State v. Fleig , 232 N.C. App. 647 ( 2014 )

NO. COA13-1001
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Onslow County
No. 11 CRS 55170-3
MATTHEW PELHAM FLEIG
Appeal by defendant from judgment entered 20 March 2013 by
Judge W. Allen Cobb, Jr. in Onslow County Superior Court. Heard
in the Court of Appeals 3 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Ann W. Matthews, for the State.
James W. Carter, for defendant.
ELMORE, Judge.
On 20 March 2013, a jury found Matthew Pelham Fleig
(defendant) guilty of multiple drug offenses. The subject of
this appeal concerns judgment entered on those offenses in 11
CRS 055170 that stemmed from 10 August 2010: 1.) felony sale of
marijuana; 2.) felony delivery of marijuana; and 3.) misdemeanor
possession of marijuana. Judge W. Allen Cobb, Jr. consolidated
these convictions and imposed a term of imprisonment for six-
months minimum, eight-months maximum. That sentence was
-2-
suspended, and defendant was placed on probation for thirty
months and required to served a thirty-day active sentence.
Defendant now appeals and contends that the trial court erred by
sentencing him for both sale and delivery of marijuana. After
careful consideration, we remand for a new sentencing hearing
with instructions to vacate either the 1.) sale of marijuana
conviction or 2.) delivery of marijuana conviction.
I. Facts
On 5 August 2010, the Jacksonville Police Department
conducted a traffic stop of Sarah Lyon’s vehicle, and it was
discovered that the passenger in her car possessed marijuana, a
marijuana grinder, and digital scales. After further
investigation, Lyon was never charged with any criminal
offenses. Thereafter, she was asked by the Jacksonville Police
Department if she knew any individuals who were involved in the
sale of narcotics in the local area. She provided the police
with defendant’s name and agreed to assist them in conducting a
controlled buy of marijuana from defendant. On 10 August 2010,
officers recorded a phone conversation between Lyon and
defendant in which she asked to purchase marijuana from him.
Defendant agreed, and the police department gave Lyon a twenty-
dollar bill to buy the marijuana. Equipped with a recording
-3-
device, Lyon drove to defendant’s house, picked him up, and they
drove to another location in the neighborhood to conduct the
drug deal. Lyon provided defendant with twenty dollars, and he
gave her a “dime bag” of marijuana (bag) in return. Knowing
that one bag was not a sufficient amount of marijuana for the
price of twenty dollars, Lyon immediately requested an
additional bag. Defendant did not have any additional marijuana
on his person because he thought Lyon only wanted one bag, but
he agreed to give Lyon the additional quantity she requested.
They drove back to his house to retrieve more marijuana,
defendant obtained another bag, and he gave it to Lyon. Lyon did
not pay defendant, nor did defendant request, additional money
for the second bag. After Lyon received the second bag, she
left defendant’s house and relinquished the recording device
and marijuana to the Jacksonville Police Department.
II. Analysis
a.) Writ of Certiorari
Defendant seeks appellate review by petition for writ of
certiorari because of his trial counsel’s failure to give proper
notice of appeal pursuant to North Carolina Appellate Procedure
Rule 4. For the reasons that follow, we allow defendant’s writ
of certiorari.
-4-
Rule 4 mandates that appeal from a judgment rendered in a
criminal case must be given either orally at trial or by “filing
notice of appeal with the clerk of superior court and serving
copies thereof upon all adverse parties within fourteen days
after entry of the judgment[.]” N.C. R. App. P. 4. Should a
defendant fail to timely appeal, a writ of certiorari “may be
issued in appropriate circumstances by either appellate court to
permit review of the judgments[.]” N.C.R. App. P. 21. This
Court has held that an appropriate circumstance to issue writ of
certiorari occurs when “a defendant’s right to appeal has been
lost because of a failure of his or her trial counsel to give
proper notice of appeal.” State v. Gordon, ___ N.C. App. ___,
___, 745 S.E.2d 361, 363 (2013) review denied, 749 S.E.2d 859(2013).
Here, defendant’s counsel did not give oral notice of
appeal at trial because he needed to speak with defendant to
ascertain whether defendant sought to appeal the judgment.
After conferring with defendant, defendant’s attorney gave oral
notice of appeal five days later in Onslow County Superior
Court. However, defendant’s counsel failed to file a written
notice of appeal with the Onslow County Clerk of Superior Court
and serve copies upon the State within fourteen days after entry
-5-
of judgment. As a result, defendant’s right to appeal was lost.
However, the lost appeal was no fault of defendant’s but an
error by his trial attorney. Accordingly, we grant defendant’s
petition for writ of certiorari and address the merits of his
appeal.
b.) Sentencing Error
Defendant argues that the trial court erred in sentencing
him to a consolidated judgment of 6-8 months for the two
separate offenses of selling marijuana and delivering marijuana
per N.C. Gen. Stat. § 90-95(a)(1). Specifically, defendant
argues that that he was sentenced twice for conduct that
constituted a single offense. We agree.
“[We review alleged sentencing errors for] ‘whether [the]
sentence is supported by evidence introduced at the trial and
sentencing hearing.’” State v. Deese, 127 N.C. App. 536, 540,
491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-
1444(a1) (Cum. Supp. 1996)). Under N.C. Stat. § 90-94 (2013),
marijuana is classified as a schedule VI controlled substance.
Pursuant to N.C. Gen. Stat. § 90-95(a)(1) (2013), it is unlawful
for an individual to “manufacture, sell or deliver, or possess
with intent to manufacture, sell or deliver, a controlled
substance[.]” The statute establishes three distinct offenses:
-6-
“(1) manufacture of a controlled substance, (2) transfer of a
controlled substance by sale or delivery, and (3) possession
with intent to manufacture, sell or deliver a controlled
substance.” State v. Moore, 327 N.C. 378, 381, 395 S.E.2d 124,
126 (1990) (emphasis in original). A sale is defined as “a
transfer of property for a specified price payable in money”
while a delivery is “the actual [sic] constructive, or attempted
transfer from one person to another of a controlled
substance[.]” Id. at 382, 395 S.E.2d at 127 (citations and
quotations omitted) (emphasis in original). In addressing
offense (2) above, our Supreme Court has ruled that “each single
transaction involving transfer of a controlled substance”
creates a single offense, “which is committed by either or both
of two acts—sale or delivery.” Id. Thus, a defendant “may not
. . . be convicted under N.C.G.S. § 90-95(a)(1) of both the sale
and the delivery of a controlled substance arising from a single
transfer.” Id. (emphasis in original).
Here, the transaction began when Lyon gave defendant twenty
dollars, and defendant gave her a bag in return. The
transaction continued because neither sale nor delivery of the
marijuana was complete. A negotiation ensued as Lyon requested
an additional bag because of the amount of money she had
-7-
provided to defendant. Defendant acquiesced, retrieved more
marijuana from his house, and completed the sale by delivering
the bag to Lyon. Thus, the transaction concluded when defendant
gave the second bag to Lyon. The transfer of the second bag
from defendant to Lyon simultaneously completed sale and
delivery of the drug transaction because Lyon received the total
quantity of marijuana she requested for the specified price of
twenty dollars. Since defendant’s acts of sale and delivery
arose from a single transaction, defendant was improperly
sentenced on the separate offenses of sale and delivery of
marijuana. Thus, we remand this matter for resentencing
notwithstanding the consolidated judgment. See id. at 383, 395
S.E.2d at 127-28 (holding that when separate convictions for
sale and delivery were in error and consolidated into one
judgment, this Court must remand because we are “unable to
determine what weight, if any, the trial court gave each of the
separate convictions for sale and for delivery” in calculating
the imposed sentences); See also State v. Rogers, 186 N.C. App.
676, 678, 652 S.E.2d 276, 277 (2007) (remanding for resentencing
where the trial court erred by sentencing defendant for both
sale and delivery of a controlled substance). On remand, either
the conviction for 1.) sale of marijuana or 2.) delivery of
-8-
marijuana in 11 CRS 055170 should be vacated to reflect that
defendant was convicted of a single count of “sale or delivery”
of marijuana.
III. Conclusion
In sum, the trial court erred by sentencing defendant for
the sale and delivery of marijuana when his conduct constituted
a single offense. Therefore, we remand for a new sentencing
hearing with instructions to vacate either the 1.) sale of
marijuana conviction or 2.) delivery of marijuana conviction in
11 CRS 055170.
Remanded.
Chief Judge MARTIN and Judge HUNTER, Robert N., concur.