{ "id": 4172325, "name": "STATE OF NORTH CAROLINA v. NATHANIEL VANDIS WILLIAMS", "name_abbreviation": "State v. Williams", "decision_date": "2009-11-03", "docket_number": "No. COA09-289", "first_page": "767", "last_page": "773", "citations": [ { "type": "official", "cite": "200 N.C. App. 767" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "672 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642776 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "690" }, { "page": "690", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0689-01" ] }, { "cite": "663 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641544, 12641545, 12641543 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/663/0855-02", "/se2d/663/0855-03", "/se2d/663/0855-01" ] }, { "cite": "362 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641257, 12641546, 12641259, 12641545 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/662/0387-01", "/se2d/663/0856-01", "/se2d/662/0387-03", "/se2d/663/0855-03" ] }, { "cite": "648 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639089 ], "year": 2007, "pin_cites": [ { "page": "561", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0556-01" ] }, { "cite": "643 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638062 ], "year": 2007, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0039-01" ] }, { "cite": "656 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640325 ], "year": 2008, "pin_cites": [ { "page": "12", "parenthetical": "citing State v. Fraley, 182 N.C. App. 683, 690, 643 S.E.2d 39, 44 (2007)" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0001-01" ] }, { "cite": "616 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633603 ], "year": 2005, "pin_cites": [ { "parenthetical": "treating defendant's appeal as petition for writ of certiorari and addressing defendant's argument that there was an insufficient factual basis supporting the entry of his plea" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0639-01" ] }, { "cite": "395 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "127" } ], "opinion_index": 0 }, { "cite": "327 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492889 ], "year": 1990, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0378-01" ] }, { "cite": "549 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "901", "parenthetical": "citing State v. Moore, 327 N.C. 378, 382, 395 S.E.2d 124, 127 (1990)" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437432 ], "year": 2001, "pin_cites": [ { "page": "341", "parenthetical": "citing State v. Moore, 327 N.C. 378, 382, 395 S.E.2d 124, 127 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0335-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(a)(1)" }, { "page": "(a)(1)" }, { "page": "(b)(1)" }, { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "185 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210461 ], "year": 2007, "pin_cites": [ { "page": "480", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0472-01" ] }, { "cite": "182 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8175550 ], "year": 2007, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0683-01" ] }, { "cite": "188 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155648 ], "year": 2008, "pin_cites": [ { "page": "380", "parenthetical": "citing State v. Fraley, 182 N.C. App. 683, 690, 643 S.E.2d 39, 44 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0365-01" ] }, { "cite": "605 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412436 ], "year": 2004, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0582-01" ] }, { "cite": "592 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "defendant's appeal treated as writ of certiorari and defendant's challenge to the procedures employed in accepting his guilty plea addressed" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8916197 ], "year": 2004, "pin_cites": [ { "parenthetical": "defendant's appeal treated as writ of certiorari and defendant's challenge to the procedures employed in accepting his guilty plea addressed" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0191-01" ] }, { "cite": "172 N.C. App. 839", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321723 ], "year": 2005, "pin_cites": [ { "parenthetical": "treating defendant's appeal as petition for writ of certiorari and addressing defendant's argument that there was an insufficient factual basis supporting the entry of his plea" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0839-01" ] }, { "cite": "359 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "462", "parenthetical": "defendant not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea" } ], "opinion_index": 0 }, { "cite": "320 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728334 ], "year": 1987, "pin_cites": [ { "page": "601", "parenthetical": "defendant not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0596-01" ] } ], "analysis": { "cardinality": 577, "char_count": 13681, "ocr_confidence": 0.762, "pagerank": { "raw": 8.841659136963344e-08, "percentile": 0.4982518285815119 }, "sha256": "6baf622140a0f046b8e41132be2b21d83ad7681b0844e0f06912d37483466783", "simhash": "1:82299262fb3b4d44", "word_count": 2246 }, "last_updated": "2023-07-14T15:34:12.558956+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR. and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. NATHANIEL VANDIS WILLIAMS" ], "opinions": [ { "text": "STEPHENS, Judge.\nI. Procedural History and Factual Background\nOn 18 September 2008, Defendant Nathaniel Vandis Williams was arrested on charges of possession with intent to sell and deliver a controlled substance and sale and delivery of that controlled substance. On 3 November 2008, Defendant waived indictment and entered a guilty plea to an information alleging one count of delivery of the controlled substance, cocaine. On the same day, the State dismissed the charges of possession with intent to sell and deliver a controlled substance and sale of a controlled substance. In Wake County District Court, Defendant stipulated to being a prior record Level IV for sentencing purposes, and the trial court so found. The trial court sentenced Defendant to 11 to 14 months imprisonment and recommended participation in the DART program. From the judgment entered upon his guilty plea, Defendant appeals.\nII. Discussion\nDefendant first argues that the trial judge erred in accepting his guilty plea as there was no factual basis for his plea in violation of N.C. Gen. Stat. \u00a7 15A-1022. We disagree.\nWe note first that Defendant does not have an appeal as a matter of right to challenge the trial court\u2019s acceptance of his guilty plea. N.C. Gen. Stat. \u00a7 15A-1444 (2007); see State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987) (defendant not entitled as a matter of right to appellate review of his contention that the trial court improperly accepted his guilty plea). However, pursuant to N.C. R. App. R 21, Defendant has petitioned this Court for a writ of certiorari. We elect to grant Defendant\u2019s petition and review the issue. See State v. Poore, 172 N.C. App. 839, 616 S.E.2d 639 (2005) (treating defendant\u2019s appeal as petition for writ of certiorari and addressing defendant\u2019s argument that there was an insufficient factual basis supporting the entry of his plea); State v. Rhodes, 163 N.C. App. 191, 592 S.E.2d 731 (2004) (defendant\u2019s appeal treated as writ of certiorari and defendant\u2019s challenge to the procedures employed in accepting his guilty plea addressed).\nN.C. Gen. Stat. \u00a7 7A-272 provides:\nWith the consent of the presiding district court judge, the prosecutor, and the defendant, the district court has jurisdiction to accept a defendant\u2019s plea of guilty or no contest to a Class H or I felony if:\n(1) The defendant is charged with a felony in an information filed pursuant to G.S. 15A-644.1, the felony is pending in district court, and the defendant has not been indicted for the offense ....\nN.C. Gen. Stat. \u00a7 7A-272(c)(1) (2007). A defendant who pleads guilty in district court pursuant to N.C. Gen. Stat. \u00a7 7A-272(c)(1) shall enter that plea to an information. N.C. Gen. Stat. \u00a7 15A-644.1 (2007). An information \u201cis a written accusation by a prosecutor . . . charging a person represented by counsel with the commission of one or more criminal offenses.\u201d N.C. Gen. Stat. \u00a7 15A-641(b) (2007). The information must contain (1) the name of the district court in which it is filed, (2) the title of the action, (3) criminal charges pleaded as provided in Article 49 of Chapter 15A, and (4) the signature of the prosecutor, and must also contain or have attached the waiver of indictment. N.C. Gen. Stat. \u00a7 15A-644(a) and (b); N.C. Gen. Stat. \u00a7 15A-644.1.\nMoreover, pursuant to N.C. Gen. Stat. \u00a7 15A-1022, \u201c[t]he judge may not accept a plea of guilty . . . without first determining that there is a factual basis for the plea. This determination may be based upon ... [a] statement of the facts by the prosecutor.\u201d N.C. Gen. Stat. \u00a7 15A4022(c) (2007).\nIn this case, Defendant pled guilty to an information alleging delivery of cocaine, a controlled substance. At the hearing on Defendant\u2019s guilty plea, the prosecutor made a statement of the facts which supported the charge of delivery of cocaine. When asked by the trial court if Defendant had anything to add regarding the factual basis, defense counsel answered, \u201cNothing on the factual basis, Your Honor.\u201d The trial court then determined that, \u201cafter consideration of the record, the evidence presented, the answers of the [Defendant, the statements of the lawyer for the [Defendant, and the District Attorney, the Court will find that there is a factual basis for the entry of the plea[.]\u201d Defendant now contends that there was no factual basis for the plea as there was a fatal variance between the facts alleged in the \u201ccharging instrument\u201d and the facts as stated by the prosecutor. Defendant\u2019s argument is misplaced.\nThe arrest warrant states that Defendant sold and delivered cocaine to \u201cDetective T. Ross[.]\u201d The information refers to \u201cTerry Ross\u201d as the person to whom Defendant was charged with delivering cocaine. At the hearing on Defendant\u2019s guilty plea, the prosecutor stated: \u201c[0]n a Thursday at about 12:40 in the afternoon, [Raleigh police] utilized the named informant in the charging document to make controlled purchases of cocaine. Detective Gibney [sic] utilized this CI.\u201d Defendant argues it is unlikely that the \u201cnamed informant\u201d referred to in the prosecutor\u2019s statement is a police officer, as the arrest warrant suggests.\nHowever, Defendant entered a plea of guilty to an information, as required by N.C. Gen. Stat. \u00a7 15A-644.1. Thus, the information, not the arrest warrant, was the \u201ccharging instrument\u201d in this case. Furthermore, there is no evidence before this Court that \u201cTerry Ross\u201d and the \u201cnamed informant\u201d were not the same person. Accordingly, we conclude there was no variance, much less a fatal variance, between the allegations contained in the information and the prosecutor\u2019s stated factual basis for the plea agreement. Thus, the trial court did not err in accepting Defendant\u2019s plea. Defendant\u2019s assignment of error is overruled.\nDefendant next argues that the trial court erred in determining that Defendant was a Level IV offender for sentencing purposes. Specifically, Defendant contends that the trial court erred in adding an additional sentencing point on the ground that one of Defendant\u2019s prior offenses included all of the elements of his present conviction for delivery of cocaine. We disagree.\nUnder N.C. Gen. Stat. \u00a7 15A-1444, \u201ca defendant who has pled guilty has ... the right to appeal... whether the sentence results from an incorrect finding of the defendant\u2019s prior record level under N.C. Gen. Stat. \u00a7 15A-1340.14[.]\u201d State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004). A defendant\u2019s prior record level \u201cis determined by calculating the sum of the points assigned to each of the offender\u2019s prior convictions that the court . . . finds to have been proved in accordance with [section 15A].\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(a) (2007). Furthermore, an additional point is added \u201c[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted[.]\u201d N.C. Gen. Stat., \u00a7 15A-1340.14(6) (2007).\nWe note first that Defendant stipulated to being a Level IV offender and specifically stipulated to the addition of one point to his prior record level based on \u201cthe elements of this crime [being] associated with previous crimes[.]\u201d However, while \u201ca stipulation by [a] defendant may be sufficient to prove [the] defendant\u2019s prior record level, the trial court\u2019s assignment of a prior record level is a conclusion of law, which we review de novo.\u201d State v. Mack, 188 N.C. App. 365, 380, 656 S.E.2d 1, 12 (2008) (citing State v. Fraley, 182 N.C. App. 683, 690, 643 S.E.2d 39, 44 (2007)). \u201cStipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate . . . .\u201d State v. Prush, 185 N.C. App. 472, 480, 648 S.E.2d 556, 561 (2007) (citations and quotation marks omitted), disc. review denied, 362 N.C. 369, 663 S.E.2d 855 (2008). Furthermore, a trial court\u2019s determination of whether all the elements of a present offense are included in any prior offense involves the resolution of a matter of law, reviewable de novo on appeal. Id. Accordingly, we must review the trial court\u2019s calculation of Defendant\u2019s prior record level, despite Defendant\u2019s stipulation at the plea hearing. We conclude that the trial court correctly determined that Defendant was a Level IV offender by adding one point to his prior record level based on N.C. Gen. Stat. \u00a7 15A-1340.14(6).\nWe find support for our conclusion in State v. Ford, - N.C. App. -, 672 S.E.2d 689 (2009). In Ford, defendant argued that the trial court erred in determining his prior record level as the court impermissibly assigned one prior conviction point on the basis that all of the elements of attempted felonious larceny, of which defendant was found guilty, were included in a prior offense for which defendant was convicted. Specifically, defendant contended that \u201cneither of [his] prior felonious larceny convictions included, as \u2018elements\u2019 of the crimes, that [defendant took property valued over $ 1,000[,]\u201d id. at, 672 S.E.2d at 690, as required by N.C. Gen. Stat. \u00a7 14-72(a) which states that \u201c[l]arceny of goods of the value of more than one thousand dollars ($ 1,000) is a Class H felony.\u201d Id. (quoting N.C. Gen. Stat. \u00a7 14-72(a)).\nThis Court, noting that this contention had already \u201cbeen addressed and rejected by prior decisions of our courts[,]\u201d id., explained:\nIn North Carolina, larceny remains a common law crime and is defined as \u201c \u2018the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter\u2019s consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker\u2019s own use.\u2019 \u201d Our Supreme Court has held that \u201c[N.C. Gen. Stat. \u00a7] 14-72 relates solely to punishment for the separate crime of larceny,\u201d and this Court has concluded that \u201c[t]he statutory provision upgrading misdemeanor larceny to felony larceny does not change the nature of the crime; the elements of proof remain the same.\u201d\nId. (internal citations omitted). Thus, this Court concluded that \u201cfor purposes of N.C. Gen. Stat. \u00a7 15A-1340.14(b)(6), it matters not under what provision of N.C. Gen. Stat. \u00a7 14-72 [defendant's prior felony larceny convictions were established\u201d and held that the trial court properly determined defendant\u2019s prior record level. Id.\nN.C. Gen. Stat. \u00a7 90-95(a)(l) provides:\n(a) Except as authorized by this Article, it is unlawful for any person:\n. (1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substancef.]\nN.C. Gen. Stat. \u00a7 90-95(a)(1) (2007). \u201cTo prove sale and/or delivery of a controlled substance, the State must show a transfer of a controlled substance by either sale or delivery, or both.\u201d State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001) (citing State v. Moore, 327 N.C. 378, 382, 395 S.E.2d 124, 127 (1990)).\nIn this case, Defendant pled guilty to delivery of a controlled substance, identified as cocaine, \u201cin violation of N.C. [Gen. Stat.] \u00a7 90-95(a)(1).\u201d Cocaine is included in Schedule II of the North Carolina Controlled Substances Act. Defendant was previously convicted of delivery of a controlled substance, marijuana, in violation of N.C. Gen. Stat. \u00a7 90-95(a)(1). Marijuana is included in Schedule VI of the North Carolina Controlled Substances Act.\nWhile delivery of a Schedule II controlled substance is punishable under N.C. Gen. Stat. \u00a7 90-95(b)(1) and delivery of a Schedule VI controlled substance is punishable under N.C. Gen. Stat. \u00a7 90-95(b)(2), as in Ford, the statutory provision for punishing delivery of cocaine differently from delivery of marijuana \u201c \u2018does not change the nature of the crime; the elements of proof remain the same.\u2019 \u201d Ford, - N.C. App. at \u2014, 672 S.E.2d at 690 (citation omitted). Thus, as in Ford, for purposes of N.C. Gen. Stat. \u00a7 15A-1340.14(b)(6), it matters not under what provision of N.C, Gen. Stat. \u00a7 90-95 Defendant\u2019s prior conviction for delivery of a controlled substance was punishable. Accordingly, we conclude that the trial court properly determined Defendant\u2019s prior record level. The assignment of error upon which Defendant\u2019s argument is based is overruled.\nAFFIRMED.\nJudges HUNTER, JR. and BEASLEY concur.\n. Where an appeal from a plea authorized by N.C. Gen. Stat. \u00a7 7A-272(c) lies, such appeal is to the appellate division. N.C. Gen. Stat. \u00a7 7A-272(d) (2007).\n. The omission of the signature of the prosecutor is not a fatal defect. N.C. Gen. Stat. \u00a7\u00a7 15A-644(a)(4) and (b) (2007).\n. The addition of one point pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14(6) elevated Defendant from a Level III to a Level IV offender.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.", "Ryan McKaig for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NATHANIEL VANDIS WILLIAMS\nNo. COA09-289\n(Filed 3 November 2009)\n1. Indictment and Information\u2014 guilty plea \u2014 information\nThe Court of Appeals granted defendant\u2019s petition for writ of certiorari under N.C. R. App. P. 21 in a delivery of a controlled substance case and concluded that the trial court did not err by accepting defendant\u2019s guilty plea because there was no variance, much less a fatal variance, between the allegations contained in the information and the prosecutor\u2019s stated factual basis for the plea agreement.\n2. Sentencing\u2014 prior record level \u2014 delivery of controlled substance\nThe trial court did not err in a' delivery of a controlled substance case by concluding that defendant was a Level IV offender for sentencing purposes.\nAppeal by Defendant from judgment entered 3 November 2008 by Judge Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals 3 September 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.\nRyan McKaig for Defendant." }, "file_name": "0767-01", "first_page_order": 793, "last_page_order": 799 }