Opinion
No. COA14–865.
02-17-2015
STATE of North Carolina v. Dennis O'Keith BLACKWELL.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Lars F. Nance, for the State. Marie H. Mobley for Defendant-appellant.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Lars F. Nance, for the State.
Marie H. Mobley for Defendant-appellant.
DILLON, Judge.
Dennis O'Keith Blackwell (“Defendant”) was found guilty on 19 September 2012 of three counts of possession with intent to sell and deliver cocaine; three counts of sale of cocaine; three counts of maintaining a vehicle for the keeping and selling of controlled substances; and attaining habitual felon status. Three judgments were entered by the trial court on that date. The first judgment, imposing an active term of a minimum of 127 months and a maximum of 165 months imprisonment, consolidated the three counts of sale of cocaine and the three counts of possession of cocaine with intent to sell and deliver, and the one count of maintaining a vehicle for the keeping and selling of controlled substance in cases 12CRS050170 (offense date 1/5/2012), 12CRS050171 (offense date 1/10/2012), and 12CRS050172 (offense date 1/17/2012).
The second judgment imposed an active sentence of a minimum of 35 months to a maximum of 54 months imprisonment upon the second count of maintaining a vehicle for the keeping and selling of controlled substances in case number 12CRS050171.
The third judgment imposed an active sentence of a minimum of 30 months to a maximum of 48 months imprisonment for the third count of maintaining a vehicle for the keeping and selling of controlled substances in case number 12CRS050172, having an offense date of 17 January 2012. The trial court ordered all three sentence to run consecutively.
Defendant appealed the judgments, and, on 15 October 2013, this Court filed an unpublished opinion holding two of the counts of maintaining a dwelling for the keeping and selling of controlled substance must be vacated and the matter remanded for resentencing. See State v. Blackwell,––– N.C.App. ––––, 752 S.E.2d 259, 2013 N.C.App. LEXIS 1090 (2013) (unpublished), disc. review denied, 367 N.C. 283, 752 S.E.2d 470 (2014).
At re-sentencing on 12 March 2014, the trial court entered two judgments imposing consecutive terms of imprisonment. The first judgment consolidated all counts of selling cocaine and possession with intent to sell and deliver cocaine and imposed a minimum term of 127 months to a maximum term of 165 months imprisonment. The second judgment, entered solely upon one count of maintaining a vehicle for the keeping and selling of controlled substances in case number 12CRS050171, imposed a minimum term of 35 months to a maximum term of 54 months. The trial court vacated two convictions of maintaining a dwelling for the keeping and selling of controlled substances in cases 12CRS050170 and 12CRS050172. Defendant gave oral notice of appeal in open court and, on 25 March 2014, filed written notice of appeal from the two new judgments, contending the sentences violated N.C. Gen.Stat. § 15A–1335.
On 16 October 2014, Defendant filed a petition for writ of certiorari seeking review of the judgments based on concerns that this Court may conclude it lacked jurisdiction because he did not have a right to appeal because he was re-sentenced within the presumptive ranges. The State responded by filing a motion to dismiss the appeal, on 22 October 2014. Assuming, arguendo,Defendant did not have a right of appeal, we allow Defendant's petition for writ of certiorari to consider Defendant's substantive arguments, and deny the State's motion to dismiss. See State v. Cook,––– N.C.App. ––––, ––––, 738 S.E.2d 773, 774, disc. review denied, 367 N.C. 212, 747 S.E.2d 249 (2013) (allowing petition for writ of certiorari to review claim that presumptive sentence imposed on remand violated N.C. Gen.Stat. § 15A–1335 ).
Defendant contends he is entitled to another sentencing hearing because the trial court's re-sentencing resulted in an increase of 35 to 54 months to be served for the conviction of maintaining a vehicle for the keeping and selling of controlled substances. He argues that because the trial court vacated the count of maintaining a vehicle in the first judgment, while sentencing him for one count of the offense in the second judgment, Defendant was effectively not given the full benefit of his successful appeal. We are not persuaded by Defendant's argument.
When 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.
N.C. Gen.Stat. § 15A–1335 (2011). We have held that a trial court, without running afoul of N.C. Gen.Stat. § 15A–1335, may change the way convictions are consolidated for judgment when it engages in re-sentencing after a direct appeal or collateral attack. See State v. Ransom, 80 N.C.App. 711, 713–14, 343 S.E.2d 232, 233–34 (1986) ; State v. Skipper, 214 N.C.App. 556, 558, 715 S.E .2d 271, 273 (2011). We recently re-iterated that N.C. Gen.Stat. § 15A–1335 applies only when the court resentences for the “same offense.” State v. Wray,––– N.C.App. ––––, ––––, 747 S.E.2d 133, 137 (2013), disc. review denied,367 N.C. 327; 755 S.E.2d 615 (2014). A careful reading of the judgments reveals that Defendant was originally sentenced in the first consolidated judgment upon a conviction in case number 12CRS050170 for the offense of maintaining a vehicle for the keeping and selling of controlled substances committed on 5 January 2012. Defendant's conviction of that offense was vacated and Defendant was never re-sentenced for that same offense. The trial court did not sentence Defendant in the revised judgment for a different offense based upon the same conduct committed on 5 January 2012. Moreover, after re-sentencing Defendant is serving one less prison term of 30 to 48 months. The total amount of time he will serve has been decreased by that amount. His sentence is thus less severe.
AFFIRMED.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
Opinion
Review of judgments entered 12 March 2014 by Judge W. Osmond Smith, III in Person County Superior Court upon grant of Defendant's petition for writ of certiorari. Heard in the Court of Appeals 12 January 2015.