: And do you understand that by pleading guilty you give up these and other valuable constitutional rights to a jury trial, including for sentencing matters?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: You\u2019re a U.S. citizen?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Do you understand that you are entering pleas of guilty in the file 2005-CRS-20449 to the status of a habitual felon, which carries a Class C punishment? Do you understand that?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: And that the maximum possible punishment you could receive for that offense would be as much as \u2014 as 261 months?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: All right, sir. Now, otherwise, in the varying file numbers which you have heard called out and the charges within each file that Madam Prosecutor called out, do you understand that you are entering pleas of guilty as to each of those individual charges?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: They are written on this transcript, and you have had the opportunity to see and read each of those, and, in fact, did so; is that correct?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: All right. Do you understand that for these offenses, you face a total possible punishment of as much as 19,314 months plus 240 days?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: And the prosecutor and your lawyer have advised me that under this plea arrangement you will receive a maximum sentence of 135 months to 171 months. In other words, they\u2019re all going to be consolidated, and you would be sentenced as a habitual felon under class C to the minimum from the presumptive range for your appropriate class. Do you understand that?\nTHE DEFENDANT: Yes, sir. I do.\nTHE COURT: Do you now personally accept this plea arrangement.\nTHE DEFENDANT: Ido.\nTHE COURT: And is this correct as being your full plea arrangement?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Other than this plea arrangement, has anyone promised you anything or threatened you in any way to cause you to enter these pleas against your wishes?\nTHE DEFENDANT: No, sir.\nTHE COURT: Do you enter these pleas of your own free will, fully understanding what you\u2019re doing?\nTHE DEFENDANT: Yes, sir. I do.\nIt is clear from the record that the court informed defendant of every right listed in N.C. Gen. Stat. \u00a7 15A-1022(a), the maximum possible sentence, and determined defendant understood the charges and was satisfied with his trial counsel. Defendant\u2019s responses to the court before it accepted his guilty pleas did not indicate any misunderstanding. Because the trial court complied with N.C. Gen. Stat. \u00a7 15A-1022(a) in determining that defendant\u2019s pleas were voluntarily given and a product of informed choice, and defendant\u2019s answers did not indicate any misunderstanding requiring further inquiry by the trial court, the trial court did not err in accepting defendant\u2019s guilty pleas.\nVI. Accepting Plea Agreement\nDefendant asserts that his guilty pleas to multiple felonies and his admission to having attained the status of an habitual felon are invalid because the plea lacks an adequate factual basis. We agree.\nDefendant challenges the validity of his guilty pleas in two ways. First, defendant argues that the failure of the trial court to do a formal arraignment on every charge was error. As this issue was not preserved by an assignment of error as required by Rule 10(a) of the Rules of Appellate Procedure, it is deemed to be waived. See N.C. R. App. P. Rule 10(a) (2009> (\u201cExcept as otherwise provided herein, the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal[.]\u201d); see also Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 195-96, 657 S.E.2d 361, 364 (2008) (holding \u201ca party\u2019s failure to properly preserve an issue for appellate review ordinarily justifies the appellate court\u2019s refusal to consider the issue on appeal\u201d).\nAssuming arguendo that defendant properly assigned error to this issue, the trial court\u2019s failure to arraign on all charges contained in the plea is not error. \u201c \u2018The failure to conduct a formal arraignment itself is not reversible error. The purpose of an arraignment is to allow a defendant to enter a plea and have the charges read or summarized to him and the failure to do so is not prejudicial error unless defendant objects and states that he is not properly informed of the charges.\u2019 \u201d State v. Artis, 174 N.C. App. 668, 679, 622 S.E.2d 204, 211 (2005) (citations omitted), disc, review denied, 360 N.C. 365, 630 S.E.2d 188 (2006). Because defendant did not object nor did he claim that he was not properly informed of the charges contained in the plea, the trial court did not commit prejudicial error.\nSecond, defendant argues that there was an insufficient factual basis for the plea. Preliminarily, we note that defendant has no appeal of right as to this issue. See State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987) (\u201c[A] defendant is not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea.\u201d) Defendant stated in his brief that \u201cin the event this Court determines that [defendant] does not have an appeal as of right from his guilty plea . . . [defendant] requests that this Court accept this as a petition for certiorari].]\u201d Accordingly, we treat defendant\u2019s appeal as a petition for writ of certiorari on this issue, which we now allow. Therefore, we address the merits of defendant\u2019s argument.\nEssentially, the question presented by defendant is whether the trial court complied with N.C. Gen. Stat. \u00a7 15A-1022(c) in determining there was a factual basis for defendant\u2019s guilty plea. Guilty pleas must be substantiated in fact as prescribed by the statute at issue in this case:\nThe judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. This determination may be based upon information including but not limited to:\n(1) A statement of the facts by the prosecutor.\n(2) A written statement of the defendant.\n(3) An examination of the presentence report.\n(4) Sworn testimony, which may include reliable hearsay.\n(5) A statement of facts by the defense counsel.\nN.C. Gen. Stat. \u00a7 15A-1022(c).\nThe five sources listed in the statute are not exclusive, and therefore \u201c[t]he trial judge may consider any information properly brought to his attention in determining whether there is a factual basis for a plea of guiltyf.]\u201d State v. Dickens, 299 N.C. 76, 79, 261 S.E.2d 183, 185-86 (1980). Nonetheless, such information \u201cmust appear in the record, so that an appellate court can determine whether the plea has been properly accepted.\u201d State v. Sinclair, 301 N.C. 193, 198, 270 S.E.2d 418, 421 (1980). Further, in enumerating these five sources, the statute \u201ccontemplate^] that some substantive material independent of the plea itself appear of record which tends to show that defendant is, in fact, guilty.\u201d Id. at 199, 270 S.E.2d at 421-22.\nHere, the record before the trial court provides insufficient evidence to demonstrate that each guilty plea had a proper factual basis. There was neither a written statement by defendant nor a statement of the facts by defense counsel in the record. Additionally, there was no sworn testimony given with regard to the factual basis, nor was there any indication that an examination of the presentence report was conducted. Therefore, the record indicates that the trial court relied solely on the factual basis document presented by the State in determining the factual basis of defendant\u2019s guilty plea. The State\u2019s written factual basis document addresses 47 felony charges. However, the transcript of plea addresses 68 felony charges plus the habitual felon indictment. The transcript indicates that the trial court relied on the State\u2019s factual basis document as the factual basis for defendant\u2019s entire plea. The pertinent part is as follows:\nTHE COURT: Do you agree that there are facts to support your pleas, and consent to a written summary of the factual basis regarding these matters?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Let\u2019s have the record reflect the finding of the matter of the factual basis for each of the matters to which he is pleading guilty, both the substantive charges and particularly the status of a habitual felon contained in file 2005-20449.\nTHE COURT: . . . Madam Clerk, Lance Flint, this date pleading guilty pursuant to transcript to each of the items listed on that transcript, that is, six counts of breaking and entering a motor vehicle, one common law robbery, three counts of breaking and entering buildings, one financial card fraud offense, eight counts of forgeries of instruments, 29 counts of obtaining property by false pretenses; and just in case I did not earlier specifically say so, in file 2005-CRS-20449 to the class C status of a habitual felon. As to each of the above, [defendant] is found guilty.\nAlthough the trial court stated that defendant was \u201cpleading guilty pursuant to transcript to each of the items listed on that transcript,\u201d it is, nevertheless, clear that the trial court was solely relying on the State\u2019s factual basis document during defendant\u2019s plea to provide the factual basis for the entire plea. The trial court listed only the felonies included on the State\u2019s factual basis document when announcing defendant\u2019s plea. A second indication is the trial court\u2019s mistake that defendant was pleading guilty to six breaking and entering a motor vehicle charges when he was only pleading guilty to five of those particular charges. On the State\u2019s factual basis document, the heading indicated \u201cSix Break and Enter a Motor Vehicle Offenses.\u201d However, one of the breaking and entering a motor vehicle charges is marked out with several lines, indicating that defendant was actually only pleading to five of those charges. This mistake shows that the trial court was solely relying on the State\u2019s factual basis document as the factual basis for the entire plea. Finally, during the plea the trial court never mentioned by name or case number any other felony that was not contained in the factual basis document except for the habitual felon charge.\nFurthermore, while it is true that the trial court had before it the transcript of plea, which listed all of the felonies defendant was pleading guilty to, the transcript itself cannot provide the factual basis for the plea in and of itself. Sinclair, 301 N.C. at 199, 270 S.E.2d at 421 (holding the transcript was insufficient for the trial court to determine the existence of a factual basis, reasoning that \u201c[i]f the plea itself constituted its own factual basis, the statute requiring a factual basis to support the plea would be meaningless\u201d).\nThe State argues that the indictments for each of the charges provide the factual basis for the twenty-one felonies not found in the factual basis document. While it is true that the indictments are contained in the record on appeal, it is not clear if they were, in fact, before the trial court during defendant\u2019s plea. The trial court, in its factual basis determination, never mentions the indictments and only refers to the State\u2019s factual basis document. Therefore, the trial court erred in accepting defendant\u2019s guilty plea because there was nothing before the court to support an independent judicial determination factual basis for twenty-one of the felonies listed on the transcript of plea.\nDespite the fact that forty-seven of the felonies that defendant pled guilty to are supported by an independent factual basis, we must, nevertheless, remand this matter to the trial court. In State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734 (1955), our Supreme Court stated:\nWhere two or more indictments or counts are consolidated for the purpose of judgment, and a single judgment is pronounced thereon, even though the plea of guilty or conviction on one is sufficient to support the judgment and the trial thereon is free from error, the award of a new trial on the other indictment(s) or count(s) requires that the cause be remanded for proper judgment on the valid count.\nId. at 31, 89 S.E.2d at 737.\nThus, we vacate the trial court\u2019s judgment and remand to the trial court. Because defendant has requested that he be relieved of his plea agreement, we also set aside defendant\u2019s plea agreement due to failure of the State to provide a factual foundation. This case is remanded to the trial court where defendant may \u201cwithdraw his guilty plea and proceed to trial on the criminal charges . . . [or] attempt to negotiate another plea agreement].]\u201d State v. Wall, 348 N.C. 671, 676, 502 S.E.2d 585, 588 (1998).\nVII. Prior Record Level\nDefendant asserts that the trial court erred in sentencing defendant at a prior record level VI because he should have been sentenced at prior record level V. We agree.\nThe State recognizes that the crimes specifically listed in the record do not total the points on the worksheet, but nevertheless argues that the trial court was entitled to rely on defendant\u2019s stipulation. We find this argument unpersuasive..\n\u201cAlthough defendant\u2019s stipulation as to prior record level is sufficient evidence for sentencing at that level. . . the trial court\u2019s assignment of level [VI] to defendant was an improper conclusion of law, which we review de novo.\u201d State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007). Additionally, \u201c[stipulations as to questions of law are generally held invalid and ineffective] and not binding upon the courts, either trial or appellate.\u201d State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683, appeal dismissed, disc, review denied, 297 N.C. 179, 254 S.E.2d 38 (1979).\nThe prior record worksheet submitted to the trial court showed that defendant had eight Class H or I felonies, which carried two points each and three misdemeanor convictions, which carried one point each, giving defendant a total of nineteen points. Defendant contends the trial court erred in calculating the prior record level points for the following convictions: (1) driving while license revoked on 13 January 1994, (2) trafficking in marijuana on 28 June 2002, and (3) the status of being an habitual felon on 10 November 2005 in Brunswick County.\nFirst, defendant\u2019s driving while license revoked conviction on 13 January 1994 should not have been included on the prior record worksheet. Section 15A-1340.14(b)(5) provides that each misdemeanor conviction is worth one point. N.C. Gen. Stat. \u00a7 15A-1340.14(b)(5). However, for purposes of the subsection, a misdemeanor is defined as \u201cany Class Al and Class 1 nontraffic misdemeanor offense, impaired driving (G.S. 20-138.1), impaired driving in a commercial vehicle (G.S. 20-138.2), and misdemeanor death by vehicle (G.S. 20-141.4(a2)), but not any other misdemeanor traffic offense under Chapter 20 of the General Statutes.\u201d N.C.G.S. \u00a7 15A-1340.14(b)(5). Being that driving while license revoked is a misdemeanor traffic offense, which is not included in Section 15A-1340.14(b)(5), it is not a conviction that can be used in determining a defendant\u2019s prior record level. Defendant\u2019s only other conviction on 13 January 1994 is operating a vehicle with no insurance, which also cannot be used in determining a defendant\u2019s prior record level. Therefore, the trial court committed error by including one point for defendant\u2019s driving while license revoked conviction on his prior record worksheet.\nSecond, two points for defendant\u2019s trafficking in marijuana conviction on 28 June 2002 should not have been included on the prior record worksheet. Section 14-7.6 provides in pertinent part that \u201c[i]n determining the prior record level, convictions used to establish a person\u2019s status as an habitual felon shall not be used.\u201d N.C. Gen. Stat. \u00a7 14-7.6 (2007). The 28 November 2005 indictment that alleged defendant to be an habitual felon listed the 28 June 2002 conviction for trafficking in marijuana as one of the offenses used to indict defendant as an habitual felon. Therefore, the trafficking in marijuana conviction should not have been included on the prior record worksheet as a Class H felony giving defendant two points. However, defendant does have a countable charge from 28 June 2002 for possession of drug paraphernalia, a Class 1 misdemeanor. Therefore, defendant should have received only one point for his misdemeanor conviction from 28 June 2002, and not two points for a Class H felony that was used in the habitual felon indictment.\nFinally, defendant assigns error in including two points on the prior record worksheet for his habitual felon conviction from Brunswick County on 10 November 2005. The habitual felon conviction is handwritten on the bottom of the last page of the prior record worksheet, and subsequently, the underlying felony is not listed on the worksheet. Only the points from the underlying felony can be counted in the prior record level, not points for the punishment enhancement. State v. Vaughn, 130 N.C. App. 456, 460, 503 S.E.2d 110, 113 (1998), aff\u2019d per curiam, 350 N.C. 88, 511 S.E.2d 638 (1999). This is because being an habitual felon is not a felony in and of itself. Id. It is, rather, \u201c \u2018a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime.\u2019 \u201d Id. (citation omitted). While the record is clear that the underlying felony had to be a Class H or I carrying two points, it is, nevertheless, unclear as to what the underlying felony actually is. However, defendant concedes in his brief that he should receive two points for the underlying felony for the prior habitual felon conviction. Therefore, defendant was properly given two points for the underlying felony of the prior habitual felon conviction.\nBased on the errors detailed above, defendant\u2019s points for felony sentencing should have been seventeen. Section 15A-1340.14(c) provides that \u201c[t]he prior record levels for felony sentencing are: (5) Level V \u2014 At least 15, but not more than 18 points [and] (6) Level VI\u2014 At least 19 points.\u201d N.C.G.S. \u00a7 15A-1340.14(c). Therefore, it appears that defendant was improperly sentenced at a level VI with 19 points, and should have been sentenced at a level V with a total of 17 points. According to the plea agreement, defendant should have been sentenced as a Class C, Level V at the minimum presumptive range, meaning defendant should have received a sentence of 121 to 151 months in the Department of Corrections instead of a sentence of 135 to 171 months.\nVIII. Conclusion\nFor the foregoing reasons, we find no error in defendant\u2019s trial and uphold the jury\u2019s conviction of defendant oh two felony counts of obtaining property by false pretenses and one felony and one misdemeanor count of financial card fraud. However, the trial court lacked a factual basis for some charges on defendant\u2019s plea agreement, and therefore, we vacate the judgment and set aside defendant\u2019s plea agreement. We remand this case for proceedings consistent with this opinion, including the resentencing of defendant.\nNo error in part; vacated in part; and remanded in part.\nJudge WYNN concurs.\nJudge JACKSON concurs in part and dissents in part in a separate opinion.\n. The transcript of plea actually lists a total of seventy-four felonies and three misdemeanors. However, three offenses, breaking and entering a motor vehicle and forgery of an instrument and misdemeanor larceny, contained in 05CRS65882 are marked through with a line and notation stating \u201cVD 4/25/07,\u201d and four offenses, two breaking and entering a motor vehicle and one obtaining property by false pretense and one forgery, contained in 06CRS554865 and 06CRS54787 respectively are duplicates of felonies already listed on the transcript of plea. Therefore the correct total number of felonies listed on the transcript of plea is sixty-eight.\n. The prior record worksheet shows that the only felony convictions for defendant are for Class H and I felonies that carry 2 points.",
        "type": "majority",
        "author": "HUNTER, JR., Robert N., Judge."
      },
      {
        "text": "JACKSON, Judge,\nconcurring in part, dissenting in part.\nFor the reasons stated below, I must respectfully dissent from the Court\u2019s decision to address defendant\u2019s claim that his guilty pleas were based on an insufficient factual basis. I concur, however, in the remaining four issues presented.\nBecause I believe that defendant did not petition the Court properly for writ of certiorari, I would deny defendant\u2019s petition. North Carolina General Statutes, section 15A-1444 provides that\nthe defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.\nN.C. Gen. Stat. \u00a7 15A-1444(e) (2007). However, petitions for writ of certiorari are constrained by our Rules of Appellate Procedure. N.C. Gen. Stat. \u00a7 15A-1444 cmt. (2007) (\u201c[Discretionary review is necessarily controlled by the rules of the appellate division\u201d). The Court\u2019s discretion to issue a writ of certiorari is limited to\nappropriate circumstances . . . when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.\nN.C. R. App. P. 21(a)(1) (2007). See, e.g., State v. Hadden, 175 N.C. App. 492, 497, 624 S.E.2d 417, 420 (2006); State v. Pimental, 153 N.C. App. 69, 76-77, 568 S.E.2d 867, 872 (2002). The petition should be filed with the clerk of the Court of Appeals and must include\na statement of the facts necessary to an understanding of the issues presented by the application; a statement of the reasons why the writ should issue; and certified copies of the judgment, order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition.\nN.C. R. App. P. 21(c) (2007).\nIn the instant case, defendant simply noted in his brief that \u201cin the event this Court determines that [defendant] does not have an appeal as of right from his guilty plea... [defendant] requests that this Court accept this as a petition for certiorari].]\u201d Furthermore, defendant\u2019s appeal does not conform to the requirements of Rule 21. As I would deny defendant\u2019s petition, I must dissent.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "JACKSON, Judge,"
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Philip A. Telfer, for the State.",
      "Charlotte Gail Blake for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LANCE DYLAN FLINT\nNo. COA08-1235\n(Filed 15 September 2009)\n1. Criminal Law\u2014 denial of continuance \u2014 discovery not requested\nThe trial court did not abuse its discretion in a prosecution for robbery and other charges by denying defendant\u2019s motion to continue based on not having received discovery within a reasonable time before trial. Defendant did not move that the State make discovery available, and there was nothing in the record showing that additional time was necessary.\n2. Witnesses\u2014 name misstated on witness list \u2014 allowed to testify\nThe trial court did not abuse its discretion by allowing Karen Holman to testify when her name had been misstated as \u201cKaren Holbrook\u201d on the witness list provided by the State. The record does not reveal any defense motion or written agreement for the State to provide a witness list; moreover, this witness\u2019s testimony was purely to authenticate documents and tapes.\n3. Criminal Law\u2014 acceptance of guilty plea and habitual felon acknowledgment\nThe trial court had jurisdiction to accept a plea from defendant as to all of his pending charges and to his status as an habitual felon where the habitual felon law was, at the least, ancillary to the multiple felony indictments.\n4. Criminal Law\u2014 guilty pleas and habitual felon acknowledgment \u2014 informed choice\nThe trial court did not err by accepting defendant\u2019s guilty pleas and admission to habitual felon status where defendant argued that his plea was not the product of his informed choice. The trial court complied with N.C.G.S. \u00a7 15A-1022(a) in determining that defendant\u2019s pleas were voluntarily given and a product of informed choice, and defendant\u2019s answers did not indicate any misunderstanding.\n5. Criminal Law\u2014 arraignment \u2014 less than all charges \u2014 not prejudicial\nThere was no prejudicial error in not arraigning defendant on all charges contained in the plea where defendant did not object and did not claim that he was not properly informed of the charges.\n6. Criminal Law\u2014 guilty pleas \u2014 factual basis \u2014 insufficient\nThere was an insufficient factual basis for guilty pleas to multiple felonies and an admission to having obtained habitual felon status. The record indicates that the trial court relied solely on a document presented by the State which did not address all of the charges.\n7. Sentencing\u2014 prior record level \u2014 erroneous\u2014stipulation\nThe trial court erred by sentencing defendant at a prior record level VI when he should have been sentenced at a prior record level V. While defendant\u2019s stipulation as to prior record level is sufficient evidence for sentencing, the trial court\u2019s assignment of a record level is a conclusion of law reviewed de novo.\nJudge JACKSON concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 9 November 2007 by Judge D. Jack Hooks, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 5 May 2009.\nAttorney General Roy Cooper, by Special Deputy Attorney General Philip A. Telfer, for the State.\nCharlotte Gail Blake for defendant-appellant."
  },
  "file_name": "0709-01",
  "first_page_order": 735,
  "last_page_order": 757
}
