State v. Green, 051920 NCCA, COA19-531

Docket Nº:COA19-531
Opinion Judge:McGEE, CHIEF JUDGE.
Party Name:STATE OF NORTH CAROLINA v. AHKYTRA DENISE GREEN, DEFENDANT
Attorney:Attorney General Joshua H. Stein, by Assistant Attorney General Robert C. Ennis, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for Defendant.
Judge Panel:Judges DIETZ and ZACHARY concur.
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

AHKYTRA DENISE GREEN, DEFENDANT

No. COA19-531

Court of Appeals of North Carolina

May 19, 2020

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 3 December 2019.

Appeal by Defendant from judgment entered 1 November 2018 by Judge Lawrence D. Graham in District Court, Iredell County, No. 18 CR 051013

Attorney General Joshua H. Stein, by Assistant Attorney General Robert C. Ennis, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for Defendant.

McGEE, CHIEF JUDGE.

Ahkytra Denise Green ("Defendant") appeals from the trial court's 1 November 2018 judgment convicting her of felony habitual larceny pursuant to a plea agreement. Defendant contends that she was wrongly sentenced as a prior record level IV, when she should have been sentenced as a prior record level III. Defendant acknowledges that her attempted notice of appeal from the 1 November 2018 judgment "did not comply with N.C. R. App. P. 4 because it did not identify the correct court to which the appeal is taken, nor was it filed and served upon the district attorney. Accordingly, her right to appeal pursuant to N.C. Gen. Stat. § 15A-270.1 was most likely waived." Defendant filed a petition for writ of certiorari on 26 June 2019, requesting this Court to address the merits of her appeal despite her defective notice of appeal. We grant Defendant's petition for writ of certiorari but determine that even if she was sentenced under the incorrect prior record level, on these facts she cannot demonstrate prejudice. We therefore find no prejudicial error.

I. Factual and Procedural Background

Defendant was charged with, inter alia, one count of felony habitual larceny for shoplifting $319.81 worth of children's clothing from an Old Navy department store in Mooresville on 22 February 2018. Defendant pleaded guilty to felony habitual larceny in District Court on 1 November 2018 as part of a plea agreement. As part of that agreement, the State dismissed the remaining charges pending against Defendant, and Defendant stipulated that she would "be sentenced as a [Prior Record] Level IV." The trial court sentenced...

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