Petition for Writ of Certiorari — Martinez Orlando Black, Petitioner v. North Carolina

Supreme Court briefJan 30, 2018

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App. |

STATE OF NORTH CAROLINA __JN THE GENERAL COURT OF JUSTICE

COUNTY OF MECKLENBURG <eGONN SUPERIOR COURT DIVISION

egy ENB

wae ent 04 CRS 61836, 37

4 04 CRS 239042

9, 701

STATE OF NoRTH CAROLINA SN \ ) in

F a Tho

va | Sg OE —

" pa ORDER DENYING

) MOTION FOR APPROPRIATE RELIEF

) FILED 16 DECEMBER 2016

MARTINEZ O. BLACK, )

Defendant. )

THIS MATTER came on to be heard and was considered in-chambers by the undersigned

Resident Superior Court Judge. After reviewing the Motion; the record; and relevant statutory and

common law, the Court FINDS and CONCLUDES as follows:

I, The legal arguments regarding the Court's authority to sentence Defendant in the

aggravated habitual felon range are not "jurisdictional in nature" and are therefore

procedurally barred;

2. The legal arguments regarding the Court's authority to sentence Defendant in the

aggravated habitual felon range -- even if not procedurally barred -- are without legal

merit and are not correct as a matter of law; and

3. The Ineffective Assistance of Counsel, Due Process, Eighth Amendment and Equal

Protection arguments are not only subject to procedural bar but are also without legal

merit.

BASED ON THE FOREGOING, THE UNDERSIGNED CONCLUDES:

1. An evidentiary hearing is not necessitated by the 16 December 2016 Motion for

Appropriate Relief; and

2. That the 16 December 2016 Motion for Appropriate Relief should be summarily denied.

IT IS HEREBY ORDERED that the Defendant’s 16 December 2016 Motion for Appropriate

Relief be DENIED.

THIS THE / | day of January 2017.

avs

Chl YMA 5 ———$

Hoi, Eric L\/Levinson

Resident Superior Court Judge

App. 2

CERTIFICATE OF SERVICE

This is to certify that I have this date served the following parties in interest with a copy of the attached

Order Regarding Motion for Appropriate Relief by hand delivery and/or depositing a copy of same in an

official depository under exclusive care and custody of the United States Post Office in Charlotte, North

Carolina with adequate postage pre-paid, addressed to the following:

Mr. Martinez O. Black 0032357

527 Commerce Drive

Elizabeth City, NC 27909

Mr. Jay Ashendorf

Office of the District Attorney — Mecklenburg County

700 East Fourth Street

Charlotte, N.C. 28202

Mecklenburg County Clerk of Superior Court — Criminal Division

Mecklenburg County Courthouse

832 East Fourth Street

Charlotte, N.C. 28202

Mr. Bruce Cunningham

225 N. Bennett Street

Southern Pines, NC 28387

This the f { day of ia a 2017.

On A Mel”

J anetA. Norwood

Superior Court Judicial Assistant

26 Judicial District ~ Mecklenburg County

832 East Fourth Street, Suite 9600

Charlotte, N.C, 28202

On behalf of:

Hon. Eric Levinson, Resident Superior Court Judge

orth Carolina Court of Appeals

DANIEL M. HORNE JR., Clerk

Fax: (919) 831-3615 Court of Appeals Building

Web: http:/Awww.nccourts.org One West Morgan Street

Raleigh, NC 27601

(918) 831-3600

No. P17-301

STATE OF NORTH CAROLINA,

VS.

MARTINEZ O. BLACK,

DEFENDANT.

From Mecklenburg

( 04CRS239042 04CRS61836-37 )

ORDER

The following order was entered:

Mailing Address:

P. O. Box 2779

Raleigh, NC 27602

The petition filed in this cause on the 5th of May 2017 and designated 'Petition for Writ of Certiorari' is

denied.

By order of the Court this the 15th of May 2017.

The above order is therefore certified to the Clerk of the Superior Court, Mecklenburg County.

WITNESS my hand and the seal of the North Carolina Court of Appeals, this the 15th day of May 2017.

Bh Zk.

Daniel M. Horne Jr.

Clerk, North Carolina Court of Appeals

Copy to:

Mr. Daniel P. O'Brien, Special Deputy Attorney General, For State of North Carolina

Mr. Bruce T. Cunningham, Jr., Attorney at Law, For Black, Martinez O.

Mr. Joseph L. Hyde, Assistant Attorney General

Hon. Elisa Chinn-Gary, Clerk of Superior Court

No. 329A09-3 App. 4 TWENTY-SIXTH DISTRICT

Supreme Court of Porth Carolina

STATE OF NORTH CAROLINA

MARTINEZ ORLANDO BLACK

From Mecklenburg

( 04CRS239042 04CRS618-36-37 )

From N.C. Court of Appeals

( 08-1180 P10-844 )

ORDER

Upon consideration of the petition filed by Defendant on the 18th of September 2017 in this matter for a writ

of certiorari to review the order of the Superior Court, Mecklenburg County, the following order was entered and

is hereby certified to the Superior Court of that County:

“Denied by order of the Court in conference, this the 1st of November 2017."

Jackson, J. recused

s/ Morgan, J.

For the Court

WITNESS my hand and the seal of the Supreme Court of North Carolina, this the 8th day of November

2017.

Christie Speir Cameron Roeder

Clerk, Supreme Court of North Carolina

Assistant Clerk, Supreme Court Of North Carolina

Copy to:

North Carolina Court of Appeais

Ms. Amy Kunstling Irene, Special Deputy Attorney General, For State of North Carolina - (By Email)

Mr. Martinez Orlandis Black, For Black, Martinez Orlando

Mr. Bruce T. Cunningham, Jr., Attorney at Law, For Black, Martinez Orlando - (By Email)

Mr. Joseph L. Hyde, Assistant Attorney General, For State of North Carolina - (By Email)

Mr. R. Andrew Murray, District Attorney

Hon. Elisa Chinn-Gary, Clerk

West Publishing - (By Email)

Lexis-Nexis - (By Email)

STATE OF NORTH CAROLINA —_—Appp5 Pe oucrscress st

In The General Court Of Justice

MECKLENBURG County Superior Court Division

STATE VERSUS FELONY JUDGMENT

Name Of Defendant FINDINGS OF AGGRAVATING

MARTINEZ ORLANDO BLACK AND MITIGATING FACTORS

Offense (STRUCTURED SENTENCING)

POSSESSION FIREARM BY FELON G.S. 18A-1 340.18

NOTE: When consolidating offenses for judgment, findings of aggravating factors and miligating factors should be made only for the most serious offense.

Separate findings of aggravating factors and mitigating factors Should be made for sach offense that is nol consolidated.

AGGRAVATING FACTORS as

CL] 1. The Defendant:

C] a. induced others to participate in the commission of the offense.

[_] b. occupied a position of leadership or dominance of other participants in the commission of the offense.

(2. The defendant joined with more than one other person in committing the offense and was nol charged with committing a

conspiracy.

[] 2a. The offense was committed for the benefit of, or al the direction of, any criminal street gang, with the specific intent to promote,

further, or assist in any criminal conduct by gang members, and the defendant was not charged with committing a conspiracy.

[J 3. The offense was committed for the purpose of:

(7) a. avoiding or preventing a lawful arrest. (Tb. effecting an escape from custody.

[J 4. Thedefendantwas: [J] a. hiredto commit the offense. Cb, paid to commit the offense.

[) 5. The offense was committed to:

(CJ a. disrupt the lawful exercise of a governmental function or the enforcement of laws.

[1] b. hinder the lawful exercise of a governmental function or the enforcement of laws.

[] 6. The offense was committed against or proximately caused serious Injury to a present or former law enforcement officer, arnployee

of tha Department of Correction, jailer, fireman, emergency medical technician, ambulance attendant, social worker

(effective 12/1/09), justice or judge, clerk or assistant or daputy clerk of court, magistrate, prosecutor, juror, or witness against the

defendant, while engaged In the performance of that person's official duties or because of the exercise of that person's official

dutlas,

7. The offense was especially heinous, atrocious or cruel.

8. The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would

normally be hazardous to the lives of more than one person.

#. The defendant held public office at the time of the offense and the offense related to the conduct of the office.

[] 10. The defendant:

CJ a was armed with a deadly weapon at tha tima of the crime. (J b. used a deadly weapon at the time of the crime.

[J 11. The victim was:

a. very young. Clb. very old. (Jc. mentally infirm. Ll d. physicatly infirm. [] e. handicapped.

C] 12. The defendant committed the offense while on pretrial release on another charge.

[J 13. The defendant involved a person under the age of 16 in the commission of the crime.

[J 14. The offense involved:

{_] a. an attempted taking of property of great monetary value. _[_]b. the actual taking of property of great monetary value.

[J ¢. damage causing great monetary loss. ['}d. an unusually targe quantity of contraband.

15. The defendant took advantage of a position of trust of confidence, including a domestic relationship, to commit the offense.

16. The offense involved the sale or delivery of a controlled substance to a minor.

16a. The offense is the manufacture of methamphetamine and was committed where a person under the age of 18 lives, was present,

or was otherwise endangered by exposure to the drug, its ingredients, its by-products, or its waste.

16b. The offanse is the manufacture of methamphetamine and was committed in a dwelling that Is one of four or more contiguous

dwellings. (effective 1/15/06)

17. The offense was committed against a victim because of the victim's race, color, religion, nationality, or country of origin.

18. The defendant does not support the defendant's family.

18a. The defendant has previously been adjudicated delinquent for an offense that would be a Class A, B, C, D, or E felony if

committed by an adult. [x] The Court finds this aggravating factor beyond a reasonable doubt.

19. The victim of this offense suffered serious injury that is permanent and debilitating.

20. Additional written findings of factors in aggravation:

OO 800 O 000

(x] The Court accepts the defendant's admission to the aggravating factor(s) noted above and finds the supporting evidence to be beyond

a reasonable doubt.

C] The jury finds these aggravating factors beyond a reasonable doubt.

L_] There are no findings of any aggravating factors.

AOC-CR-605, Rev. 10/05 Malorial oppasi rhed sq is to be diaregarded es surplusage.

es RE, MITIGATING FACTORS —_— “$$

[1] 1. The defendant committed the offense under: sart=

(] a. duress which was insufficient to constitute a defense but significantly reduced the defendant's culpability,

(1b. coercion which was insufficient to constitute a defense but significantly reduced the defendant's culpabllity.

(_] c. threat which was insufficient to constitute a defense but significantly reduced the defendant's culpability.

[1] d. compulsion which was insufficient to constitute a defense but significantly reduced the defendant's culpability.

[-] 2. The defendant:

[[] a. was’a passive participant in the commission of the offense.

CJ b. played a minor role in the commission of the offense.

C1 3. The defendant was suffering from a: ;

(J a. mental condition that was insufficient to constitute a defense but significantly reduced the defendant's culpability for the

offense.

C1 b. physicat condition that was insufficient to constitute a defense but significantly reduced the defendant's culpability for the

offense.

(1 4. The defendant's:

a. age, or immaturity,

offense.

7] b. limited mental Capacity at the time of the commission of the offense significantly reduced the defendant's culpabllity for the

offense,

(1 §. The defendant has made:

a. substantial restitution to the victim.

1 b. full restitution to the victim.

6. The victim was more than 16 years of age and:

fx] a. wasa vaiuntary particlpant in the defendant's conduct.

["] b. consented to the defendant's conduct,

[] 7. The defendant:

a. aided in the apprehension of another felon.

C b. testified truthfully on behalf of the State in another prosecutlon of a felony.

8. [7] a. The defendant acted under strong provocation.

[J b. The relationship between the defendant and the victim was otherwise extenuating.

C1 9. The defendant:

at the time of the commission of the offense significantly reduced the defendant's culpabilily for the

C] a. could not reasonably foresee that the defendant's conduct would cause or threaten serious bodily harm ar fear

CJ b. exercised caution to avoid serious bodily harm or fear to other persons.

0. The defendant reasonably believed that the defendant's conduct was legal.

1. ce defendant votuntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer:

a. at an early stage of the criminal process.

b. prior to arrest.

12. The defendant has been a person of good character or has had a good reputation In the community in which the defendant lives.

13. The defendant is a minor and has reliable supervision avallable.

[] 14. The defendant has been honorably discharged from the United States Armed Services.

[_] 15. The defendant has accepted responsiblity for the defendant's criminal conduct.

J] 16. The defendant has entered and is currently involved in or has successfully completed a drug treatment program or an alcohol

treatment program subsequent to arrest and prior to trial.

(J 17. The defendant supports the defendant's family.

[-] 18. The defendant has a support system in the community.

{_] 19. The defendant has a positive employment history or is galniully employed.

20. The defendant has a good treatment prognosis and a workable treatment plan is available.

21. Additional written findings of factors in mitigation:

[] The Court makes no findings of any mitigating factors.

OETERMINATION

1. The Court finds that:

[x] the State Provided the defendant with appropriate notice of the aggravating factor(s) in this case.

[_] the defendant waived any notice requirements as to the aggravating factor(s) in this case.

2. The Court finds that the State included in its criminal pleading the statement requifed by G.S. 1§A-924(a)(7), if necassary.

3. The Court, having considered the evidence and arguments presented at the trial and sentencing hearing, and based on the

admission{s) and findings of aggravating and mitigating factors as noted above, finds that

iT the factors in aggravation outweigh the factors in mitigation and that an aggravated se is ied.

(CO the factors in mitigation outweigh the factors in aggravation and that a mitiggtet se Is jyeifed. we)

Dale Name Of Presiding Judge (Type Or Print) y, lure Of piesiding Aigde

02/04/2008 LINWOOD O. FOUST

AOC-CR-605, Side Two, . . .

ry pe radians i rts Material oppasite unmanied¥tirs in disregarded aa suplunege.

App Fe No.

Py o 7 oO.

STATE OF NORTH CAROLINA “12- he o4cRS61836 51

MECKLENBURG County CHARLOTTE Seat of Court In The General Court Of Justice

NOTE: gob earntel ech A Dy bron da peng hors rp agtrrpodosedier a Which are consolidated (_] District Superior Court Division

STATE VERSUS JUDGMENT AND COMMITMENT

a ACTIVE PUNISHMENT

MARTINEZ ORLANDO BLACK FELONY

Race ax DOA - —

B M 10/24/1975 iSTRUCTIRED ENTENCIN' i 5A-1301, 15A-1340,13

Attomey For State oO Det Foie Darlvened Atfomey For Defendant —

JAY ASHENDORF Not molgant Attomey HAROLD BENDER Pe] Appolntes [) Retained

The defendant [[] pled guilty to: [x] was found guilty by a Jury of: CJ pled no contest to:

File No.(s) Off. Offense Description Offense Date G.S, No. F/M | CL. |"Fun.

04CRS61936 51 | POSSESSION OF FIREARM BY FELON 07/24/2004 14-415.1 Fi/a]ec

04CRS61837 51 | HABITUAL FELON 07/24/2004 14-7.1 Fic

“NOTE: Enter punishment class # different from underlying felony class (punishment less represents @ Sfatus or enhancement). PRIOR LJ! apo Ov

The Court: RECORD Lever: CJM LJiv Zvi

[x] 1. has determined, pursuant to G.S. 16A-1340.14, the prior recerd points of the defendant tobe _. 7. Any prior record, lavel point under

G.S, 15A-1340.14(b)(7) is based on the jury's determination of this ssué beyond a reasonable doubt or the defendantia admission to this Igaue.

(}2. makea no prior record level finding because none Is required for Class A felony, violent habitual felon, or drug trafficking offenses.

The Court: (NOTE: Bick. or 2 MUST be checked);

(CJ 1. makes no written findings. because the prison term Imposed is: ([] (a) within the presumptive range of santencas authorized

under G.S. 15A-1340.17(c). L] (b) fora class A felony. (c) for an adjudication as a violent habitual felon. G.S. 14-7.12,

(1 (d) for drug trafficking offenses.

ix] 2. makes the aggravating and mitigating factors Determination as set forth on the attached AOC-GR-G05.

i 3. imposes the prison erm pursyant to a plea arrangement as fo sentence under Article 58.0f G.S. Chapter 15A.

4, finds the defendant has providéd-substantial assistance pursuant to GS. 90-95(h)(5). |

[x] 5. adjudges the defendant to be an habitual felon to be sentenced as a Class C felon pursuant to Article 2A of G.S. Chapter 14.

Cj 68. finds enhanced punishment pursuant to: C1G.S. 90-95(e)(3) (drugs). [G.S. 14-3(c) (hate crime), [ ]G.S. 50B-4.4 (domestic

violence), []Other: + a -_. This firiding is based on the jury's determination of

this issue beyond e reasonable doubt or the defendant's admission to this Issue.

[_] 7. finds the above designated offense(s) is a reportable conviction involving a minor, G.S. 14-208.8.

L] 8. finds the defendant is classified as a sexually violent predator. G.S. 14-208.20.

L) 9. finds that the defendant used, displayed, or attempted to use or display a firearm at the time of the felony and, pursuant to

G.S. 15A-1340.16A, has increased the minimum term of imprisonment to which the defendant would otherwise be sentenced by

sixty (60) months. This finding is based on the jury's determination of this issue beyond a reasonable doubt or the defendant's

admission to this issue. ,

_J10. finds the defendant is classified as a recidivist. G.S. 14-208,8.

|_J11. finds this is an aggravated offense. G.S. 14-208.6.

[]12. finds that a [7] motor vehicle [[] commercial motor vehicle was used in the commission of the offense and this conviction

shall be reported to DMV. ‘

(J 13. finds this is an offense involvin

G.S. 50B-1(b) with the victim.

The Coun, having considered evidence, arguments of counsel and statement of defendant, Orders that

9 assault or communicating a threat, and the defendant had a personal relationship as defined by

the above offenses, If mare than one, be consolidated for

judgment and the defendant be imprisoned

for a minimum term of: for 2 maximum term of: in the custody of:

130 months : 165 months

LJ Class A Felony: [[) Life imprisonment Without — {_] Oeath (see attached Death Ix]N.c. DOC.

Prue __Warrant end Certificates) (_] Sheriff pursuant to G.S. 154-1382(b).

L] Class 81 Felony: Life imprisonment Without Parole Clother

[_] Violent Habitual Felon: Life imprisonment Without Parole

The defendant shall be given credit for 1,231 days spent in confinement prior to the date of this Judgment as a result of this charge(s).

{_] The sentence im posed above shall begin at the expiration of all sentences which the defendant is presently obligated to serve.

The sentence imposed above shall begin at the expiration of the sentence imposed in the case referenced below:

File Number Offense County Court Date

04CRS239042 51 MECKLENBURG CHARLOTTE 02/04/2008

Material opposite unmarked squares i to be disregaided as surplusage.

vel

AOC-CR-601, Rev. 10/05

A. QQ

(aheck al! that apply) APH —

[_] 1. The defendant shall pay the costs. (] 2. The defendant shall pay a fine of $

The Court recommends:

C3. Assignment to a substance abuse treatment unit. G.S. 18A-1354 (h) (applies aniy fo offenses commited before Decembor 1, 2003).

[] 4. Psychiatric and/or psychological counseling.

[] 5. Work Releass.

Payment as a condition of post release supervision, if applicable, or from work release earnings, if-applicable, of the items and

C6.

= amounts set out below.

Fines Court Costs Restitution” Aftomey's Faes Total Amount Due

$ $ $ $ $ 0.00

“See attached "Restitution Worksheet, Notice and Order (Initial Sentencing)," AOC-CR-611, which is incorporated by reference.

The Court further recommends:

The Court does not recommend:

C] 2. Work release.

(C] 1. Restitution as a condition of post release supervision or work release.

AWARD OF FEE TO COUNSEL FOR DEFENDANT EASE

including expenses, was awarded the

Ol A hearing was held in open court in the presence of the defendant at which time a fee,

defendant's appointed’ counsel or assigned public defender. ; : -

ORDER OF COMMITMENT/APPBAL ENTRIES

C7 itis ORDERED that the Clerk deliver two ceftified edples of this Judgient and Commitment to the sheriff or other qualified officer

and that the officer cause the defendant to be delivered with these copies to the custody of the agency named on the reverse to

sérvé the senténce imposed or until the defendant shall have complied with the conditions of release pending: appeal.

The defendant gives notice of appeal from the judgment of the trial court to the appellate division. Appéal entries and any

conditions of post conviction release ara set forth on form AOC-CR-360. . —~

ss ‘ , = ee oo ' tf,

SIGNATURE OF UGE an Ty i

Date Name Of Presiding Juage (Type Or Print) Signature Of Preslaing age ; ESI

02/04/2008 . uNWOODO.FOUst | ge Cee

ORDER OF COMMITMEN] AFTER APPEAL y

Date Withdrawal Of Appasi Filed 7:

| Date Appellate Opinion Cartiied

Date Appeal Dismissed

Itis ORDERED that this Judgment be executed. it is FURTHER ORDERED that the sheriff arrest the defendant, if necessary, and

recommit the defendant to the custody of thé agency named in this Judgment on the reverse and furnish that agency two certified

copies of this Judgment arid: Commitment as authority for the commitment and detention of tie defendant.

Date Signature CJ Deputy CSC {] Assistant osc

. ; Clerk OF Superior Court

CERTIFIGATION

(s) marked below is a'true and complete copy of the

| certify that this Judgment and Commitment with the attachment

original which fs on file in this case.

ix} Appeal Entries (AOC-CR-350) woe.

Felony Judgment Findings Of Aggravating And Mitigating Factors (AOC-CR-605)

(C] Judicial Findings As To Forfeiture Of Licensing Privileges (AOC-CR-317)

[x] Victim Notification Tracking Form

C Restitution Worksheet, Notice And Order {Initial Sentencing) (AOC-CR-611)

Dele Signature

02/04/2008 Y, SEAL

Date Certified Coples Deliverad To Sherif -

{x] oefuty OSC AssistantCSC = [_] Clark Of Superior Court

Matariat oppogile unmarked squares ia to be disregarded as surplusage.

AOC-CR-601, Side Two, Rav. 10/05

App.-9

File No,

STATE OF NORTH CAROLINA “top. b» o4cRs239042 5)

MECKLENBURG County CHARLOTTE Seat of Court In The General Court Of Justice

NOT el eae rae ee on eed PDistiet Bd Superior Court Divito

| STATE VERSUS JUDGMENT AND COMMITMENT

Sane eereuien ACTIVE PUNISHMENT

MARTINEZ ORLANDO BLACK - FELONY

a Se p08 STRUCTURED SENTENCING)

B M 10/24/1975 (ST G.S, 18A-1301, 18A-1340,13

Atfornay For Sfaie - 0 Dot. Fouad Dat, Wiwed Attomey For Defandant

JAY ASHENDORF Nol Indigent Attomey HAROLD BENDER fx] Anpeintad [7 Retained

| The defendant L] pled guilty to: [x] was found guilty by a Jury of: [-] pled no contest to:

File Noa) | Off. Offense Description | Offense Date | G.8. No. [ Fim | cL. [tum

04CRS5239042 51. | VOLUNTARY MANSLAUGHTER 07/24/2004 14-18 F Dic

04CRS61837 51 | HABITUAL FELON Pra Aegean 07/24/2004 14-7.1 Fic

: ie 2 ia ae

FEB 19 2004

“NOTE: Enter punishment class if different from undeniying felony class Taurlshidoht GaP repesanly Tuas + anhancameny), mW y

; RAM, Ni PRIOR Cir km Cj

The Court: RECORDLEVEL: (JN (iv (vi

__6__. Any prior record level point under

kx] 1. has determined, pursuant to GS, 154-1340.14, the Prior record points of the defendant to ba

GS. 154*1340.14(b)(7) Is based on the jury's delerminalion of this Issue beyond a reagonable doubl or the defendant's admission to thls Isgus,

[-} 2. makes no prior record feval finding because none Is required for Class A felony, violent habital felon, or drug trafficking offenses.

The Court: (NOTE: Block 4 or 2 MUST be checked):

1. makes no written findings because the prison {erm iniposed is:. () (a) within the presumptive range of sentences authorized

under G.S. 15A-1340.17(c). L] (b) fora class A felony. (c) for an adjudication as a violent habitual felan. G,S. 14-7.12,

[_] (4) for drug trafficking offenses. ,

. Makes the aggravating and mitigating factors Determination as set forth on the attached AOC-CR-GOS.

. imposes the prison term pursuant to a plea arrangement as to senlence under Article §8 of G.S. Chapter 154A,

. finds the defendant has provided substanilal assistance pursuant to G,S, 90-95(h)(5).

adjudges the defendant to be an habitual felon to be sentenced as a Class C felon pursuant to Article 2A of G.S, Chapter 14.

. finds enhanced punishment pursuant to! [[] G.S. 90-95(e)(3) (drugs). [[]G.S. 14-a(c) (hata crime). [[] G.S. 50B-4.1 (domestic

violence). [ Other: . This fInding is based on the jury's determinatlon of

this issue beyond a reasonable doubl or the defendant's admission to this issue.

finds the above designated offense(s) {s a reportable conviction Involving a minor. G.S. 14-208.6,

finds the defendant Is classifled as a sexually violent predator, G.S. 14-208,20.

played, or atfempted fo use or display a firearm at the time of the felony and, pursuant to

. finds that the defendant used, dis

G.S8. 15A-1340.16A, has Increased the minimum term of imprisonment to which the defendant would otherwise be sentenced by

sixty (60) months, This finding is based on the jury's determination of this Issue beyond 4 reasonable doubt or lhe defendant's

Oop wp

OOO ORO

admission to this Issue,

(-]10, finds the defendant is classified as a recidivist. G.S. 14-208.6.

{_]11. finds this is an aggravated offense. G.S, 14-2086.

[] commercial motor vehicle was used In the commission of the offense and this conviction

[-]12. finds that a ["] motor vehicle

shall be reparted to DMV.

g assault or communicating a threat, and the defendant had a personal relationship as defined by

[}13. finds this is an offense involvin

G.S&. 50B-1(b) with the victim.

, arguments of counsel and slalement of defendanl, Orders thal the above offenses, If more than one, be consolidated for

The Court, having censidered avidence

Judgment and ihe defendant be imprisoned

for a minimum term of; : " |for a maximum term of: in the custody of:

130 months 165 months

{_] Class A Felony: {7} ‘ite imprisonment Without [_) Death {see attached Death jE N.C. DOC.

Parole. Warrant and Certificates) CSheritt pursuant to G.S. 15A-1352(b),

[0 Other

Class B{ Felony: Life imprisonment Without Parole

Violent Habitual Felon: Life Imprisonment Withoul Parole

li CJ

[ The defendant shall be given credit for 1,231 days spent in confinement prior to the date of this Judgment as a result of this charge(s)

[x] The sentence imposed above shalt begin at the expiration of all sentences which the defendant is presently obligated lo serve.

[[] The sentence imposed above shail begin at the expiration of the sentence imposed in the case referenced below:

" Numb er i | County | Court | Date |

AOG-CR-801, Rev. 10/05 Material opposita unmarked ihrer tie be disregarded as surplusage.

App. 10

(check all that apply)

[] 1. The defendant shal! pay the costs. ~ [9 2-The defendant shall pay a fine of $

The Court recommends:

1354(h) (applies only to offenses committed before December 1, 2003),

C43. Assignment to a substance abuse treatment unit. G.S, 15A-

(_] 4. Psychiatric and/or psychological counseling.

[_] &. Work Release. .

C] 6. Payment as a condition of post release supervision, if applicable, or from work release earnings, if applicable, of the Items and

amounts sel out below.

Fines Court Costs Resitiution® Aflomay's Fees Total Aniounl Due

$ $ $ $ $ 0.00

| *See attached “Restitution Worksheet, Notice and Order (Initial Sentencing)," AOC-CR-611, which Is incorporated by reference.

Thé Court further recommends:

DEFENDANT IS SERVING A FEDERAL SENTENCE

The Court does not recommend:

[J 1. Restitution as a Condition of post release supervision or work release, CI 2. Work release.

AWARD OF FEE TO COUNSEL FOR DEFENDANT.

presence of the defendant at which time a fee, Including expenses, was awarded the

{J A hearing was held In open court in the

défendant's appointed counsel or assigned public defender.

ORDER OF COMMITMENT/APPEAL ENTRIES Seater i

(] It is ORDERED that the Clerk deliver tWo certified copies of this Judgment and.Commitment to the sheriff or other qualified officer

ant to be delivered with these caples to the custody of the agency named on the reverse to

and that the officer cause the defend ;

serve the sentence impased or untll the defendant shall have complied wilh the canditions of release pending appeal.

f<] The defendant gives notice of appeal from the judgment of the trlal court to the appellate division. Appeal entrige

Conditions of poat conviction release are sel forth an form AOC-GR-350.

eeebaneete ENE GEL Tey As SIGNATURE OF JUDG

Date .

. 02/04/2008

Signa

Peat kant a3

Date Appeal Dismissed

cota megs {Type Or Pring]

LINWOOD O, FOUST

ORDER OF COMMITMENT AFTER A

ie Withorawa/ O/ Appaal (7

It is ORDERED that this Judgment be execuled. It Is FURTHER ORDERED that the sheriff arrest the defendant, If necessary, and

gment on the reverse and furnish that agency two certified

recommit the defendant to the cuslody of the agency named In this Jud

copies of this Judgment and Commitment as authority forthe commitment and detention of the defendant.

[} pepuy csc — [_} Assistant SC

[] Clark Of Superior Court

Sipnature

Ye ee ae

na Pepe

— CERTIFICATION

attachment(s) marked below Is a true and complete copy of the

| cettify that this Judgment and Commitment with the

original which is on file In this case.

ix] Appeal Entries (AOC-CR-350)

aggravating And Mitigating Factors (AQC-CR-605)'

fk] Felony Judgment Findings Of A

[) Judicial F indings As To Forfeiture Of Licensing Privileges (AOC-CR-317)

{<] Victim Notification Tracking Form

(} Restitution Worksheet, Notice And Order (Initial Sentencing) (AOC-CR-611)

Dale | Signature y r A, Gye. j t 4 SEAL

02/04/2008 /

Dale Certified Copies Delivered Te Sherif } (LOSS

fe] Seputy csc: [[] Clerk O7 Superior Court

[J Assistant CSC

Material opposiie unmerked aquaras {6 to ba dlersgarded 24 eurplusage.

AOC-CR-601, Side Two, Rev. 10/05

® 2005 Administrative Office of ths Couris

App. 11

NO. COA08-1180

NORTH CAROLINA COURT OF APPEALS

Filed: 7 July 2009

STATE OF NORTH CAROLINA,

Vv. Mecklenburg County

Nos. 04CRS239042

04CRS61836

MARTINEZ ORLANDO BLACK, 04CRS61837

Defendant.

Appeal by defendant from judgments entered on or about 4

February 2008 by Judge Linwood 0. Foust in Mecklenburg County

Superior Court. Heard in the Court of Appeals 12 March 2009.

Attorney General Roy A. Cooper, III, by Assistant Attorney

General Leonard G. Green, for the State.

Michael E. Casterline, for defendant-appellant.

STROUD, Judge.

Defendant was convicted of voluntary manslaughter and

possession of a firearm by a felon. He was sentenced as an

habitual felon on both convictions and given a sentence in the

aggravated range. Defendant contends the trial court erred by (1)

allowing a witness to testify while referring to a transcript of a

police interview conducted the day the crime occurred; (2)

sentencing defendant as an habitual felon; and (3) sentencing

defendant in the aggravated range. For the following reasons, we

find no error.

I. Background

On 24 July 2004 defendant shot Reginald Reid in the abdomen

and the shoulder at close range. Reid died from the gunshot

wounds.

On 11 October 2004, the Mecklenburg County Grand Jury indicted

defendant for (1) possession of a firearm by a felon, case number

O4CRS61836; (2) for having attained the status of habitual felon,

case number 04CRS061837; and (3) murder, case number 04CRS239042.

A superseding indictment was issued on 25 June 2007 to add

possession of cocaine with intent to distribute (“PWISD”) to the

murder charge in case 04CRS239042.

Defendant was tried before a jury from 14 January to 4

February 2008. The PWISD charge was dismissed for insufficient

evidence before the case was submitted to the jury. The jury found

defendant guilty of possession of a firearm by a felon, voluntary

manslaughter and of being an habitual felon. In case 04CRS239042

the trial court sentenced defendant on the verdict of voluntary

manslaughter as an habitual felon in the aggravated range of 130 to

165 months imprisonment. In case 04CRS61836 the trial court

sentenced defendant on the verdict of possession of a firearm by a

felon as an habitual felon in the aggravated range of 130 to 165

months imprisonment, to run consecutively from his sentence in case

04CRS239042. Defendant appeals.

II. Present Recollection Refreshed

Defendant contends the trial court erred in admitting the

testimony of Eduardo McConico, a witness for the State. Defendant

App. 13

-3-

relies on State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977), to

contend that the trial court erred because McConico was allowed to

testify after he saw a written transcript and heard an audio

recording of a police interview conducted the day the crime

occurred.

More specifically, defendant argues that McConino’s testimony

was inadmissible because the transcript qualified neither as past

recollection recorded pursuant to Rule 803(5)* nor as present

recollection refreshed. Defendant argues McConico merely parroted

the information in the interview transcript because the trial

court’s discussion of the rules of evidence “along with the court’s

direct questions to the witness to establish a foundation,

conceivably put the witness under extreme pressure to testify

consistently with the prior recorded recollection for fear of

committing perjury.” Defendant further argues that the admission

of McConico’s testimony was prejudicial, thereby entitling him to

a new trial.

A. Standard of Review

Defendant contends that this issue should be reviewed de novo.

However, the case defendant relies on, Smith, plainly states that

A memorandum or record concerning a matter

about which a witness once had knowledge but

now has insufficient recollection to enable

him to testify fully and accurately, shown to

have been made or adopted by the witness when

the matter was fresh in his memory and to

reflect that knowledge correctly fis not

excluded by the hearsay rule, even though the

declarant is available as a witness].

N.C. Gen. Stat. § 8C~1, Rule 803(5).

App. 14

-~4-

a ruling on a witness’ use of a memory aid to refresh his

recollection is in the sound discretion of the trial judge and

will not be disturbed absent an abuse of that discretion. 291 N.C.

at 518, 231 S.E.2d at 672. “An abuse of discretion results only

where a decision is manifestly unsupported by reason or so

arbitrary that it could not have been the result of a reasoned

decision.” Clark v. Sanger Clinic, 175 N.C. App. 76, 84, 623

S.E.2d 293, 299 (2005) (citation, quotation marks, and ellipses

omitted).

B. Analysis

Because the transcript itself was not admitted into evidence,

defendant’s argument that the transcript did not qualify as a past

recollection recorded pursuant to Rule 803(5) is irrelevant to the

appeal sub judice. See State v. Gibson, 333 N.C. 29, 50, 424

S.E.2d 95, 107 (1992) (no analysis of Rule 803(5) claim when the

document used to refresh the memory of the witness was not itself

proffered as evidence), overruled on other grounds by State v.

Lynch, 334 N.C. 402, 410, 432 S.E.2d 349, 353 (1993); see also Kor

Xiong v. Marks, ___ N.C. App. __, __, +668 S.E.2d 594, 597-98

(2008) (issue not considered on appeal when there was no ruling by

the trial court). Therefore, the only issue for our consideration

is “whether the witness ha[d] an independent recollection of the

event and [was] merely using the memorandum to refresh details or

whether the witness [was] using the memorandum as a testimonial

crutch for something beyond his recall.” State v. York, 347 N.C.

79, 89, 489 S.E.2d 380, 386 (1997).

App. 15

-5-

Defendant correctly identifies Smith as outlining the

circumstances in which a trial court may allow a witness to use a

previously recorded writing or other memory aid when testifying.

291 N.C. at 517-18, 231 S.E.2d at 671-72. However, we do not

agree that applying Smith sub judice entitles defendant to a new

trial. In Smith, the defendants argued “that the testimony should

have been stricken because the transcript did not ‘refresh’ [the

witness’] memory but merely provided a script for her to recite at

trial.” Id. at 517, 231 S.E.2d at 671. Smith generally agreed

with the defendants’ statement of the law, but not with the

defendants’ application of the law to the facts of that case. Id.

at 517-18, 231 S.E.2d at 671-72.

Smith first distinguished an aid to refresh recollection from

a writing or recording which a party seeks to admit into evidence

as past recollection recorded, noting that “looser standards [are]

involved with present recollection refreshed” than with past

recollection recorded. Id. at 517, 231 S.E.2d at 671. Smith

further stated that “the stimulation of an actual present

recollection is not strictly bounded by fixed rules [as is the

admission of a past recollection recorded] but, rather, is

approached on a case-by-case basis looking to the peculiar facts

and circumstances present.” Id. at 516, 231 S.E.2d at 671.

According to Smith, when a witness uses a memory aid that is

not itself admitted into evidence,

the memorandum [or other memory aid] must

actually “refresh” the memory of the witness

and his subsequent testimony must indeed be

from his own recollection. Where the

App. 16

-6-

testimony of the witness purports to be from

his refreshed memory but is clearly a mere

recitation of the refreshing memorandum, such

testimony is not admissible as present

recollection refreshed and should be excluded

by the trial judge. [{However, wlhere there is

doubt as to whether the witness purporting to

have a refreshed recollection is indeed

testifying from his own recollection, the use

of such testimony is dependent upon the

credibility of the witness and is a question

for the jury.

291 N.C. at 518, 231 S.E.2d at 671-72 (citations omitted; emphasis

in original retained). York, a later case which applied Smith,

added that when a witness first

347 N.C.

50-51, 424 S.E.2d at 107

testifie[s] from memory, and in particular

detail, about the events surrounding the

interview with the defendant[,] . . .

[occasionally] refer[s] to .. . his notes

[,] answer[s some questions] independently

of his notes [and] ha[s] extensive independent

recall about the events surrounding the

interview and the interview itself[, ijt is .

evident from the full circumstances that

th[{e] witness [has] used his notes .. . in

order to specifically recall for the jury what

occurred during his interview with [the]

defendant.

at 89, 489 S.E.2d at 386; see also Gibson, 333 N.C.

(no error when witness answers some

questions independently of his notes and other questions after

referring to his notes).

In applying the law to the facts of the case, Smith observed:

The evidence on this point is contradictory.

At one point the witness, when questioned as

to the origin of her testimony, stated that it

was “[o]f my own memory.” At another point

she said, “some is to my memory, and some

isn’t.” Such statements raise questions as to

the validity of her testimony.

App. 17

-j-

291 N.C. at 517, 231 S.E.2d at 671. Accordingly, Smith determined

that the witness’ reference to a previous transcript was not a

clear recitation from the refreshing memorandum but merely raised

doubt that the witness was testifying from her own recollection.

Id. at 518, 231 S.E.2d at 671-72. Smith concluded that the

testimony was admissible within the discretion of the trial judge

and overruled the defendants’ assignment of error. Id. at 518, 231

S.E.2d at 672.

In the case sub judice, McConico testified to some of the

events of the night in question before being shown the transcript

of his police interview. When McConico was shown the transcript,

he was equivocal about whether or not he remembered making the

statements found therein. The trial court then allowed him to

listen to the entire audio recording of his statements outside the

presence of the jury. After hearing the tape, McConico admitted

that the tape “refreshed [his] memory as to certain aspects of the

case[.]” McConico then testified in detail to the events of the

night in question, apparently without further reference to the

interview transcript.

We conclude that this is not a case where the witness’

testimony was “clearly a mere recitation of the refreshing

memorandum.” Smith, 291 N.C. at 518, 231 S.E.2d at 671 (emphasis

in original). Rather, there was “doubt as to whether the witness

purporting to have a refreshed recollection [was] indeed testifying

from his own recollection.” Id. The trial court carefully

considered the evidence and did not make an arbitrary or

App. 18

-8-

unreasonable decision. Accordingly, this assignment of error is

overruled.

III. Habitual Felon Conviction

Defendant contends that the trial court violated the Double

Jeopardy Clause of the United States Constitution by sentencing him

as an habitual felon because the same prior felony served as the

basis for his conviction for possession of a firearm by a felon and

as the basis for the habitual felon conviction. Defendant cites no

authority in support of this argument, acknowledging that this

Court has already rejected a similar argument and that he raises

the issue here only “for preservation purposes for possible future

review in the Supreme Court of North Carolina or in federal court.”

Accordingly, this assignment of error is considered abandoned.

N.C.R. App. P. 28(b) (6).

IV. Aggravated Sentence

Defendant contends that the trial court erred by sentencing

him in the aggravated range. Defendant first contends that a

juvenile adjudication may not be used to aggravate a sentence

because a juvenile adjudication is not determined by a jury,

thereby violating Blakely v. Washington, a case holding that

aggravating factors must be found by a jury. 542 U.S. 296, 159 L.

Ed. 2d 403 (2004). However, defendant did not raise this

constitutional issue before the trial court; therefore, he may not

raise it on appeal. State v. Jaynes, 342 N.C. 249, 263, 464 S.E.2d

448, 457 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080

(1996).

App. 19

-9-

Defendant next contends that the trial court abused its

discretion by giving undue weight to the aggravating factor of his

juvenile adjudication of first degree rape and first degree

burglary as opposed to the mitigating factor that Reid was over 16

years of age and a voluntary participant in defendant’s conduct.

We disagree.

The weight to be given to aggravating and mitigating factors

is within the sound discretion of the trial judge and will not be

disturbed on appeal absent abuse of that discretion. State v.

Love, 177 N.C. App. 614, 626, 630 S.E.2d 234, 242-43, disc. review

denied, 360 N.C. 580, 636 S.E.2d 192-93 (2006). “An abuse of

discretion results only where a decision is manifestly unsupported

by reason or so arbitrary that it could not have been the result of

a reasoned decision.” Clark, 175 N.C. App. at 84, 623 S.E.2d at

299 (citation, quotation marks, and ellipses omitted).

Defendant’s juvenile offenses were very serious crimes and the

length of defendant’s criminal record shows that his juvenile

adjudication had little if any effect of turning him away from

serious criminal activity later in life. We perceive no abuse of

discretion in the trial judge giving greater weight to the

aggravating factor and sentencing defendant in the aggravated

range. Accordingly, this assignment of error is overruled.

V. Conclusion

The trial court did not err when it allowed Eduardo McConico

to refresh his memory from the written transcript of his interview

App. 20

-10-

with police. The trial court did not err when it sentenced

defendant as an habitual felon in the aggravated range.

No Error.

Judges JACKSON and STEPHENS concur.

§ 14-7.6. Sentencing of habitual felons“ PP- 21

When an habitual felon as defined in this Article commits any felony under the laws of the

State of North Carolina, the felon must, upon conviction or plea of guilty under indictment as

provided in this Article (except where the felon has been sentenced as a Class A, B1, or B2

felon) be sentenced at a felony class level that is four classes higher than the principal felony

for which the person was convicted; but under no circumstances shall an habitual felon be

sentenced at a level higher than a Class C felony. In determining the prior record level,

convictions used to establish a person's status as an habitual felon shall not be used. Sentences

imposed under this Article shall run consecutively with and shall commence at the expiration of

any sentence being served by the person sentenced under this section. (1967, c. 1241, s. 6;

1981, c. 179, s. 13; 1993, c. 538, s. 9; 1994, Ex. Sess., c. 22, ss. 15, 16; c. 24, s. 14(b); 1993

(Reg. Sess., 1994), c. 767, s. 16; 2011-192, s. 3(d).)

G.S. 14-7.6 Page 1

App. 22

*** Effective for Offenses Committed on or after 12/1/95 ***

OFFENSE CLASS

FELONY PUNISHMENT CHART

PRIOR RECORD LEVEL

I i 1) Iv Vv VI

0 Pts 14 Pts | 5-8 Pts 9-14Pts | 15-18 Pts | 19+ Pts

A Death or Life Without Parole

A A A A A A DISPOSITION

Life Without | Life Without Ageravated Range

Bi | 240-300 | 288-360 | 336-420 384-480 | — Parole Parole : al 8

192-240 | 230-288 | 269-336 | 307-384 | 346-433 | 384-480 | PRESUMPTIVE RANGE

144-192 | 173-230 | 202-269 | 230-307 | 260-346 | 288-384 Mitigated Range

A A A A A A

B2 | 157-196 | 189-237 | 220-276 | 251-313 | 282-353 | 313-392

125-157 | 151-189 | 176-220 | 201-251 | 225-282 | 251-313

94-125 | 114-151 | 132-176 | 151-201 | 169-225 | 188-251

A A A A A A

c 73-92 | 100-125 | 116-145 | 133-167 | 151-188 | 168-210

58-73 | 80-100, | 93-116 | 107-133 | 121-151 | 135-168

44 - 58 60 - 80 70 - 93 80 - 107 90-121 | 101-135

A A A A A A

D 64 - 80 77-95 103-129 | 117-146 | 133-167 | 146-183

51 - 64 61-77 | 82-103 | 94-117 | 107-133 | 117-146

38-51 46-61 61 - 82 71-94 80 - 107 88 - 117

VA VA A A A A

E 25-31 29 - 36 34-42 46-58 53 - 66 59-74

20-25 23 - 29 27-34 37-46 42 - 53 47-59

15 - 20 17-23 20-27 28 - 37 32-42 35-47

VA VA V/A A A A

F 16-20 19 - 24 21-26 25-31 34-42 39-49

13 - 16 15-19 17-21 20 - 25 27-34 31-39

10-13 11-15 13-17 15-20 20-27 23-31

VA VA VA VA A A

G 13 - 16 15 - 19 16 - 20 20 - 25 21 - 26 29 - 36

10-13 12-15 13:- 16 16 - 20 17-21 23 - 29

8-10 9-12 10 - 13 12-16 13-17 17 - 23

C/A VA VA VA VA A

7 6-8 8-10 10-12 11-14 15-19 20 - 25

5-6 6-8 8-10 9-11 12-15 16 - 20

4-5 4-6 6-8 7-9 9-12 12-16

Cc C/A I VA VA VA

, 6-8 6-8 6-8 8-10 9-11 10 - 12

4-6 4-6 5-6 6-8 7-9 8-10

3-4 3-4 4-5 4-6 5-7 6-8

A- Active Punishment

Revised: 08-04-95

I — Intermediate Punishment

Numbers shown are in months and represent the range of minimum sentences

C — Community Punishment

App. 23

MINIMUM AND MAXIMUM SENTENCES

The corresponding maximum sentence for each minimum sentence is shown in the tables below. In each column, the

number to the left of the dash represents the minimum sentence (in months) and the number to the right of the dash

represents the corresponding maximum sentence (in months). To calculate a maximum sentence when the minimum

sentence is 340 months or more, see G.S. 15A-1340.17(el).

FOR OFFENSE CLASSES Bl THROUGH E

15-27 36-77 97-126 138-175 179-224 220-273 261-323 302-372

16-29 57-78 98-127 139-176 180-225 221-275 262-324 303-373

17-30 58-79 99-128 140-177 181-227 222-276 263-325 304-374

18-31 59-80 100-129 141-179 182-228 223-277 264-326 305-375

19-32 60-81 101-131 142-180 183-229 224-278 265-327 306-377

20-33 61-83 102-132 143-181 184-230 225-279 266-329 307-378

21-35 62-84 103-133 144-182 185-231 226-281 267-330 308-379

22-36 63-85 104-134 145-183 186-233 227-282 268-331 309-380

23-37 64-86 105-135 146-185 187-234 228-283 269-332 310-381

24-38 65-87 106-137 147-186 188-235 229-284 270-333 311-383

25-39 66-89 107-138 148-187 189-236 230-285 271-335 312-384

26-41 67-90 108-139 149-188 190-237 231-287 272-336 313-385

27-42 68-91 109-140 150-189 191-239 232-288 273-337 314-386

28-43 69-92 110-141 151-191 192-240 233-289 274-338 315-387

29-44 70-93 111-143 152-192 193-241 234-290 275-339 316-389

30-45 71-95 112-144 153-193 194-242 235-291 276-341 317-390

31-47 72-96 113-145 154-194 195-243 236-293 277-342 318-391

32-48 73-97 114-146 155-195 196-245 237-294 278-343 319-392

33-49 74-98 115-147 156-197 197-246 238-295 279-344 320-393

34-50 75-99 116-149 157-198 198-247 239-296 280-345 321-395

35-51 76-101 117-150 158-199 199-248 240-297 281-347 322-396

36-53 77-102 118-151 159-200 200-249 241-299 282-348 323-397

37-54 78-103 119-152 160-201 201-251 242-300 283-349 324-398

38-55 79-104 120-153 161-203 202-252 243-301 284-350 325-399

39-56 80-105 121-155 162-204 203-253 244-302 285-351 326-401

40-57 81-107 122-156 163-205 204-254 245-303 286-353 327-402

41-59 82-108 123-157 164-206 205-255 246-305 287-354 328-403

42-60 83-109 124-158 165-207 206-257 247-306 288-355 329-404

43-61 84-110 125-159 166-209 207-258 248-307 289-356 330-405

44-62 85-111 126-161 167-210 208-259 249-308 290-357 331-407

45-63 86-113 127-162 168-211 209-260 250-309 291-359 332-408

46-65 87-114 128-163 169-212 210-261 251-311 292-360 333-409

47-66 88-115 129-164 170-213 211-263 252-312 293-361 334-410

48-67 89-116 130-165 171-215 212-264 253-313 294-362 335-411

49-68 90-117 131-167 172-216 213-265 254-314 295-363 336-413

50-69 91-119 132-168 173-217 214-266 255-315 296-365 337-414

51-71 92-120 133-169 174-218 215-267 256-317 297-366 338-415

52-72 93-121 134-170 175-219 216-269 257-318 298-367 339-416

53-73 94-122 135-171 176-221 217-270 258-319 299-368

54-74 95-123 136-173 177-222 218-271 259-320 300-369

55-75 96-125 137-174 178-223 219-272 260-321 301-371

FOR OFFENSE CLASSES F THROUGH I

3-4 9-11 15-18 21-26 27-33 33-40 39-47 45-54

4-5 10-12 16-20 22-27 28-34 34-41 40-48 46-56

5-6 11-14 17-21 23-28 29-35 35-42 41-50 47-57

6-8 12-15 18-22 24-29 30-36 36-44 42-51 48-58

7-9 13-16 19-23 25-30 31-38 37-45 43-52 49-59

8-10 14-17 20-24 26-32 32-39 38-46 44-53

App. 24

*** Effective for Offenses Committed on or after 12/1/95 ***

OFFENSE CLASS

FELONY PUNISHMENT CHART

PRIOR RECORD LEVEL

DISPOSITION

Aggravated Range

>be tae

. Mitig ated Range

Tole Enhancement Wve to Aggyavatiag Fecfor

A A A A A

_ 73-92 100 - 125 116 - 14 133 - 167 151 - 188 168 - 210

44 - . 60 - 8 70 - 93 80 - 107 90 - 121 101 - 135

——————_"— —-

E nhancenmant dva t+ IC Pease in Prior Record leve/

Habsfoal Felon Enpancemen€

5. A. Maximun sentence fer basre crime

A- Active Punishment I- Intermediate Punishment C-— Community Punishment

Numbers shown are in months and represent the range of minimum sentences

Revised: 08-04-95 F

App. 25

MINIMUM AND MAXIMUM SENTENCES

The corresponding maximum sentence for each minimum sentence is shown in the tables below. In each column, the

number to the left of the dash represents the minimum sentence (in months) and the number to the right of the dash

represents the corresponding maximum sentence (in months). To calculate a maximum sentence when the minimum

sentence is 340 months or more, see G.S. 15A-1340.17(e1).

FOR OFFENSE CLASSES B1 THROUGH E

15-27 56-77 97-126 138-175 179-224 220-273 261-323 302-372