{ "id": 6787508, "name": "STATE OF NORTH CAROLINA v. TROY LAMONT POWELL", "name_abbreviation": "State v. Powell", "decision_date": "2013-12-03", "docket_number": "No. COA13-593", "first_page": "129", "last_page": "134", "citations": [ { "type": "official", "cite": "231 N.C. App. 129" } ], "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": "656 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640369 ], "year": 2008, "pin_cites": [ { "page": "696-97", "parenthetical": "quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999)" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0695-01" ] }, { "cite": "522 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 734", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242869 ], "year": 1999, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0734-01" ] }, { "cite": "188 N.C. App. 842", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155675 ], "year": 2008, "pin_cites": [ { "page": "845", "parenthetical": "quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0842-01" ] }, { "cite": "572 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "853-54" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251343 ], "year": 2002, "pin_cites": [ { "page": "610-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0607-01" ] }, { "cite": "587 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "905" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956989 ], "year": 2003, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0288-01" ] }, { "cite": "365 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "641" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522207 ], "year": 1988, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0353-01" ] }, { "cite": "2011 N.C. Sess. Laws 758", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 2, "opinion_index": 0 }, { "cite": "722 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "365 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154353 ], "year": 2012, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0444-01" ] } ], "analysis": { "cardinality": 556, "char_count": 13108, "ocr_confidence": 0.723, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1824589001134815 }, "sha256": "961b06472015b61ab654719acd9446ac2214c17a4f359d6413d6553b83c5cf3e", "simhash": "1:fa6de366d63ba9f2", "word_count": 2193 }, "last_updated": "2023-07-14T19:32:40.304740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR. and DILLON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TROY LAMONT POWELL" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant Troy Lamont Powell appeals from a judgment entered pursuant to his guilty plea for one count of malicious conduct by a prisoner. For the reasons stated herein, we vacate defendant\u2019s sentence and remand for entry of a corrected sentence consistent with this opinion.\nOn 7 January 2013, defendant was indicted for malicious conduct by a prisoner, a Class F felony, which was alleged to have been committed on 9 June 2012. Defendant pled guilty to the charge and stipulated to being a Prior Record Level IV offender. The prior record level stipulation is consistent with the entries on the prior record level worksheet included in the record, which indicates that defendant had a total of twelve prior record level points; two points for one prior Class H or I felony conviction, nine points for nine prior Class Al or 1 misdemeanor convictions, and one point because \u201call of the elements of the present offense [we]re included in any prior offense.\u201d\nThe trial court initially sentenced defendant to a term of 25 to 39 months imprisonment based on defendant\u2019s prior record level and his conviction for a Class F felony. However, when defendant returned to court to give his oral notice of appeal, the court purported to correct defendant\u2019s sentence as follows:\nTHE COURT: Madam Clerk, the judgment is not correct, unless I\u2019m looking at the wrong chart. I can\u2019t give him 39 months. I can give him 25, which is at the high end of the presumptive for an F. He\u2019s a Record Level IV. The maximum I can give him under the law that corresponds with 25 \u2014 -you actually have the printed chart....\n[ADA]: Yes, sir, Judge.\nTHE COURT: The date of offense is on or after December 1st, 2011; is that correct? The date of offense is 6/9/12?\n[ADA]: Yes, sir, Judge....\nTHE COURT: Just tell me if I\u2019m accurate. Is the highest [maximum] 30?\n[ADA]: For an F on the 25, 25 takes you out to 30, Judge.\nTHE COURT: Then the Court on its own motion will correct the judgment entered on 1/8/2013. . . . After examining the judgment and commitment the Court realizes that the Court gave 39 months. The 39 months would correspond to 32 months. If the Court gave, 39 months, the Court was in error. So the Court, on its own motion, corrects the judgment to comport with the statute. Give the defendant 25 months minimum, 30 months maximum in the North Carolina Department of Corrections.\nThe court then amended its written judgment to reflect a sentence of 25 to 30 months imprisonment. Defendant appealed.\nAs a preliminary matter, we note that the State filed a motion to dismiss defendant\u2019s appeal on the ground that the statute under which defendant purports to take his appeal \u2014 N.C.G.S. \u00a7 15A-1444(a2) \u2014 does not authorize an appeal of right to correct a court\u2019s determination of a defendant\u2019s prior record level points, when such a correction does not affect the court\u2019s finding of that defendant\u2019s prior record level, which comprises the entirety of defendant\u2019s sole issue on appeal. See N.C. Gen. Stat. \u00a7 15A-1444(a2)(l) (2011) (\u201cA 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 . . . [r]esults 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. . . .\u201d (emphases added)). While we agree that defendant\u2019s issue on appeal, standing alone, does not entitle defendant to an appeal as a matter of right within the express language of N.C.G.S. \u00a7 15A-1444(a2)(l), we have identified a sentencing error that appears on the face of the record that caused defendant to be sentenced to a term of imprisonment that is for a duration not authorized by the applicable version of N.C.G.S. \u00a7 15A-1340.17(d). Thus, because N.C.G.S. \u00a7 15A-1444(a2)(3) allows a defendant an appeal as a matter of right when his or her sentence \u201c[c]ontains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23forthe defendant\u2019s class of offense and prior record or conviction level,\u201d N.C. Gen. Stat. \u00a7 15A-1444(a2)(3), we deny the State\u2019s motion to dismiss.\n\u201cThe criminal judgment entered against a person in either district or superior court shall be consistent with the provisions of Article 8 IB of [Chapter 15A of the North Carolina General Statutes] and contain a sentence disposition consistent with that Article . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1331 (2011). Pursuant to N.C.G.S. \u00a7 15A-1340.17(d), after a trial court determines the minimum duration of a defendant\u2019s sentence, in order to calculate the maximum sentence for a Class F through Class I felony that is not otherwise provided by statute for a specific crime, the court should select, \u201cfor each minimum term of imprisonment in the chart in subsection (c) of this section, expressed in months, the corresponding maximum term of imprisonment, also expressed in months, is as specified in the table [in subsection (d)],\u201d in which \u201c[t]he first figure in each cell in the table is the minimum term and the second is the maximum term.\u201d N.C. Gen. Stat. \u00a7 15A-1340.17(d) (2011). Moreover, \u201c[t]riai courts are required to enter criminal judgments in compliance with the sentencing provisions in effect at the time of the offense.\u201d State v. Whitehead, 365 N.C. 444, 447, 722 S.E.2d 492, 495 (2012).\nIn the present case, as evidenced by his guilty plea, defendant committed the offense of malicious conduct by a prisoner on 9 June 2012. Therefore, in order to determine defendant\u2019s maximum sentence for this Class F felony committed on 9 June 2012, the trial court should have used the version of the sentencing grid codified in N.C.G.S. \u00a7 15A-1340.17(d) that became effective on 1 December 2011 and \u201capplie[d] to offenses committed on or after that date\u201d as a result of the amendments promulgated under the Justice Reinvestment Act of 2011. 2011 N.C. Sess. Laws 758, 762, 765, ch. 192, \u00a7 2(e), (j).\nHere, the trial court first sentenced defendant to a minimum term of 25 months imprisonment and a maximum term of 39 months imprisonment, which sentence was in compliance with the post Justice Reinvestment Act amendments to N.C.G.S. \u00a7 15A-1340.17(d) for offenses committed on or after 1 December 2011. See id. Then, at a subsequent hearing, on its own motion, the court sought to \u201ccorrect\u201d this sentence by directing defendant to serve a maximum term of 30 months imprisonment for the same minimum presumptive-range term of 25 months, because, as the colloquy excerpted above indicates, the trial court was convinced that it was \u201clooking at the wrong chart.\u201d However, when the court \u201ccorrected\u201d its sentence and changed defendant\u2019s maximum term to 30 months imprisonment, the court actually sentenced defendant to the term that was correct for offenses committed before the amendments of the Justice Reinvestment Act of 2011 took effect. See N.C. Gen. Stat. \u00a7 15A-1340.17(d) (2009). Because the trial court\u2019s sentence of amaximum term of 30 months imprisonment for a 25 month minimum term is viola-tive of the statutory mandate under the applicable sentencing guidelines of N.C.G.S. \u00a7 15A-1340.17(d) for a Class F felony committed on 9 June 2012, pursuant to N.C.G.S. \u00a7 15A-1447(f), we vacate the trial court\u2019s sentence and remand this matter to the trial court with instructions to enter its original maximum sentence of 39 months imprisonment. See N.C. Gen. Stat. \u00a7 15A-1447(f) (2011) (\u201cIf the appellate court finds that there is an error with regard to the sentence which may be corrected without returning the case to the trial division for that purpose, it may direct the entry of the appropriate sentence.\u201d). Moreover, although we recognize that our order directing the trial court to impose a 39 month maximum sentence seems, itself, to instruct the court to violate the statutory mandate prohibiting a trial court from imposing a more severe sentence than the sentence originally imposed, see N.C. Gen. Stat. \u00a7 15A-1335 (2011) (\u201cWhen a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.\u201d), our Court has recognized that, \u201cwhere the trial court is required by statute to impose a particular sentence (on resentencing) G.S. \u00a7 15A-1335 does not apply to prevent the imposition of a more severe sentence.\u201d State v. Kirkpatrick, 89 N.C. App. 353, 355, 365 S.E.2d 640, 641 (1988).\nFinally, defendant contends the trial court erred by determining that he had twelve prior record level points. While defendant concedes that the trial court correctly gave him two points for one prior Class H or I felony conviction and nine points for nine prior Class Al or 1 misdemeanor convictions, defendant asserts that the corut should have determined that he had only eleven prior record level points because defendant had no prior convictions for malicious conduct by a prisoner and had no prior convictions that had all of the elements of this offense, which was the basis for the additional prior record level point in the court\u2019s calculation in accordance with N.C.G.S. \u00a7 15A-1340.14(b)(6).\nOne of the five essential elements of malicious conduct by a prisoner is that \u201cthe defendant threw, emitted, or caused to be used as a projectile a bodily fluid or excrement at the victim.\u201d State v. Robertson, 161 N.C. App. 288, 292, 587 S.E.2d 902, 905 (2003). Because the record does not reflect that any of defendant\u2019s prior convictions also included this element, the trial court erred by assessing an' additional prior record level point to defendant\u2019s prior record level point total on this basis. However, since, as defendant concedes, subtracting this point from defendant\u2019s prior record level point total of twelve does not alter the court\u2019s determination that defendant is still a Prior Record Level IV offender, see N.C. Gen. Stat. \u00a7 15A-1340.14(c)(4) (2011) (providing that a Prior Record Level IV offender has \u201c[a]t least 10, but not more than 13 points\u201d), we conclude that such error is harmless. See, e.g., State v. Lowe, 154 N.C. App. 607, 610-11, 572 S.E.2d 850, 853-54 (2002). Nonetheless, we agree with defendant that the trial court also erroneously recorded his prior record level point total on the judgment form as \u201c17\u201d points, which would cause defendant to be a higher prior record level offender. As the State concedes, this error appears to be a clerical one, and \u201c[w]hen, on appeal, a clerical error is discovered in the trial court\u2019s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record \u2018speak the truth.\u2019 \u201d State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696-97 (2008) (quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999)). Accordingly, inasmuch as we remand this matter for entry of a corrected sentence, we further instruct the trial court to amend the judgment form to reflect defendant\u2019s correct prior record level point total.\nSentence vacated; remanded for entry of corrected sentence and for correction of clerical error on the judgment.\nJudges HUNTER, JR. and DILLON concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Kathleen N. Bolton, Assistant Attorney General, for the State.", "Michelle FormyDuval Lynch, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TROY LAMONT POWELL\nNo. COA13-593\nFiled 3 December 2013\n1. Appeal and Error \u2014 appealability\u2014prior record level points\u2014 sentencing duration error\nThe State\u2019s motion to dismiss defendant\u2019s appeal on the ground that N.C.G.S. \u00a7 15A-1444(a2) does not authorize an appeal of right to correct a court\u2019s determination of a defendant\u2019s prior record level points was denied. N.C.G.S. \u00a7 15A-1444(a2)(3) allows defendant an appeal as a matter of right when the sentence contains a term of imprisonment that is for a duration not authorized by N.C.G.S. \u00a7 15A-1340.17 or N.C.G.S. \u00a7 15A-1340.23 for the defendant\u2019s class of offense and prior record or conviction level.\n2. Sentencing \u2014 malicious conduct by prisoner \u2014 violation of statutory mandate\nDefendant\u2019s sentence for malicious conduct by a prisoner was vacated and remanded for entry of a corrected sentence. The trial court\u2019s sentence of a maximum term of 30 months imprisonment for a 25 month minimum term was violative of the statutory mandate under the applicable sentencing guidelines of N.C.G.S. \u00a7 15A-1340.17(d) for a Class F felony committed on 9 June 2012, pursuant to N.C.G.S. \u00a7 15A-1447(f).\n3. Sentencing \u2014 clerical error \u2014 prior record level points\nA malicious conduct by a prisoner case was remanded to the trial court to amend the judgment form to reflect defendant\u2019s correct prior record level point total.\nAppeal by defendant from judgment entered 8 January 2013 by Judge Milton F. Fitch, Jr. in Hertford County Superior Court. Heard in the Court of Appeals 18 November 2013.\nRoy Cooper, Attorney General, by Kathleen N. Bolton, Assistant Attorney General, for the State.\nMichelle FormyDuval Lynch, for defendant-appellant." }, "file_name": "0129-01", "first_page_order": 139, "last_page_order": 144 }