572 S.E.2d 777 (N.C. 2002), 108A02, State v. Wagner

Docket Nº:108A02.
Citation:572 S.E.2d 777, 356 N.C. 599
Party Name:STATE of North Carolina v. Belvin E. WAGNER.
Case Date:December 20, 2002
Court:Supreme Court of North Carolina

Page 777

572 S.E.2d 777 (N.C. 2002)

356 N.C. 599

STATE of North Carolina


Belvin E. WAGNER.

No. 108A02.

Supreme Court of North Carolina

December 20, 2002.

Page 778

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 148 N.C.App. 658, 560 S.E.2d 174 (2002), finding no error in judgments entered 17 October 2000 by Albright, J., in Superior Court, Forsyth County. Heard in the Supreme Court 12 September 2002.

Roy Cooper, Attorney General by Joan M. Cunningham, Assistant Attorney General, for the State.

J. Clark Fischer, Winston-Salem, for defendant-appellant.

[356 N.C. 600] Rudolph, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Chapel Hill, on behalf of the North Carolina Academy of Trial Lawyers, amicus curiae.

North Carolina Prisoner Legal Services, Inc. by Kristin D. Parks, amicus curiae.


Defendant Belvin Eugene Wagner was originally arrested without a warrant when he attempted to purchase cocaine during an undercover drug operation on 17 July 1998 in which undercover law enforcement officers used blanched macadamia nuts as fake crack cocaine. On 17 August 1998, based on an information, defendant entered a negotiated guilty plea to the offense of attempted possession of cocaine as an habitual felon. This plea bargain provided that defendant would receive a minimum sentence of 101 months' imprisonment based on his criminal history, which was calculated to be at level VI. The trial court entered judgment sentencing defendant to serve 101 to 131 months' confinement.

Defendant thereafter filed a motion for appropriate relief asserting that his record level had been improperly calculated as a level VI when in fact his criminal history resulted in a level V for sentencing purposes. Concluding that defendant's plea bargain and guilty plea were based on "the mutual mistake of all parties as to [defendant's] proper record level for sentencing purposes," the trial court on 10 May 2000, nunc pro tunc 2 May 2000, vacated and set aside defendant's guilty plea and the judgment entered thereon.

On 15 May 2000 defendant was indicted for (i) attempt to possess cocaine, (ii) felonious possession of drug paraphernalia, and (iii) being an habitual felon. The paraphernalia on which this charge was based, an antenna used as a crack pipe, was found on defendant's person on 17 July...

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