{ "id": 4233200, "name": "STATE OF NORTH CAROLINA v. RONNIE NORVEL MUNGO, Defendant", "name_abbreviation": "State v. Mungo", "decision_date": "2011-07-19", "docket_number": "No. COA10-718", "first_page": "400", "last_page": "406", "citations": [ { "type": "official", "cite": "213 N.C. App. 400" } ], "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": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "473 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. App. 639", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914748 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0639-01" ] }, { "cite": "157 L.Ed. 2d 84", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "540 U.S. 846", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8926209, 8926531, 8926340, 8926691, 8926634, 8926475, 8926154, 8926381, 8926193, 8926578, 8926133, 8926294, 8926265, 8926429 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0846-04", "/us/540/0846-11", "/us/540/0846-07", "/us/540/0846-14", "/us/540/0846-13", "/us/540/0846-10", "/us/540/0846-02", "/us/540/0846-08", "/us/540/0846-03", "/us/540/0846-12", "/us/540/0846-01", "/us/540/0846-06", "/us/540/0846-05", "/us/540/0846-09" ] }, { "cite": "577 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511488, 1511204, 1511286, 1511583 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0682-01", "/nc/356/0682-02", "/nc/356/0682-03", "/nc/356/0682-04" ] }, { "cite": "573 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "154 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9252072 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/154/0737-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "691 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "681 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168838 ], "year": 2009, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0631-01" ] }, { "cite": "707 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "778-79" } ], "opinion_index": 0 }, { "cite": "499 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "196" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650281 ], "year": 1998, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0366-01" ] } ], "analysis": { "cardinality": 622, "char_count": 14899, "ocr_confidence": 0.741, "pagerank": { "raw": 8.942891032983278e-08, "percentile": 0.5011469780670611 }, "sha256": "a91eac2735bd301f3a6fc9aa56b6bd4b0030cde41c28c0280bbfaab11e7d81b3", "simhash": "1:930b23625f2b8aa5", "word_count": 2482 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and HUNTER, JR., Robert N. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RONNIE NORVEL MUNGO, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals on various grounds. For the following reasons, we find that the trial court did not err in calculating defendant\u2019s prior record level and dismiss defendant\u2019s other arguments on appeal.\nI. Background\nDefendant was indicted for felonious breaking or entering, larceny after breaking or entering, safecracking, and obtaining the status of habitual felon. Defendant pled guilty to all of the charges against him. During defendant\u2019s plea hearing the State provided a copy of defendant\u2019s Division of Criminal Information (\u201cDCI\u201d) record to the trial court and asked that he be sentenced as \u201ca Prior Record Level VI for habitual sentencing[.]\u201d Defendant did not stipulate to his prior record level but also did not raise any objection to the prior record information, including his prior convictions, as presented by the State. Defendant did however disagree with the points calculated determining his prior record level, and after a lengthy discussion with both his attorney and the trial judge regarding how his points were calculated, the trial court agreed with the State and concluded that defendant had a prior record level of VI. The trial court sentenced defendant within the presumptive range to a minimum of 140 months and a maximum of 177 months imprisonment, with credit for 278 days of pretrial confinement. The trial court also recommended defendant pay $798.35 in restitution.\nOn 16 February 2010, the trial court made appellate entries noting that defendant had given notice of appeal. However, the transcript of defendant\u2019s plea does not indicate that defendant gave oral notice of appeal, and the record on appeal does not contain a written notice of appeal. Defendant\u2019s brief states that his appeal is taken pursuant to N.C. Gen. Stat. \u00a7\u00a7 7A-27(b), 15A-1444(al) and 15A-1444(a2), but also requests in the alternative that this Court treat his brief as a petition for certiorari pursuant to N.C. Gen. Stat. \u00a7 15A-1444(e).\nII. Right to Appellate Review\nDefendant raises five issues in his brief, but before addressing the substance of defendant\u2019s issues we must first determine whether defendant has a right to appeal or a corresponding right to review via a petition for certiorari as to each issue. Defendant contends that: (1) \u201cthere was insufficient evidence that. . . [defendant] understanding^ and knowingly entered his plea[;]\u201d (2) there was no admissible evidence to support the award of restitution; (3) his prior record level was calculated incorrectly; (4) he was denied effective assistance of counsel due to the trial court\u2019s denial of his motion to continue in order to allow him time to retain counsel; and (5) his constitutional rights to a fair and impartial trial were denied by the trial court\u2019s \u201cinappropriate comments\u201d about his prior record. (Original in all caps.)\nN.C. Gen. Stat. \u00a7 7A-27(b) does not provide a route for appeals from guilty pleas, see N.C. Gen. Stat. \u00a7 7A-27(b) (2007), we thus turn to defendant\u2019s next basis for appeal N.C. Gen. Stat. \u00a7 15A-1444. N.C. Gen. Stat. \u00a7 15A-1444 provides in pertinent part:\n(al) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant\u2019s prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.\n(a2) A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed:\n(1) Results from an incorrect finding of the defendant\u2019s prior record level under G.S. 15A-1340.14 or the defendant\u2019s prior conviction level under G.S. 15A-1340.21;\n(2) Contains a type of sentence disposition that is not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level; or\n(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level.\n(d) Procedures for appeal to the appellate division are as provided in this Article, the rules of the appellate division, and Chapter 7A of the General Statutes. The appeal must be perfected and conducted in accordance with the requirements of those provisions.\n(e) Except as provided in subsections (al) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the 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.....\n(g) Review by writ of certiorari is available when provided for by this Chapter, by other rules of law, or by rule of the appellate division.\nN.C. Gen. Stat. \u00a7 15A-1444 (2007).\nDefendant has no right to appeal under N.C. Gen. Stat. \u00a7 15A-1444(al), as his minimum sentence of imprisonment falls \u201cwithin the presumptive range for the defendant\u2019s prior record or conviction level and class of offense.\u201d N.C. Gen. Stat. \u00a7 15A-1444(aI).\nAs to N.C. Gen. Stat. \u00a7 15A-1444(a2), this Court has noted that\n[a] plain reading of this subsection indicates that the issues set out may be raised on appeal by any defendant who has pled guilty to a felony or misdemeanor in superior court. However, we believe the right to appeal granted by this subsection is not without limitations.\nIf a defendant who has pled guilty does not raise the specific issues enumerated in subsection (a2) and does not otherwise have a right to appeal, his appeal should be dismissed. Furthermore, if during plea negotiations the defendant essentially stipulated to matters that moot the issues he could have raised under subsection (a2), his appeal should be dismissed.\nState v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 196 (1998).\nDefendant has raised one issue regarding N.C. Gen. Stat. \u00a7 15A-1444(a2), particularly N.C. Gen. Stat. \u00a7 15A-1444(a2)(l); however, defendant has no right to appeal under N.C. Gen. Stat. \u00a7 15A-1444(a2) as to the other issues. Accordingly, as to all of defendant\u2019s issues except the one regarding calculation of his prior record, appellate review could be only by certiorari, under N.C. Gen. Stat. \u00a7 15A-1444(e). See N.C. Gen. Stat. \u00a7 15A-1444(e).\nPursuant to N.C. Gen. Stat. \u00a7 15A-1444(g), we now consider our own rules regarding certiorari. See N.C. Gen. Stat. \u00a7 15A-1444(g). Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure governs when we may allow review by certiorari:\nThe writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals 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 N.C.G.S. \u00a7 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.\nN.C.R. App. P. Rule 21(a)(1).\nAs noted above, defendant has a right to appeal only as to the calculation of his prior record level. See generally N.C. Gen. Stat. \u00a7 15A-1444(a2)(l). However, though the record contains appellate entries, it provides no written notice of appeal, and the transcript does not contain an oral notice of appeal. Accordingly, defendant has lost his right to appeal through his failure to comply with North Carolina Rule of Appellate Procedure 4 which requires either oral or written notice of appeal. See N.C.R. App. P. 4(a); see also State v. Hughes, - N.C. App. -, -, 707 S.E.2d 777, 778-79 (2011) (\u201c[T]he fact that the record contains appellate entries does not, without more, suffice to show that Defendant properly appealed from the trial court\u2019s judgment to this Court. Thus, since the record simply does not establish that Defendant ever gave notice of appeal from the trial court\u2019s judgment as required by N.C.R. App. P. 4, we lack jurisdiction to consider Defendant\u2019s appeal, which must, therefore, be dismissed.\u201d). As defendant failed \u201cto take timely action\u201d to preserve his right to appeal, we grant defendant\u2019s request to consider his brief as a petition for certiorari and allow review of the issue as to the calculation of his prior record level. See N.C.R. App. P. 21(a)(1). As to the remaining issues raised in defendant\u2019s brief, defendant had no right to appeal from these issues, and we therefore deny defendant\u2019s request to review these by certiorari. See N.C. Gen. Stat. \u00a7 15A-1444; N.C.R. App. P. 21(a)(1).\nIII. Prior Record Level\nDefendant argues that \u201cthe trial court erred in sentencing . . . [him] due to an error in the calculation of. . . [his] prior record level points.\u201d (Original in all caps.) We review the calculation\nof an offender\u2019s prior record level [as] a conclusion of law that is subject to de novo review on appeal. It is not necessary that an objection be lodged at the sentencing hearing in order for a claim that the record evidence does not support the trial court\u2019s determination of a defendant\u2019s prior record level to be preserved for appellate review.\nState v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009), disc. review denied, -N.C. -, 691 S.E.2d 414 (2010).\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) provides:\nA prior conviction shall be proved by any of the following methods:\n(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.\nThe State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction. The original or a copy of the court records or a copy of the records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts, bearing the same name as that by which the offender is charged, is prima facie evidence that the offender named is the same person as the offender before the court, and that the facts set out in the record are true. For purposes of this subsection, \u201ca copy\u201d includes a paper writing containing a reproduction of a record maintained electronically on a computer or other data processing equipment, and a document produced by a facsimile machine. The prosecutor shall make all feasible efforts to obtain and present to the court the offender\u2019s full record. Evidence presented by either party at trial may be utilized to prove prior convictions.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) (2007).\nDefendant does not dispute that the DCI record as provided under N.C. Gen. Stat. \u00a7 15A-1340.14(f)(3) was submitted to the trial court or that the DCI record is inaccurate in any way. Accordingly, the State met its burden of proof under N.C. Gen. Stat. \u00a7 15A-1340.14(f)(3) as to defendant\u2019s prior convictions. See N.C. Gen. Stat. \u00a7 15A-1340.14(f)(3).\nSpecifically, defendant argues that (1) \u201c[b]y using the H felonies for the habitual felon indictment and the G felonies for the prior record level, the State increased . . . [defendant\u2019s] prior record points by 12 instead of 8 record points[,]\u201d and (2) \u201cby using felonies for prior record point level calculations when convictions obtained the same week were used for habitual felon sentence enhancement, the State has violated the spirit of N.C. Gen. Stat. \u00a7 14-7.6 (2009).\u201d However, as to the two directly aforementioned issues defendant also notes, respectively that (1)\nthis Court [in State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208 (2002), disc. review denied, 356 N.C. 682, 577 S.E.2d 897, cert. denied, 540 U.S. 846, 157 L.Ed. 2d 84 (2003),] has previously determined that the legislature did not limit a prosecutor\u2019s discretion in choosing which prior felony convictions should be used for habitual felon calculations rather than prior record calculations, but nonetheless [defendant] requests this Court review this issue again in light of the prejudice to . . . [defendant] in this case[,]\nand (2) \u201c[c]ounsel acknowledges this Court\u2019s holding otherwise in State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670 (1996), but respectively requests that this Court review the issue again in light of the substantial prejudice it creates for . . . [defendant\u2019s] sentencing purposes.\u201d In other words, defendant acknowledges that his arguments are contrary to case law, but asks that we reconsider his issues in light of his particular circumstances. We remind defendant that we are bound by our prior decisions. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d). Accordingly, this argument is overruled.\nIV. Conclusion\nFor the reasons stated above, the trial court did not err in its calculation of defendant\u2019s prior record level and defendant\u2019s appeal as to any other issues arising out of his plea is dismissed.\nNO ERROR IN PART; DISMISSED IN PART.\nJudges CALABRIA and HUNTER, JR., Robert N. concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Larissa S. Williamson, for the State.", "Hartsell & Williams, RA., by Christy E. Wilhelm, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RONNIE NORVEL MUNGO, Defendant\nNo. COA10-718\n(Filed 19 July 2011)\n1. Appeal and Error\u2014 no right of appeal \u2014 petition for certiorari \u2014 granted for one issue \u2014 denied for remaining issues\nDefendant in a felonious breaking or entering, larceny after breaking or entering, safecracking, and habitual felon case failed to take timely action to preserve his right to appeal. Defendant\u2019s request to consider his brief as a petition for certiorari and allow review of the calculation of his prior record level was granted. As defendant had no right to appeal the remaining issues raised in his brief, defendant\u2019s request to review these by certiorari was denied.\n2. Sentencing\u2014 prior record level \u2014 calculation not erroneous\nThe trial court did not err in a felonious breaking or entering, larceny after breaking or entering, safecracking, and habitual felon case in its calculation of defendant\u2019s prior record level.\nAppeal by defendant from judgment entered on 8 February 2010 by Judge Yvonne Mims Evans in Superior Court, Mecklenburg County. Heard in the Court of Appeals 12 January 2011.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Larissa S. Williamson, for the State.\nHartsell & Williams, RA., by Christy E. Wilhelm, for defendant-appellant." }, "file_name": "0400-01", "first_page_order": 410, "last_page_order": 416 }