Opinion
No. COA08-1382.
Filed June 2, 2009.
Beaufort County Nos. 07CRS50444, 50939-40.
On writ of certiorari to review the judgments entered 22 July 2008 by Judge Cy A. Grant in Beaufort County Superior Court. Heard in the Court of Appeals 18 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State. Richard Croutharmel, for defendant-appellant.
On 17 March 2008, defendant Jeffrey Wayne Austin ("defendant") was indicted for three counts of possession with intent to sell and deliver cocaine and one count of possession of drug paraphernalia. The three possession with intent to sell and deliver offenses occurred on 8 February 2007, 1 March 2007, 7 March 2007, and the possession of drug paraphernalia offense occurred on 8 February 2007. On 21 July 2008, defendant entered a plea of guilty to the three above-described counts of possession with intent to sell and deliver cocaine. Defendant's plea was entered pursuant to a plea agreement. In exchange for the guilty plea, the State agreed to dismiss the possession of drug paraphernalia charge and a fourth count of possession with intent to sell and deliver, which occurred on 24 March 2007. The parties also agreed that the three convictions would be consolidated into two judgments for sentencing.
Defendant signed a transcript of plea on 21 July 2008, in which he acknowledged, under oath, that he understood the nature of his charges, that he was giving up certain rights by entering a guilty plea, that the terms of the plea agreement were correct as stated, and that he was entering the plea of his own free will and fully understood what he was doing. The transcript of plea also set forth the terms of the plea agreement and listed the total maximum punishment corresponding to defendant's guilty plea as 90 months.
At the sentencing hearing the following day, the trial court conducted a plea colloquy. The trial court asked defendant various questions regarding the voluntariness of his plea, described the terms of the plea agreement, and inquired into defendant's satisfaction with his attorney. After the State presented a factual basis for the entry of the plea, the trial court found defendant to have twenty prior record level points, corresponding to a prior record level of VI. The parties also stipulated to defendant's prior record level on a Prior Record Level Worksheet. Thereafter the trial court entered judgments pursuant to the terms of the plea agreement: the court imposed two consecutive sentences of 16-20 months active imprisonment, which are within the presumptive range for defendant's prior record level of VI and Class H felonies.
After the court rendered the judgments, defendant asked the trial court whether he could receive probation instead of an active sentence. The trial court explained that, based on defendant's prior record level, the court was not authorized to order probation under the Structured Sentencing laws. Defendant then gave notice of appeal in open court.
Defendant only raises one issue on appeal. He contends that the trial court violated N.C. Gen. Stat. § 15A-1022 (a)(6) (2007) and that this purported violation renders his plea involuntary. Pursuant to this section of our statutes, before a trial court may accept a guilty plea, defendant must be informed "of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, . . . and of the mandatory minimum sentence, if any , on the charge[.]" N.C. Gen. Stat. § 15A-1022 (a)(6) (emphasis added). This provision "is based upon constitutional principles enunciated in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274 (1969) and its progeny." State v. Bozeman, 115 N.C. App. 658, 661, 446 S.E.2d 140, 142 (1994) (citation omitted). Defendant contends that the trial court violated N.C. Gen. Stat. § 15A-1022 (a)(6) by failing to inform him that he would be required to serve an active sentence pursuant to North Carolina's Structured Sentencing laws. Our Structured Sentencing laws permit only an active punishment, not an intermediate punishment, for a Level VI offender who is convicted of a Class H felony. See N.C. Gen. Stat. § 15A-1340.17 (2007). Defendant claims that the inability of the trial court to impose an intermediate punishment is akin to a mandatory minimum sentence. Thus, defendant contends, the trial court violated N.C. Gen. Stat. § 15A-1022 (a)(6), by not informing defendant of the purported mandatory minimum sentence.
We reject defendant's assertion that he was subjected to a mandatory minimum sentence. Defendant was convicted of three counts of possession with intent to sell and deliver a controlled substance, which is subject to Structured Sentencing. See N.C. Gen. Stat. §§ 15A-1340.10 to 15A-1340.33 (2007); N.C. Gen. Stat. § 90-95 (a)(1) (2007). As this offense is subject to structured sentencing, it does not have a legislatively prescribed mandatory minimum sentence, unlike the controlled substance trafficking offenses contained in N.C. Gen. Stat. § 90-95 (h)(1)-(4b). When a defendant is convicted of a trafficking offense, the trial court must impose the specific term of imprisonment provided for in the statute and has no room to deviate, with only one narrow exception. See N.C. Gen. Stat. § 90-95 (h). By way of contrast, in defendant's case, the trial court had the discretion to impose any minimum term within the range corresponding to defendant's prior record level and class of offense. The trial court did so, properly imposing a sentence from the low end of the presumptive range.
Moreover, we note that defendant's high prior record level was the factor which lead to his active sentence. If defendant had a lower prior record level, the trial court would have had discretion to impose an intermediate punishment. And, nothing in N.C. Gen. Stat. § 15A-1022 (a)(6) requires a trial court to inquire into a defendant's prior record level before informing him of the maximum possible sentence. See State v. Byrd, 164 N.C. App. 522, 531, 596 S.E.2d 860, 865-66 (2004) ("`[T]he statutory maximum sentence for a criminal offense in North Carolina is that which results from . . . findings that the defendant falls into the highest criminal history category for the applicable class offense and that the offense was aggravated[.]'") (quoting State v. Lucas, 353 N.C. 568, 596, 548 S.E.2d 712, 731 (2001)).
Under N.C. Gen. Stat. § 15A-1022 (a)(6), defendant only needed to be informed of the maximum possible sentence. We have previously refused "to apply a technical, ritualistic approach" to the application of N.C. Gen. Stat. § 15A-1022 (a). State v. Williams, 133 N.C. App. 326, 331, 515 S.E.2d 80, 83 (1999). Here, we find the transcript of plea, which listed the maximum possible sentence, and the trial court's colloquy were sufficient to satisfy the requirements of N.C. Gen. Stat. § 15A-1022 (a)(6). The fact that the trial court did not reiterate the maximum possible sentence during the colloquy does not invalidate defendant's guilty plea. See Williams, 133 N.C. App. at 331, 515 S.E.2d at 83 (holding that the trial court's failure to inform the defendant of the maximum or minimum sentence for a Class C offense did not invalidate her guilty plea). Accordingly, we conclude that the trial court fully complied with the requirements of N.C. Gen. Stat. § 15A-1022 (a)(6). Defendant's assignment of error is overruled.
No error. Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).