Opinion
No. COA14–182.
02-03-2015
STATE of North Carolina, v. Allen Basiy LEONARD, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Peter Wood for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Peter Wood for defendant-appellant.
GEER, Judge.
Defendant appeals from probation revocation judgments that activated sentences imposed in 7 March 2011 judgments entered following defendant's plea of guilty to two counts of possession with intent to sell or deliver a schedule II controlled substance. Defendant's sole argument on appeal is that the sentence imposed in one of the underlying judgments is not authorized by statute. Defendant, however, could have appealed his 2011 judgments but failed to do so. Under the rule articulated by our Supreme Court in State v. Holmes, 361 N.C. 410, 646 S.E.2d 353 (2007), defendant's challenge to the underlying sentence is an impermissible collateral attack on the sentences imposed pursuant to his 2011 guilty pleas. We, therefore, affirm.
Facts
On 30 November 2009, defendant was indicted in 09 CRS 51935 for possession with intent to sell or deliver marijuana, a schedule VI controlled substance, and in 09 CRS 51936 for possession with intent to sell or deliver cocaine, a schedule II controlled substance. On 12 January 2011, in 10 CRS 55545, defendant was also indicted for a second count of possession with intent to sell or deliver cocaine.
Defendant entered into a plea agreement on 7 March 2011, the terms of which are set out in the transcript of plea signed by defendant. Under the terms of the plea, defendant entered an Alfordguilty plea on two counts of possession with intent to sell or deliver a schedule II controlled substance. Both of these offenses are designated in the transcript of plea as class H felonies with a maximum punishment of 30 months imprisonment, for a total maximum punishment of 60 months. The transcript of plea further indicated that the State would dismiss the charge of possession with intent to sell or deliver a schedule VI controlled substance, the marijuana charge.
However, the transcript of plea transposed the file numbers of the 2009 charges. The 2009 charge of possession with intent to sell or deliver a schedule II controlled substance, to which defendant pled guilty, is designated in the transcript of plea as file number 09 CRS 51935 when it should have been 09 CRS 51936. The charge of possession with intent to sell or deliver a schedule VI controlled substance, which the State dismissed, is designated as file number 09 CRS 51936 when it should have been 09 CRS 51935.
Consistent with the transposed file numbers, the trial court entered judgments finding that defendant pled guilty in 09 CRS 51935 to possession with intent to sell or deliver marijuana and in 10 CRS 55545 to possession with intent to sell or deliver cocaine. The 09 CRS 51935 judgment listed the offense initially corresponding to that file number in the indictment—possession with intent to sell or deliver marijuana, a class I felony—and not the offense identified in the transcript of plea, a class H felony. The court determined defendant had a prior record level of IV and sentenced defendant to two consecutive terms of 11 to 14 months imprisonment. On both judgments, the court indicated that the terms were in the presumptive range. The court suspended defendant's sentences and placed defendant on supervised probation for 36 months. Defendant did not appeal from the judgments.
On 23 August 2013, defendant's probation officer filed violation reports. A probation revocation hearing was held on 4 October 2013. The trial court entered judgments on 4 October 2013 revoking defendant's probation and activating his two consecutive sentences. Defendant appealed the probation revocation to this Court.
Discussion
Defendant's sole argument on appeal is that the sentence imposed in 09 CRS 51935 is not authorized by statute. The State, however, contends that defendant's argument amounts to an impermissible collateral attack on the original judgments from which defendant did not appeal.
In Holmes,the defendant pled guilty to several felony charges and was sentenced in the aggravated range for one of the charges. 361 N.C. at 411–12, 646 S.E.2d at 354. The trial court suspended the sentences, and the defendant did not appeal from those judgments. Id.at 412, 646 S.E.2d at 354. Later, the trial court revoked defendant's probation, and, on appeal from the revocation order, the defendant argued that his sentence violated his constitutional rights under Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403, 124 S.Ct. 2531 (2004), because the aggravating factors were not submitted to a jury. Holmes, 361 N .C. at 412, 646 S.E.2d at 354.
Our Supreme Court, relying upon State v. Noles, 12 N.C.App. 676, 184 S.E.2d 409 (1971), and State v. Rush, 158 N.C.App. 738, 582 S.E.2d 37 (2003), held that because the defendant did not appeal the original judgments, those judgments became final. Holmes, 361 N.C. at 412–13, 646 S.E.2d at 355. Consequently, defendant's attack, in his appeal from the judgments revoking his probation, on the sentences originally imposed and suspended was “an impermissible collateral attack on the original judgments.” Id.at 413, 646 S.E.2d at 355.
More recently, the Supreme Court reiterated in State v. Pennell, 367 N.C. 466, 471, 758 S.E.2d 383, 387 (2014), that when a defendant had failed to appeal from the original judgment, he could not “appeal the matter collaterally via a [parole revocation] proceeding contesting the activation of the sentence imposed in the original judgment.” Instead, the proper procedure would be to file a motion for appropriate relief or, because the Pennelldefendant argued the indictment was invalid, a petition for writ of habeas corpus. Id.at 472, 758 S.E.2d at 387.
Under Holmesand Pennell,defendant is precluded from challenging the sentence originally imposed when appealing from the judgments activating his sentences. Because he makes no other argument on appeal, we affirm.
Affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgments entered 4 October 2013 by Judge Julia L. Gullett in Rowan County Superior Court. Heard in the Court of Appeals 4 June 2014.