State v. Dilworth ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-856
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Guilford County
No. 11 CRS 69355
STEVYN JAMAL DILWORTH
Appeal by defendant from judgment entered 24 April 2012 by
Judge A. Robinson Hassell in Guilford County Superior Court.
Heard in the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly N. Callahan, for the State.
Guy J. Loranger for defendant-appellant.
ELMORE, Judge.
I. Background
Defendant was found guilty of simple assault in Guilford
County District Court on 7 July 2011. He appealed to superior
court and pled guilty to the offense on 24 April 2012. The
trial court sentenced defendant as a prior conviction level III
to imprisonment for a term of forty-five days. His sentence was
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suspended, and defendant was placed on unsupervised probation
for twelve months. Defendant appeals.
II. Analysis
a.) Writ of Certiorari
We first note that the State filed a motion to dismiss the
appeal on 26 September 2013 on the grounds that defendant could
not raise any appealable issue pursuant to N.C. Gen. Stat. §
15A-1444 (2013). Defendant filed a response to the motion to
dismiss and a petition for writ of certiorari. In its response
brief to defendant’s writ of certiorari, the State additionally
noted a basis for dismissal of the appeal in that defendant’s
“handwritten notice of appeal failed to designate the judgment
or order from which appeal was taken[.]” While we disagree with
the State’s contention that defendant could not raise any
appealable issue, we agree that since defendant’s appeal was
defective, no proper timely notice of appeal was given, and thus
the appeal should be dismissed. However, this Court may, in its
discretion, issue a writ of certiorari “when the right to
prosecute an appeal has been lost by failure to take timely
action[.]” N.C.R. App. P. 21(a)(1). Thus, in our discretion,
we allow defendant’s petition. See State v. Gardner, ___ N.C.
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App. ___, ___, 736 S.E.2d 826, 829 (2013) (“[T]his Court has
generally granted certiorari under N.C.R. App. P. 21(a)(1) when
a defendant has pled guilty, but lost the right to appeal the
calculation of her prior record level through failure to give
proper oral or written notice.”)
b.) Prior Conviction Level
Defendant first argues that the trial court erred by
including a criminal contempt adjudication as a conviction in
determining defendant’s prior conviction level. We find
harmless error as to this issue.
We review de novo a trial court’s assignment of a prior
conviction level. State v. Fraley, 182 N.C. App. 683, 691, 643
S.E.2d 39, 44 (2007). We apply harmless error analysis to a
trial court’s erroneous calculation thereof. State v. Lindsay,
185 N.C. App. 314, 316, 647 S.E.2d 473, 474 (2007). The
determination of the prior conviction level of a misdemeanant is
made by calculating the number of the offender’s prior
convictions that the trial court finds proven in accordance with
N.C. Gen. Stat. § 15A-1340.21(c). N.C. Gen. Stat. § 15A-
1340.21 (2013). The trial court may place the offender at one
of the following three levels based upon the number of prior
convictions of either a felony or misdemeanor offense: (1) Level
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I if the offender has zero prior convictions; (2) Level II if
the offender has at least one but not more than four prior
convictions; or (3) Level III if the offender has five or more
convictions. N.C. Gen. Stat. § 15A-1340.21(b). If an offender
is convicted of more than one offense in a single session of
district court, or single week of superior court or foreign
jurisdiction court, then only one of the convictions may be used
to determine the prior conviction level. N.C. Gen. Stat. § 15A-
1340.21(d).
Defendant’s counsel stipulated to seven prior convictions
listed on the sentencing worksheet, including a conviction for
criminal contempt. Of those seven, two are deducted pursuant to
N.C. Gen. Stat. § 15A-1340.21 because they occurred during the
same session of court as another conviction. Of the remaining
five convictions, defendant only challenges inclusion of the
conviction for criminal contempt. Defendant’s challenge is well
taken because we have held that an adjudication of criminal
contempt is not a conviction of a crime and is not includable as
a prior conviction for sentencing purposes. See State v.
Reaves, 142 N.C. App. 629, 636, 544 S.E.2d 253, 258 (2001).
Deduction of the improperly included offense reduces defendant’s
total number of prior convictions to four, and thus defendant
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should have been classified as a Prior Conviction Level II
instead of III.
Having concluded that the trial court erred in its
determination of the prior conviction level, we must now decide
whether the error is harmless. We have held that an error in
the calculation of felony prior record level points is harmless
or not prejudicial if the sentence imposed by the trial court is
within the range established for the correct prior record level.
See State v. Ledwell, 171 N.C. App. 314, 321, 614 S.E.2d 562,
567 (2005), cert. dismissed, ___ N.C. ___, 699 S.E.2d 639, cert.
denied, ___ N.C. ___, 702 S.E.2d 503 (2010) (defendant, who
should have been sentenced at a prior record level of V for a
Class C felony, “suffered no prejudice, as his sentence was
within the range for a Class C level V felon”). Simple assault
is a Class 2 misdemeanor. N.C. Gen. Stat. § 14-33(a) (2013).
For a Class 2 misdemeanor conviction, a Level II offender may be
subject to a sentence of 1-45 days community/intermediate
punishment whereas a Level III offender may be subject to a
sentence of 1-60 days community/intermediate/active punishment.
See N.C. Gen. Stat. § 15A-1340.23(c) (2013). The suspended
sentence of 45 days imposed by the trial court falls within the
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punishment range permitted for the lesser conviction level.
Thus, defendant has not been prejudiced.
c.) Ineffective Assistance of Counsel
We next turn to defendant’s claim that he was denied
effective assistance of counsel because the record “suggests”
counsel failed to properly advise defendant of the risks and
consequences surrounding his plea. The State contends that
defendant does not have a right to raise this claim on direct
appeal from a judgment entered upon a guilty plea. We agree
with the State.
“[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, disc. review denied, 356
N.C. 442, 573 S.E.2d 163 (2002). Defendant’s claim of
ineffective assistance of counsel does not involve a sentencing
issue and does not derive from a motion to suppress or motion to
withdraw the guilty plea. Thus, he does not have a right to
raise this claim on appeal. See State v. Jamerson, 161 N.C.
App. 527, 528-29, 588 S.E.2d 545, 546-47 (2003).
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Assuming, arguendo, that defendant could petition this
Court for a writ of certiorari to consider this issue, we
decline in our discretion to issue the writ. We dismiss this
claim without prejudice to defendant’s right to raise it by a
motion for appropriate relief filed in the trial court.
III. Conclusion
In sum, the trial court committed harmless error by
including a criminal contempt adjudication as a conviction in
determining defendant’s prior conviction level. Moreover, we
dismiss defendant’s ineffective assistance of counsel claim
because he does not have a right to raise this issue on direct
appeal from a judgment entered upon a guilty plea.
No prejudicial error.
Judges McGEE and DAVIS concur.
Report per Rule 30(e).