State v. Bailey

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-597 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 STATE OF NORTH CAROLINA v. Buncombe County Nos. 11 CRS 345 11 CRS 52339 KIM ARTHUR BAILEY Appeal by defendant from judgment entered 5 December 2011 by Judge Court. Sharon Tracey Barrett in Buncombe County Superior Heard in the Court of Appeals 22 October 2012. Attorney General Roy Cooper, by Special General Karen A. Blum, for the State. Deputy Attorney Daniel F. Read for defendant appellant. McCULLOUGH, Judge. On 5 December 2011, defendant pled guilty to assault inflicting serious bodily injury and to having attained habitual felon status. The trial court sentenced defendant in the mitigated range to a term of 101 to 132 months imprisonment. On 13 December 2011, defendant filed written notice of appeal. -2Defendant first contends the trial court erred by sentencing him to a maximum term of 132 months when the correct maximum term is 131 months. The applicable The State concedes and we agree. version of section 15A-1340.17 allowed a maximum sentence of 131 months for a minimum sentence of 101 months. court N.C. Gen. Stat. § 15A-1340.17 (2009).1 sentenced imprisonment. defendant to a maximum term Here, the trial of The trial court erred in doing so. 132 months Accordingly, we remand for entry of a maximum sentence of 131 months. Defendant next contends the trial court erred by finding as fact that offender. he was an habitual breaking and entering status Defendant specifically contends there was nothing in the record or the evidence about breaking and entering. The State concedes and we agree. Defendant status. pled guilty to having attained habitual felon The trial court adjudged [defendant] to be a habitual felon to be sentenced as a Class C felon pursuant to Article II of Chapter 14 of the general statutes[.] 1 However, the trial N.C. Gen. Stat. § 15A-1340.17 was amended in 2011 by Session Law 2011-192. The amendment became effective on 1 December 2011 and applied to offenses committed on or after that date. Under the amended statute, a minimum sentence of 101 months has a corresponding maximum sentence of 134 months. Justice Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192, § 2.(f)(j). In this case, the date of offense of 1 March 2011 is prior to the effective date of the amendment. -3court checked box Commitment form. discovered in the 4 instead When, trial on of box 3 appeal, court s on a the Judgment clerical judgment or and error order, is it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth. 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) (quoting State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956))). Accordingly, we remand for correction of the clerical error. Finally, defendant contends the trial court committed constitutional error by sentencing him as an habitual felon. Specifically, defendant minimum a for minor contends domestic his crime sentence and for of 101 someone months with a primary history in the previous two decades of property and drug crime, was clearly excessive. [U]nder N.C.G.S. § 15A-1444(e), a defendant who has entered a plea of guilty is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant has made an unsuccessful motion to withdraw the guilty plea. State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870 -4(2002). Defendant s contention that his sentence constitutes cruel and unusual punishment is not an issue for which defendant has an appeal of right. A defendant, however, may petition the appellate division for review by writ of certiorari. Stat. § 15A-1444(e) (2011). N.C. Gen. In this case, defendant requests that this Court grant certiorari to review the issue. Our Supreme Court has held that our legislature has acted within constitutionally legislation designed to permissible identify bounds habitual authorize enhanced punishment as provided. N.C. 110, unusual 118, for the 326 S.E.2d sentence 249, in a 253 in enacting criminals and to State v. Todd, 313 (1985). It is highly non-capital case to be disproportionate that it violates the Eighth Amendment. so State v. Ledwell, 171 N.C. App. 314, 321, 614 S.E.2d 562, 567 (2005). We decline to grant certiorari to review this issue. Remanded for entry of the correct maximum sentence and for correction of the clerical error regarding defendant s habitual offender status. Judges HUNTER (Robert C.) and CALABRIA concur. Report per Rule 30(e).

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