State Carolina v. Mungo

• Decision Date: 19 July 2011
• Docket Number: No. COA10–718.,COA10–718.
• Citation: 713 S.E.2d 542
• Parties: STATE of North Carolinav.Ronnie Norvel MUNGO, Defendant.
• Court: North Carolina Court of Appeals

713 S.E.2d 542

STATE of North Carolina
v.
Ronnie Norvel MUNGO, Defendant.

No. COA10–718.

Court of Appeals of North Carolina.

July 19, 2011.

[713 S.E.2d 543]

Appeal by defendant from judgment entered on 8 February 2010 by Judge Yvonne Mims Evans in Superior Court, Mecklenburg County. Heard in the Court of Appeals 12 January 2011.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Larissa S. Williamson, for the State.

Hartsell & Williams, P.A., Concord, by Christy E. Wilhelm, for defendant-appellant.

STROUD, Judge.

Defendant appeals on various grounds. For the following reasons, we find that the trial court did not err in calculating defendant's prior record level and dismiss defendant's other arguments on appeal.

I. Background

Defendant was indicted for felonious breaking or entering, larceny after breaking or entering, safecracking, and obtaining the status of habitual felon. Defendant pled guilty to all of the charges against him. During defendant's plea hearing the State provided a copy of defendant's Division of Criminal Information (“DCI”) record to the trial court and asked that he be sentenced as “a Prior Record Level VI for habitual sentencing[.]” Defendant did not stipulate to his prior record level but also did not raise any objection to the prior record information, including his prior convictions, as presented by the State. Defendant did however disagree with the points calculated determining his prior record level, and after a lengthy discussion with both his attorney and the trial judge regarding how his points were calculated, the trial court agreed with the State and concluded that defendant had a prior record level of VI. The trial court sentenced defendant within the presumptive range to a minimum of 140 months and a maximum of 177 months imprisonment, with credit for 278 days of pretrial confinement. The trial court also recommended defendant pay $798.35 in restitution.

On 16 February 2010, the trial court made appellate entries noting that defendant had given notice of appeal. However, the transcript of defendant's plea does not indicate that defendant gave oral notice of appeal, and the record on appeal does not contain a written notice of appeal. Defendant's brief states that his appeal is taken pursuant to N.C. Gen.Stat. §§ 7A–27(b), 15A–1444(a1) and 15A–1444(a2), but also requests in the alternative that this Court treat his brief as a petition for certiorari pursuant to N.C. Gen.Stat. § 15A–1444(e).

II. Right to Appellate Review

Defendant raises five issues in his brief, but before addressing the substance of defendant's issues we must first determine whether defendant has a right to appeal or a corresponding right to review via a petition for certiorari as to each issue. Defendant contends that: (1) “there was insufficient evidence that ... [defendant] understandingly and knowingly entered his plea[;]” (2) there was no admissible evidence to support the award of restitution; (3) his prior record level was calculated incorrectly; (4) he was denied effective assistance of counsel due to the trial court's denial of his motion to continue in order to allow him time to retain counsel; and (5) his constitutional rights to a fair and impartial trial were denied by the trial court's “inappropriate comments” about his prior record. (Original in all caps.)

N.C. Gen.Stat. § 7A–27(b) does not provide a route for appeals from guilty pleas, see N.C. Gen.Stat. § 7A–27(b) (2007), we thus turn to defendant's next basis for appeal N.C. Gen.Stat. § 15A–1444. N.C. Gen.Stat. § 15A–1444 provides in pertinent part:

(a1) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as

[713 S.E.2d 544]

a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.

(a2) A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed:

(1) Results from an incorrect finding of the defendant's prior record level under G.S. 15A–1340.14 or the defendant's prior conviction level under G.S. 15A–1340.21;

(2) Contains a type of sentence disposition that is not authorized by G.S. 15A1340.17 or G.S. 15A–1340.23 for the defendant's class of offense and prior record or conviction level; or

(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A–1340.17 or G.S. 15A1340.23 for the defendant's class of offense and prior record or conviction level.

....

(d) Procedures for appeal to the appellate division are as provided in this Article, the rules of the appellate division, and Chapter 7A of the General Statutes. The appeal must be perfected and conducted in accordance with the requirements of those provisions.

(e) Except as provided in subsections (a1) and (a2) of this section and G.S. 15A979, and except when a motion to withdraw a plea of...