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									No. COA 08-831                              26th JUDICIAL DISTRICT


                 (NORTH CAROLINA COURT OF APPEALS)
                 *********************************

STATE OF NORTH CAROLINA             )
                                    )    From Mecklenburg County
          v.                        )    No. 06 CRS 255584, 86
                                    )         07 CRS 5684
RICHARD CARL MASSEY                 )

   **********************************************************
                   DEFENDANT-APPELLANT'S BRIEF
   **********************************************************
                                        INDEX

INDEX...........................................................i

TABLE OF AUTHORITIES......................................ii, iii

QUESTIONS PRESENTED.............................................1

STATEMENT OF THE CASE.........................................2,3

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW...................3

STATEMENT OF THE FACTS........................................3-6

ARGUMENT:

I.    IT WAS ERROR FOR THE TRIAL COURT TO FAIL TO GIVE THE PATTERN JURY
      INSTRUCTION ON ENTRAPMENT REQUESTED BY DEFENSE COUNSEL IN
      VIOLATION OF N.C.G.S. § 15A-1231, 15A-1232, CASE LAW, AND THE DUE
      PROCESS AND JURY TRIAL RIGHTS CONTAINED IN N.C. CONSTITUTION
      ARTICLE I, §§ 19 AND 24 AND U.S. CONSTITUTIONAL AMENDMENTS 5, 6 AND
      14. (R 8, 11-17A; TVII 12-13, 17-19, 27, 29-31, 44, 46-47, 48, 60-61, 67; TVIII 3-
      13) .....................................................6-20

II.   THE COURT COMMITTED ERROR OR PLAIN ERROR BY ALLOWING THE STATE
      TO SUBMIT INDICTMENTS IN THE HABITUAL FELON TRIAL AS STATE'S
      EXHIBITS 11, 13 AND 15 TO PROVE THE THREE FELONIES UNDERLYING
      THE HABITUAL FELON STATUS CHARGE AGAINST MR. MASSEY, IN
      VIOLATION OF N.C.G.S. §§ 14-7.4 AND 15A-1221(b). (R 8-10, 20-
      22, 23-24, 27, 30, 33, 34; TVIII 22-23, 26-27, 29-30, 32-34,
      46, 47)................................................ 20-24


III. THE COURT ERRED OR COMMITTED PLAIN ERROR IN SENTENCING
     DEFENDANT MASSEY AT CRIMINAL RECORD LEVEL VI, CLASS C, BASED
     ON THE CRIMINAL RECORD WORKSHEET DUE TO ERRORS ON THE
     WORKSHEET AND IN CALCULATION OF HIS RECORD. (R 8, 35-37, 38,
     75-78; TVIII 49, 56-58) (ASSIGNMENT OF ERROR #4) .......24-30

CONCLUSION.....................................................30

CERTIFICATE OF SERVICE.........................................31


                                         i
ii
                      TABLE OF AUTHORITIES

CASES

Duncan v. Lousiana, 391 U.S. 145, 88 S.Ct. 1444 (1968).........17
Kinsey v. Spann, 139 N.C.App. 370, 533 S.E.2d 487 (2000)........6
Matthews v. U.S., 485 U.S. 58, 108 S.Ct. 883 (1988)......14,15,17
Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (1975)......15,16
Sherman v. U.S., 356 U.S. 369, 78 S.Ct. 819 (1958)........9,17,18
Smith v. Kappas, 219 N.C. 850, 15 S.E.2d 375 (1941).........14,16
Sorrells v. U.S., 287 U.S. 435, 53 S.Ct. 210 (1932)..7,9,17,18,20
State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977)............25
State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985)...........20,21
State v. Blue, 356 N.C. 79, 565 S.E.2d 133 (2002)..............14
State v. Bryant, 189 N.C. 112, 126 S.E. 107 (1925).............20
State v. Burnette, 242 N.C. 164, 87 S.E.2d 191 (1955)....13,14,18
State v. Coa, 175 N.C.App. 434, 626 S.E.2d 301 (2006)..........24
State v. Choppy, 141 N.C.App. 32, 539 S.E.2d 44 (2000).........20
State v. Cooke, 94 N.C.App. 386, 380 S.E.2d 382 (1989).........15
State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).......7,15
State v. Eubanks, 151 N.C.App. 499, 565 S.E.2d 738 (2002)......28
State v. Evans, 153 N.C.App. 313, 569 S.E.2d 673 (2002).....20,21
State v. Ferguson, 140 N.C.App. 699, 538 S.E.2d 217 (2000),
     disc. review denied, 353 N.C. 386, 547 S.E.2d 25 (2001)...15
State v. Field, 75 N.C.App. 647, 331 S.E.2d 221 (1985).........17
State v. Flowers, 347 N.C. 1, 489 S.E.2d 391 (1997).........20,22
State v. Fraley, 182 N.C.App. 683, 643 S.E.2d 39 (2007)..24,27,28
State v. Gilmore, 142 N.C.App. 465, 542 S.E.2d 694 (2001)...21,22
State v. Hudgins, 167 N.C.App. 705, 606 S.E.2d 433 (2005)....7,16
State v. Jaynes, 353 N.C. 534, 549 S.E.2d 179 (2001)........20,21
State v. Jones, 157 N.C.App. 472, 579 S.E.2d 408 (2003)........22
State v. Milby, 302 N.C. 137, 273 S.E.2d 716 (1981)............23
State v. Orr, 260 N.C. 177, 132 S.E.2d 334 (1963)..............16
State v. Reynolds, 161 N.C.App. 144, 587 S.E.2d 456 (2003).....24
State v. Riley, 159 N.C.App. 546, 583 S.E.2d 379 (2003)........29
State v. Smarr, 146 N.C.App. 44, 551 S.E.2d 881 (2001),
     disc. review denied, 355 N.C. 291, 561 S.E.2d 500 (2002)..15
State v. Staley, 292 N.C. 160, 232 S.E.2d 680 (1977)...........16
State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975)
     ..........................................7,8,10,11,14,17,18
State v. Vaughn, 130 N.C.App. 456, 503 S.E.2d 110,
     affirmed, 350 N.C. 88, 511 S.E.2d 638 (1998)..............25
State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991).............15
State v. Walker, 295 N.C. 510, 246 S.E.2d 748 (1978)
     ...............................................7,11,12,13,18
State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980).............16



                              iii
CONSTITUTION

N.C. CONST. art. I, § 19....................................16,17
N.C. CONST. art. I, § 24....................................16,17

STATUTES

N.C.G.S. § 7A-27(b)(2007).......................................3
N.C.G.S. § 14-7.4 (2007).......................................20
N.C.G.S.   §   14-7.5(2007)........................................ 21
N.C.G.S.   §   15A-1221(b)(2007)................................20,22
N.C.G.S.   §   15A-1231............................................14
N.C.G.S.   §   15A-1232(2007)......................................14
N.C.G.S.   §   15A-1340.14(2007)...................................25
N.C.G.S.   §   15A-1340.14(b)(5)(2007)..........................27,29
N.C.G.S.   §   15A-1443(a)(2007)...................................23
N.C.G.S.   §   15A-1443(b)(2007)...................................19
N.C.G.S.   §   15A-1444(a)(2007)....................................3
N.C.G.S.   §   15A-1446(d)(2007)....................................3
N.C.G.S.   §   15A-1446(d)(18)(2007)...............................24




                                  iv
No. COA 08-_____                                         26TH JUDICIAL DISTRICT


                     (NORTH CAROLINA COURT OF APPEALS)
                     *********************************

STATE OF NORTH CAROLINA                       )
                                              )     From Mecklenburg County
              v.                              )     No. 06 CRS 255584, 86
                                              )          07 CRS 5684
RICHARD CARL MASSEY                           )


    **********************************************************
                    DEFENDANT-APPELLANT'S BRIEF
    **********************************************************

                              QUESTIONS PRESENTED

      1.      IT WAS ERROR FOR THE TRIAL COURT TO FAIL TO GIVE THE PATTERN
JURY INSTRUCTION ON ENTRAPMENT REQUESTED BY DEFENSE COUNSEL IN
VIOLATION OF N.C.G.S. § 15A-1231, 15A-1232, CASE LAW, AND THE DUE PROCESS
AND JURY TRIAL RIGHTS CONTAINED IN N.C. CONSTITUTION ARTICLE I, §§ 19 AND 24
AND U.S. CONSTITUTIONAL AMENDMENTS 5, 6 AND 14. (R 8, 11-17A; TVII 12-13, 17-19,
27, 29-31, 44, 46-47, 48, 60-61, 67; TVIII 3-13)

      2.      THE COURT COMMITTED ERROR OR PLAIN ERROR BY ALLOWING THE
STATE TO SUBMIT INDICTMENTS IN THE HABITUAL FELON TRIAL AS STATE'S
EXHIBITS 11, 13 AND 15 TO PROVE THE THREE FELONIES UNDERLYING THE HABITUAL
FELON STATUS CHARGE AGAINST MR. MASSEY, IN VIOLATION OF N.C.G.S. §§ 14-7.4
AND 15A-1221(b). (R 8-10, 20-22, 23-24, 27, 30, 33, 34; TVIII 22-23, 26-27, 29-30, 32-
34, 46, 47)


      3.      THE COURT ERRED OR COMMITTED PLAIN ERROR IN SENTENCING
DEFENDANT MASSEY AT CRIMINAL RECORD LEVEL VI, CLASS C, BASED ON THE
CRIMINAL RECORD WORKSHEET DUE TO ERRORS ON THE WORKSHEET AND IN
CALCULATION OF HIS RECORD. (R 8, 35-37, 38, 75-78; TVIII 49, 56-58)
(ASSIGNMENT OF ERROR #4)
                                2
                      STATEMENT OF THE CASE

     This case is before the Court of Appeals as a result of a

written Notice of Appeal by the Appellant Richard Massey filed on

January 22, 2008, from the trial occurring during the January 7,

2008 Session of Criminal Court of Mecklenburg County, Charlotte,

North Carolina, the Honorable Linwood O. Foust, presiding. (R 8,

79, TVIV 3)   Appellate entries of the Notice of Appeal and the

Appointment of the Appellate Defender's Office was done before the

Honorable Timothy S. Kincaid on 2/14/08. (R 80-81, TVIV 3) The jury

returned verdicts of guilty of possession with intent to sell and

deliver cocaine and sale of cocaine on January 9, 2008, and

returned a verdict of guilty of habitual felon on the same day. (R

18-19, 34, TVIII 14, 16, 18-19, 47)

     Convicted of a Class G felony of sale of cocaine and the Class

H felony of possession with intent to sell and deliver cocaine, Mr.

Massey was sentenced as a Class C habitual felon, criminal history

level VI with 32 points, at the bottom of the mitigated range to a

term of imprisonment of 101 months minimum to 131 months maximum,

and given credit for 405 days spent in confinement since December

1, 2006 awaiting trial. (R 35-37, 75, TVIII 57-59) From this

Judgment, Mr. Massey filed a written notice of appeal. (R 79, TVIV

3)

     An extension of time to serve the proposed record on appeal

was obtained because only a portion of the transcript was delivered
                                3
initially due to the original appellate entries form not containing

all dates of the trial, and the remainder of the trial transcript

was delivered within that extended time period.    An Order granting

an extension of time to file the brief in this matter was obtained

to September 12, 2008, and Appellant's Brief was filed on or before

that date.

                         STATEMENT OF THE GROUNDS FOR APPELLATE

REVIEW

     Jurisdiction for this appeal is granted by N.C.G.S. §§ 7A-

27(b), 15A-1444(a) and 15A-1446(d)(2007).      This appeal is from a

final judgment.

                      STATEMENT OF THE FACTS

     On December 1, 2006, Richard Massey was a penniless, homeless

man on the street who was accosted by a man in a conversion van

waiving money at him. (TVII 12, 17, 26, 48)     Mr. Massey went over

to the conversion van, conversed with the driver and asked him what

he wanted. (TVII 19, 46)     The driver was an undercover police

officer who asked Mr. Massey to sell him "a $20," slang for twenty-

dollars worth of crack cocaine. (TVII 19, 28)    A $20 rock of crack

cocaine is .2 or .3 grams in weight. (TVII 19)        The undercover

officer pulled the van off the road and Mr. Massey came over to the

van. (TVII 19, 29) Other officers were hidden in the van, including

the arresting officer who was hiding directly behind the driver's

seat. (TVII 27) The undercover buy officer and the arresting
                                        4
officer who was seated behind the driver's seat disagreed on

whether   or   not   there   was    a    second   conversation   between   the

undercover buy officer and Mr. Massey, but the arresting officer

testified that he heard conversation between them, some sort of

exchange was made, and the buying officer said the code words for

the officers hiding in the van to jump out of the van and arrest

Mr. Massey. (TVII 19, 29)          The undercover buy officer marked his

$20 bill of buy-money by coloring-in the upper right-hand corner

zero of the $20 bill with black ink. (TVII 15) As Mr. Massey was

being arrested, he dropped the $20 bill, but the arresting officer

picked it up and saw the colored-in zero that the buying officer

used to mark his $20 bills. (TVII 30) The $20 bill was returned to

the undercover buy officer to re-use, not put into evidence. (TVII

30)

      There was no evidence at trial that Mr. Massey had ever

previously sold any crack cocaine or any other drugs before.           There

was no evidence that Mr. Massey had been approaching vehicles or

pedestrians prior to the officer waiving money at him to bring him

to the officers. (TVII 17-18)           The undercover buy officer initiated

the sale. (TVII 17, 45-46)         Mr. Massey had no money on him at all.

(TVII 30-31, 47)     Mr. Massey had no other drugs on him. (TVII 30-

31, 47)   He had no paraphernalia to facilitate selling drugs: he

had no scales to weigh drugs, and he had no baggies, rubber bands,

or other packaging materials to facilitate selling drugs. (TVII 30-
                                5
31, 47) All Mr. Massey had on him was a small pipe and a small

copper wire, which the arresting officer testified were commonly

used for smoking crack. (TVII 30, 41)        The State offered no

evidence at any point, even at sentencing, that Mr. Massey had any

prior disposition to sell crack and had no prior convictions for

drug sales. (R 35-37, TVIII 49-50)

     Mr. Massey was a homeless man with a long-standing drug

addiction. (R 72-74)

     The Defendant offered no evidence at trial. (TVII 68) Defense

counsel requested the pattern jury instruction on entrapment, based

on the evidence presented at trial. (R 17A, TVII 60)      The Judge

denied this instruction request. (R 11-17A, TVII 67)

     The weight of the rock of crack cocaine sold to the officer

was .12 grams. (TVII 52)   The undercover buy officer testified that

a $20 rock of crack cocaine is approximately .2 or .3 grams and

about the size of the end of a pencil eraser. (TVII 10)

     The prosecutor used her prosecutorial discretion and chose to

pursue Mr. Massey as a habitual felon for this offense.      In the

habitual felon trial, the prosecutor submitted the indictments for

possession with intent to sell and deliver, and the sale, for which

Mr. Massey had just been convicted by that same jury as State's

Exhibits 8 and 9. (R 23-24, TVIII 21-23)        She then submitted

records of convictions of three prior felony offenses as evidence

in the guilt/innocence phase of the habitual felon trial, as
                                         6
State's Exhibits 10, 12 and 14, and submitted indictments in those

matters as State's Exhibits 11, 13 and 15. (R 25-33, TVIII 24-34)

In State's Exhibit 13, the indictment used contained an additional

felony of larceny which was not part of the Judgment submitted to

the jury. (R 28-29, TVIII 27-30)            The jury was allowed to take all

of those exhibits into the Jury Room at the habitual felon trial

without objection. (TVIII 46) The jury returned a verdict of guilty

of habitual felon. (R 34, TVIII 47)

      At sentencing, the defense counsel pointed out that the State

had used its discretion to give a plea deal to a drug trafficker

selling $20,000.00 worth of crack cocaine which got the drug

trafficker a lesser sentence than Mr. Massey for selling 1/10 of 1

gram. (TVIII 52)         In imposing Mr. Massey's sentence, the Judge

found mitigating factors and stated that he could not sentence Mr.

Massey to any less time than the bottom of the mitigated range for

the criminal record offered to the Court, Record Level VI with 32

points. (R 75-78, TVIII 56-58)

                                     ARGUMENT

      1.     IT WAS ERROR FOR THE TRIAL COURT TO FAIL TO GIVE THE PATTERN
JURY INSTRUCTION ON ENTRAPMENT REQUESTED BY DEFENSE COUNSEL IN
VIOLATION OF N.C.G.S. § 15A-1231, 15A-1232, CASE LAW, AND THE DUE PROCESS
AND JURY TRIAL RIGHTS CONTAINED IN N.C. CONSTITUTION ARTICLE I, §§ 19, 24
AND U.S. CONSTITUTIONAL AMENDMENTS 5, 6 AND 14. (R 8, 11-17A; TVII 12-13, 17-19,
27, 29-31, 44, 46-47, 48, 60-61, 67; TVIII 3-13)
                                7
Standard of Review: Whether the trial court erroneously instructed
the jury by failing to submit a requested jury instruction raises a
question of law and a de novo standard of review applies. See
Kinsey v. Spann, 139 N.C.App. 370, 372-373, 533 S.E.2d 487, 490
(2000).    Whether evidence presented constitutes "substantial
evidence" is a question of law subject to a de novo standard of
review. State v. Hudgins, 167 N.C.App. 705, 606 S.E.2d 433
(2005)(citing State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649
(1982)).

     At the charge conference defense counsel requested the pattern

jury instruction on the defense of entrapment, which is a correct

statement of the law.      The Court denied the request for the

entrapment instruction.

     "Entrapment is ‘the inducement for one to commit a crime not

contemplated by him for the mere purpose of instituting a criminal

prosecution against him.'" State v. Stanley, 288 N.C. 19, 27, 215

S.E.2d 589, 594 (1975).   "Entrapment is the conception and planning

of an offense by an officer, and his procurement of its commission

by one who would not have perpetrated it except for the trickery,

persuasion, or fraud of the officer." Sorrells v. U.S., 287 U.S.

435, 454, 53 S.Ct. 210, 217 (1932)(concurring opinion of Justice

Roberts 1932).

     The defense of entrapment consists of two elements: (1) the

inducement of another to commit a crime by government agents using

persuasion, trickery, or fraud, and (2) that the criminal plan or

intention to commit the crime originated in the minds of law

enforcement officers and not in the mind of the accused.   State v.

Walker, 295 N.C. 510, 246 S.E.2d 748 (1978).
                                 8
       Whether the evidence supports a defense of entrapment is

determined on a case-by-case basis.    See Sorrells v. U.S., 287 U.S.

435, 451, 53 S.Ct. 210, 216 (1932) ("The question in each case must

be determined by the scope of the law considered in the light of

what may fairly be deemed to be its object.");     State v. Stanley,

288 N.C. 19, 32, 215 S.E.2d 589, 597 (1975) (Whether the evidence

presents entrapment as a defense is a question of fact for the jury

to decide.)

       The evidence at trial showed that Mr. Massey was a penniless,

homeless man on the street accosted by an undercover police officer

who waived money at Mr. Massey to get his attention.      Mr. Massey

went over to the van, conversed with the undercover officer and

asked what he wanted.    The undercover officer asked Mr. Massey to

sell him twenty dollars worth of crack cocaine.       The undercover

officer pulled the van off the road and Mr. Massey came over to the

van.    Mr. Massey had a second conversation with the undercover

officer and Mr. Massey gave the officer a rock of crack cocaine of

approximately 1/10 of one gram in exchange for $20.00, and the

other officers hiding in the van jumped out of the van and arrested

Mr. Massey.

       There was no evidence at this trial that Mr. Massey had ever

previously sold any crack cocaine (or other drugs) before.       Mr.

Massey had not been approaching vehicles or pedestrians prior to

the officers waiving the money at him to bring him to them.      The
                                 9
officer initiated the sale by waiving the money and asking to

purchase drugs.   Mr. Massey had no money at all besides the marked

$20 bill.   Mr. Massey had no other drugs.    Mr. Massey had no scales

to weigh drugs, and no packaging materials, such as rubber bands or

baggies, to facilitate sales.   What the evidence did show was that

Mr. Massey was a drug user.

     In Sorrells v. U.S., a North Carolina case decided by the U.S.

Supreme Court, the Court held that entrapment was shown where the

prohibition agent played on a veteran's desire to be a good host to

another former veteran.       Mr. Sorrells was persuaded to sell

intoxicating liquor to an undercover prohibition agent while the

agent visited at Sorrell's home.   The U.S. Supreme Court held that

the facts in Sorrells established as a matter of law that there was

entrapment.   The Supreme Court held that is was clear that the act

for which defendant Sorrells was prosecuted was instigated by a

government agent, that the act was a creation of the agent's

purpose, and that Sorrells had no prior disposition to commit that

crime, but was lured by the agent to commit the crime of selling

him intoxicating liquor by the agent's requests for liquor and the

agent's taking advantage of the sentiment aroused by reminiscences

of former World War I veterans.        The Court was offended by this

gross abuse of the authority given for the purpose of detecting and

punishing crime being used for the creating of criminals, and said
                                    10
such conduct deserved the severest condemnation. Sorrells v. U.S.,

287 U.S. 435, 53 S.Ct. 210 (1932).

     In Sherman v. U.S., 356 U.S. 369, 78 S.Ct. 819 (1958), a

government drug informer met Sherman at a doctor's office where

both were being treated to overcome narcotics addition.                The

government informer asked Sherman for a source of narcotics because

his treatment was not working.       The government informer persuaded

Sherman to help him find drugs to ease his suffering.          Sherman did

find the government informer narcotics and shared the drugs and the

cost with the informer.    The government informer identified Sherman

as a seller after Sherman provided and shared drugs with the

informer several times.         Sherman was arrested and convicted of

selling narcotics to the informer.            When Sherman appealed his

conviction, the U.S. Supreme Court held this evidence disclosed

entrapment as a matter of law, based on the undisputed testimony of

the prosecution's witnesses.         The Court emphasized the lack of

evidence Sherman was in the drug trade, as opposed to a user, and

the fact that no narcotics were found in his home when searched

after Sherman's arrest.        The Court further held that Sherman's 9-

year-old    and   5-year-old    convictions   for   narcotic   sales   were

insufficient to prove Sherman had a predisposition to commit this

crime, since the record showed Sherman was trying to overcome his

narcotics addition at the time he was approached by the government

informer.
                                      11
      In State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975), the

N.C. Supreme Court held that the facts established entrapment as a

matter of law where the evidence showed that 16-17 year old Stanley

was induced to find and sell drugs to a twenty-eight-year-old

undercover police officer who befriended the teenager and asked him

 to find and buy drugs for him for the purpose of prosecuting the

boy for the sales.      The Court held that the government had played

on the weaknesses of an innocent party, and by beguiling him into

committing crimes which he otherwise would not have committed, law

enforcement had exceeded its proper purpose and entrapped Stanley.

 The Court held that the boy's prior conviction for possession of

marijuana did not indicate any predisposition to commit the crime

of possession with intent to sell and distribute LSD and therefore

there was "not a scintella of evidence to show any predisposition"

on   the   part   of   Stanley   to   possess   feloniously   a   controlled

substance with intent to distribute it.         State v. Stanley, 288 N.C.

19, 215 S.E.2d 589 (1975).



      In State v. Walker, 295 N.C. 510, 246 S.E.2d 748 (1978), the

North Carolina Supreme Court found that the evidence did not show

entrapment and therefore no entrapment instruction needed to be

given. In Walker, undercover SBI agent Lewis made two buys of

heroin from Walker at his home on 8/26/1976 and on 9/14/1976.

Walker was convicted of those sales and those convictions were the
                               12
subject of Walker's appeal.    Prior to making these two buys of

heroin from Walker in 1976, undercover SBI agent Lewis had made two

earlier buys in 1975.    In between undercover SBI agent Lewis'

heroin buys from Walker in early 1975 and Lewis' buys in August and

September 1976, Walker pled guilty in 1975 and served a prison

sentence for other heroin sales, unrelated to Walker's sales to

undercover SBI agent Lewis in 1975 and 1976.   While incarcerated,

Walker was charged with the two early 1975 sales to undercover SBI

agent Lewis.     Walker contacted an SBI agent and the State's

Attorney General about becoming a government informant in exchange

for having the two pending charges for the early 1975 sales

dismissed.     After completing his prison sentence, Walker was

arrested when he made the 2nd set of sales to undercover SBI agent

Lewis at Walker's home in 1976; at trial for those sales, Walker

claimed he was entrapped because his two sales in 1976 were part of

his work as a law enforcement drug informer.    However, the Court

found that Walker did not supply any information to law enforcement

between the time he got out of prison in 1975 and his arrest after

the 9/14/1976 sale to undercover SBI agent Lewis,   and that there

was no question Walker was selling drugs before he claimed he was

induced into making the later sales.    The Court held that under

these facts no entrapment instruction needed to be given because

both of the required elements of entrapment were not shown: the

intention to commit the crime did not begin with the government
                                 13
officers;   Walker had formed the plan to sell drugs already. Id. at

513, 750.   Justice Exam dissented, holding a new trial was required

for the Court's failure to submit the entrapment instruction so the

jury could determine the facts under proper instructions. Id. at

519, 753.   The dissenting opinion makes clear that the issue is to

be determined from the point of view of the accused. Id.

     In State v. Burnette, 242 N.C. 164, 87 S.E.2d 191 (1955), the

N.C. Supreme Court found that Burnette was not entitled to any

defense of entrapment where Burnette had made a series of obscene

and threatening telephone calls to the prosecuting witness, stating

that he would have her that day and would come to her house to kill

her if necessary, where the prosecuting witness went to meet

Burnette, after calling police and allowing deputies to conceal

themselves in her car and at the location where Burnette had told

her to meet him.    Burnette claimed he was entrapped to commit a

crime because she went to the place he had designated with the

deputies, and let him in the car.       Burnette began assaulting her

until the deputies intervened.    The Court held that the evidence

showed that the crime of assault with intent to commit rape

originated in the mind of Burnette, and not in the mind of the

deputies, and that the deputies had set a trap to catch Burnette in

the execution of a crime Burnette himself had conceived.    The Court

held that there was no evidence of entrapment in that case and
                                14
Burnette was not entitled to an instruction on entrapment.    State

v. Burnette, 242 N.C. 164, 173-174, 87 S.E.2d 191, 197 (1955).

     In a jury trial, it is the jury's role to determine the facts;

 the Court's role is to decide matters of law and explain to the

jury the law to be applied to the facts in determining their

verdict.   Smith v. Kappas, 219 N.C. 850, 15 S.E.2d 375, 377 (1941).

Ordinarily, whether the evidence presents a defense of entrapment

is a question of fact for the jury to decide.     State v. Stanley,

288 N.C. 19, 32, 215 S.E.2d 589, 597 (1975).     However, the Court

can find entrapment as a matter of law, but only where the

undisputed testimony and the required inferences compel a finding

that the accused was lured by the officers into an action he was

not predisposed to take. Id. Conversely, the Court may deny the

entrapment defense instruction only where, as a matter of law,

there is no credible evidence from which a reasonable jury may find

in the accused's favor.    See Matthews v. U.S., 485 U.S. 58, 108

S.Ct. 883 (1988); State v. Burnette, 242 N.C. 164, 173-174, 87

S.E.2d 191, 197 (1955).      Ordinarily, the Court's role is to

determine whether there is any credible evidence in support of the

instruction of entrapment.   State v. Burnette, 242 N.C. 164, 173,

87 S.E.2d 191, 197 (1955).

     N.C.G.S. § 15A-1231 sets out the procedural requirements

surrounding the giving of jury instructions; N.C.G.S. § 15A-1232

requires the Judge to fairly, impartially and accurately instruct
                                15
the jury on all material features of the case.     N.C.G.S. §§ 15A-

1231, 15A-1232 (2007).   N.C.G.S. § 15A-1232 has been expressly held

to require the Court to declare and explain the law arising on the

evidence that relates to each substantial feature of the case.

State v. Blue, 356 N.C. 79, 565 S.E.2d 133 (2002); see also State

v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).       Any defense

raised by the evidence is deemed a substantial feature of the case

and requires an instruction. State v. Smarr, 146 N.C.App. 44, 54,

551 S.E.2d 881, 888 (2001), disc. review denied, 355 N.C. 291, 561

S.E.2d 500 (2002).   Part of the State's obligation to prove every

element of the offense charged includes the burden of overcoming

any defense raised by the evidence produced at trial.   Mullaney v.

Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (1975); State v. Cooke, 94

N.C.App. 386, 380 S.E.2d 382 (1989).        The State's burden of

overcoming a defense raised by the evidence in order to carry its

burden of proof beyond a reasonable doubt on every element of the

crime charged is required by the due process clause of the 14th

Amendment.   Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (1975).

 An accused is entitled to an instruction on any recognized defense

for which there exists sufficient evidence for a reasonable jury to

find in his favor.   Matthews v. U.S., 485 U.S. 58, 108 S.Ct. 883

(1988); State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)

("Substantial evidence is evidence which a reasonable person would

find sufficient to support a conclusion.").   A jury instruction is
                                 16
required to be given on a defense when there is substantial

evidence of each element of the defense when the evidence is viewed

in the light most favorable to the defendant. State v. Ferguson,

140 N.C.App. 699, 706, 538 S.E.2d 217, 222 (2000), disc. review

denied, 353 N.C. 386, 547 S.E.2d 25 (2001).

     A correct jury charge on the law to be applied by the jury is

a fundamental right of every accused.   State v. Orr, 260 N.C. 177,

181, 132 S.E.2d 334, 337 (1963).   The accused has the right to have

his case considered by an unbiased and properly instructed jury,

regardless of whether the accused's story may sound unreasonable or

improbable.   State v. Staley, 292 N.C. 160, 163, 232 S.E.2d 680,

683 (1977).   Failure to instruct the jury upon a substantive or

material feature of the evidence and the law that applies to that

evidence is reversible error. State v. Ward, 300 N.C. 150, 266

S.E.2d 581 (1980); State v. Hudgins, 167 N.C.App. 705, 606 S.E.2d

443 (2005).

     Implicit in the right to a properly instructed jury is the

recognition that without a jury instructed in all the substantive

features of a case, an accused's right to a fair, impartial and

unbiased jury is infringed, the right to a fair trial is denied,

and due process is undermined.   Failure to properly instruct a jury

on a defense raised by the evidence violates due process.       See

Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (1975).
                                   17
     An accused's right to a trial by a properly instructed jury is

guaranteed by the N.C. Constitution, article I, §§ 19 and 24. N.C.

CONST. art. I, §§ 19 and 24;      see Smith v. Kappas, 219 N.C. 850, 15

S.E.2d 375, 377 (1941).     An accused's right to have all issues of

fact determined by a fair and impartial jury is part of the right

to a jury trial guaranteed by both State and Federal Constitutions.

State v. Field, 75 N.C.App. 647, 331 S.E.2d 221 (1985).             The jury

trial   right   is   guaranteed   by   the   6th   Amendment   of   the   U.S.

Constitution and guaranteed to criminal defendants in state court

through the 14th Amendment.       Duncan v. Lousiana, 391 U.S. 145, 88

S.Ct. 1444 (1968); State v. Field, 75 N.C.App. 647, 331 S.E.2d 221

(1985).

     In Matthews v. U.S., 485 U.S. 58, 65, 108 S.Ct. 883, 887

(1988), the Court stated that a plea of not guilty forces the

prosecution to prove all the elements of the crime charged and

raises the defense of entrapment, citing Sorrells v. U.S., 287 U.S.

435, 53 S.Ct. 210 (1932).         The Court in Matthews reiterated an

earlier holding in Sherman v. U.S., 356 U.S. 369, 377, 78 S.Ct.

819, 823 (1958), that the question of entrapment is one for the

jury, rather than a decision of the Court.            Matthews at 63, 886.

The North Carolina Supreme Court has held that whether the evidence

presents entrapment is a question of fact for the jury to decide.

State v. Stanley, 288 N.C. 19, 32, 215 S.E.2d 589, 597 (1975).
                               18
     Due process rights under the 5th and 14th Amendments of the

U.S. Constitution, the jury trial rights of the 6th and 14th

Amendments to the U.S. Constitution and the due process and jury

trial rights contained in N.C. Constitution article I, §§ 19 and

24, require the trial court to fairly submit the case to the jury,

and to preserve for jury determination all issues of fact as the

province of the jury and not the Court.    Because entrapment was

raised by the evidence and is an issue of fact for the jury to

determine, Mr. Massey's due process and jury trial rights were

violated by the failure to give the instruction on the defense of

entrapment to the jury to consider.

     In Sorrells, Sherman, Stanley, and in Walker and Burnette, the

appellate Courts looked at the circumstances of the crime and of

the accused, to determine from the perspective of the accused,

whether undisputed evidence of entrapment showed entrapment as a

matter of law, or whether the accused was entitled to an entrapment

instruction from which the jury must find the facts and decide

whether entrapment had occurred in the case.   Sorrells v. U.S., 287

U.S. 435, 53 S.Ct. 210 (1932); Sherman v. U.S., 356 U.S. 369, 78

S.Ct. 819 (1958); State v. Stanley, 288 N.C. 19, 215 S.E.2d 589

(1975); State v. Walker, 295 N.C. 510, 246 S.E.2d 748 (1978); State

v. Burnette, 242 N.C. 164, 87 S.E.2d 191 (1955).   By the entrapment

defense, the Courts have protected vulnerable people from over-

reaching by law enforcement who blurred the line between detecting
                                        19
and preventing crime, and creating crime by persuading others to

commit crimes they would not otherwise have committed.                  Sherman v.

U.S., 356 U.S. 369, 78 S.Ct. 819 (1958); Sorrells v. U.S., 287 U.S.

435, 53 S.Ct. 210 (1932); State v. Stanley, 288 N.C. 19, 215 S.E.2d

589 (1975).    Persuasion, like beauty, is in the eye of the beholder

- its existence is to be determined from the perspective of the

accused.     If a man has nothing, he is persuaded with less than a

man who possesses the fundamentals of life.            It is clear from the

case law that what is persuasive to the accused is dependent upon

the   accused's    individual     circumstances.           No    person   is    more

vulnerable    than   one    who   is    penniless    and    homeless.          Where

entrapment    is   raised   by    the    evidence,   but        not   indisputably

established as a matter of law, as in this case, Mr. Massey is

entitled to have a jury properly instructed on the defense of

entrapment decide whether government agents offering money to a

penniless, homeless man induced him to commit a crime he would not

have otherwise committed.

      Under N.C.G.S. § 15A-1443(b), where the accused's rights under

the Constitution of the United States have been violated, he is

prejudiced, and the burden is on the State to demonstrate beyond a

reasonable doubt that the error was harmless. N.C.G.S. § 15A-

1443(b)(2007).       The State cannot carry its burden of proof of

demonstrating that failure to submit the jury instruction on the

defense entrapment to the jury did not prejudice Mr. Massey.                    Even
                                       20
if the error were considered under N.C.G.S. § 15A-1443(a), under

the prejudice standard for rights other than those arising under

the U.S. Constitution, prejudice is shown where the Court's failure

to instruct the jury withdrew a complete defense from the jury's

consideration, which, if found by the jury, would have allowed the

Mr. Massey to go free, as would the defense of entrapment.                  There

was evidence from which a reasonable jury could find that the

criminal plan was instigated by the government agent, was the

creation of the agent's purpose, and Mr. Massey was persuaded by

the agent to commit a crime which was not his own conception.

Therefore, the instruction was required.            As the U.S. Supreme Court

stated in Sorrells v. U.S., "The defense is available, not in view

that the accused though guilty may go free, but that the government

cannot be permitted to contend that he is guilty of a crime where

the government officials are the instigators of his conduct."

Sorrells at 452, 216.        Mr. Massey was prejudiced by the failure to

give the entrapment instruction and is entitled to a new trial.

      2.    THE COURT COMMITTED ERROR OR PLAIN ERROR BY ALLOWING THE
STATE TO SUBMIT INDICTMENTS IN THE HABITUAL FELON TRIAL AS STATE'S
EXHIBITS 11, 13 AND 15 TO PROVE THE THREE FELONIES UNDERLYING THE HABITUAL
FELON STATUS CHARGE AGAINST MR. MASSEY, IN VIOLATION OF N.C.G.S. §§ 14-7.4
AND 15A-1221(B). (R 8-10, 20-22, 23-24, 27, 30, 33, 34; TV III 22-23, 26-27, 29-30,
32-34, 46, 47)
                                   21
Standard of Review:         The standard of review for admission of

evidence that violates a statutory prohibition is de novo review.

State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985) (citing State v.

Bryant, 189 N.C. 112, 115, 126 S.E. 107, 109 (1925) holding that

the trial judge's expression of opinion is reviewable on appeal

without objection "in like manner with admission of evidence made

incompetent by statute"); see State v. Jaynes, 353 N.C. 534, 549

S.E.2d 179 (2001); see State v. Flowers, 347 N.C. 1, 489 S.E.2d 391

(1997); see State v. Evans, 153 N.C.App. 313, 569 S.E.2d 673

(2002); see State v. Choppy, 141 N.C.App. 32, 38, 539 S.E.2d 44, 48

(2000).

     This    error    was   preserved   for    appellate    review   because

submission    of     indictments   to   a     jury   as   evidence   in   the

guilt/innocence phase of a trial violates a statutory prohibition.

N.C.G.S. § 15A-1221(b)(2007); see N.C.G.S. § 14-7.4(2007); State v.

Flowers, 347 N.C. 1, 489 S.E.2d 391 (1997). No objection is

required to preserve for appellate review an error which violates a

statutory mandate.      State v. Jaynes, 353 N.C. 534, 549 S.E.2d 179

(2001); State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985); State v.

Evans, 153 N.C.App. 313, 569 S.E.2d 673 (2002).

     In the habitual felon trial, the prosecutor submitted into

evidence indictments as State's Exhibits 11, 13, and 15 for the

prior convictions she was using to prove habitual felon status, in

addition to three Judgments of conviction. (R 27, 28-29, 30, 33,
                                    22
TVIII 24-34)   She also submitted into evidence the indictments for

the substantive offenses for which the defendant had just been

found guilty by this jury, as State's Exhibits 8 and 9. (R 23-24,

TVIII 20-30)   No instructions were given to the jury about any of

the indictments or how they were to use them. (TVIII 20-23, 26-34)

     State's Exhibit 13, the indictment in 93 CRS 33152, contains

allegations of breaking and entering and a crime of felony larceny.

(R 30) State's Exhibit 14, the Judgment and Commitment in 93 CRS

33152, was a Judgment solely for breaking and entering a motor

vehicle. (R 31-32)     Defendant was not convicted of the larceny

charge contained in State's Exhibit 13 in 93 CRS 33152. (R 44)

     N.C.G.S. § 14-7.5 states that the proceedings on an indictment

for a habitual felon "shall be as if the issue of the habitual

felon were a principal charge" of which the jury may find the

defendant guilty or not guilty. State v. Gilmore, 142 N.C.App. 465,

542 S.E.2d 694 (2001); N.C.G.S. § 14-7.5 (2007). N.C.G.S. § 15A-

1221(b)   prohibits   publication    of    an   indictment   to   the   jury.

N.C.G.S. § 15A-1221(b)(2007).         The purpose of the prohibition

against publishing indictments to a jury during the guilt/innocence

phase is to avoid confusing the jury. State v. Flowers, 347 N.C. 1,

35-36, 489 S.E.2d 391, 411 (1997); see State v. Jones, 157 N.C.App.

472, 579 S.E.2d 408 (2003).    In Flowers, the Court held that the

prohibition against the publication of indictments to the jury

applies during jury selection and the guilt/innocence phases of a
                                  23
criminal trial and applies to those indictments that pertain to the

case being tried. Flowers at 35, 411.       In an habitual felon trial,

the issue is whether the accused has been convicted of the three

prior substantive felony convictions as charged in the indictment.

The evidence submitted by the State to prove those convictions is

critical proof which either supports or does not support the guilt

or   innocence   of   the   accused   of   the   habitual   felon   status

indictment.   see State v. Gilmore, 142 N.C.App. 465, 542 S.E.2d 694

(2001).

      Each of the indictments in State's Exhibits 11, 13, and 15

contain statements that "[t]he jurors for the state upon their oath

present" that the accused did "unlawfully and willfully" and

"feloniously" commit the offense alleged in the indictment, the

indictment was signed by the Assistant District Attorney, witnesses

were listed, and each contained a statement that the bill was found

to be a "true bill" by twelve or more "Grand Jurors" and signed by

the Grand Jury foreman, except that the indictment in 93 CRS 33152

does not contain the page with the Grand Jury Foreman's signature

on it, but still contains the stilted language of indictments held

to be confusing to a jury. (R 27, 30, 33)         The indictment used as

State's Exhibit 13 submitted to the jury a felony charge not on the

judgment submitted as State's Exhibit 12 (R 28-29) because Mr.

Massey was not convicted of that charge. (R 44)             The jury took
                                   24
these documents to the jury room during jury deliberations on the

habitual felon charge.

     Submission into evidence of the indictments for the offenses

on which the jury had just returned verdicts of guilty (State's

Exhibits 8 and 9) as well as State's Exhibits 11, 13 and 15

probably lead the jury to believe all the allegations before them

were true.    Although the concern over confusing the jury by stilted

and strange language is a real concern, a primary reason for not

admitting indictments in the guilt/innocence phase which pertain to

the case being tried is that the indictments, unlike Judgments, may

contain charges of which the defendant was not convicted, as in

this case.

     The     test   for   prejudicial   error   under   N.C.G.S.   §   15A-

1443(a)(2007) is whether there is a reasonable possibility that the

evidence complained of contributed to the conviction. State v.

Milby, 302 N.C. 137, 142, 273 S.E.2d 716, 720 (1981).          Because of

the erroneous admission of the indictments in the guilt/innocence

phase in the habitual felon trial in violation of the statutory

prohibition against doing so, where one of those indictments

contained a felony charge of which the defendant was not convicted,

there is a reasonable possibility that they jury convicted Mr.

Massey of the status of being an habitual felon based on a charge

on which Mr. Massey was not convicted.          Mr. Massey was prejudiced
                                      25
by this at his habitual felon trial.           Mr. Massey's habitual felon

conviction must be reversed and remanded for a new trial.

     3.   THE COURT ERRED OR COMMITTED PLAIN ERROR IN SENTENCING
DEFENDANT MASSEY AT CRIMINAL RECORD LEVEL VI, CLASS C, BASED ON THE
CRIMINAL RECORD WORKSHEET DUE TO ERRORS ON THE WORKSHEET AND IN
CALCULATION OF HIS RECORD. (R 8, 35-37, 38, 75-78; TVIII 49, 56-58)(ASSIGNMENT OF
ERROR #4)


Standard of Review:    The calculation of the defendant's prior
record level is a question of law governed by a de novo standard of
review. State v. Fraley, 182 N.C.App. 683, 691, 643 S.E.2d 39, 44
(2007).

      A   sentencing    error    is   reviewable    on   appeal    without    an

objection at the sentencing hearing. See State v. Reynolds, 161

N.C.App. 144, 587 S.E.2d 456 (2003); N.C.G.S. § 15A-1446(d)(18).

Whether the State met its burden of proof at the sentencing hearing

is a challenge based on insufficient evidence as a matter of law

preserved without any objection at the sentencing hearing. State v.

Coa, 175 N.C.App. 434, 626 S.E.2d 301 (2006).

      Mr. Massey was sentenced as a habitual felon at Record Level

VI with 32 points, according to the sentencing worksheet. (R 35-38)

 A review of this sentencing worksheet reveals significant problems

in the preparation and calculation of Mr. Massey's record, and thus

the resulting sentence.

      At a sentencing hearing, the State must meet its burden of

proof by a preponderance of the evidence standard that a prior
                                 26
conviction exists, and that the person before the Court is the same

person. N.C.G.S. § 15A-1340.14 (2007).

     The worksheet shows that Mr. Massey was assigned criminal

record points for a separate "conviction" of habitual felon in 98

CRS 120532, with a date of conviction of 6/26/1998. (R 35-36) Being

a habitual felon is a status, used to enhance sentencing upon

conviction of a substantive felony; it is not a separate offense,

and as such, does not support a separate sentence. State v. Allen,

292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977) ("[T]he [habitual

felon] status itself, standing alone, will not support a criminal

sentence.")   The habitual felon status was erroneously counted as a

separate 6 point conviction for criminal record purposes, as shown

on the cover worksheet. (R 35)    The underlying substantive felony

conviction to which that habitual felon status attached was a Class

I Felony in 98 CRS 17532 and should have been counted only for the

Class I Felony as 2 points.   State v. Vaughn, 130 N.C.App. 456, 503

S.E.2d 110, affirmed, 350 N.C. 88, 511 S.E.2d 638 (1998).   Another

Class I Felony conviction was sentenced on the same day and also

counted.   Only 2 points for the Class I Felony in 98 CRS 17532 were

countable, not 10 points.

     Six additional points were assigned for a second Class B2, C

or D conviction, according to the worksheet. (R 35) On the prior

convictions list, the first three convictions listed have no file

number. (R 36)   The first of those was listed as a Class D felony.
                                   27
 There are no other Class C, B2 or D Felonies besides this one

listed without a file number and the Class C Habitual Felon status

erroneously counted, as addressed above. (R 35-38) Despite a

written request for a certified copy of Mr. Massey's entire

Mecklenburg County record of convictions, no B, C, or D felony

convictions appear on Mr. Massey's certified record, nor do the

three convictions listed on the prior convictions sheets of the

Criminal Record Worksheet without file numbers appear on Mr.

Massey's certified record for the dates of conviction shown on the

Criminal Record Worksheet list of convictions. (R 36, 38-67)

     The conviction of breaking or entering in 93 CRS 33152 showing

a date of conviction of 8/3/1993 was used as one of the underlying

prior felony convictions to support the habitual felon status for

which Mr. Massey was sentenced in this case. (R 20, 28-30, 36)        The

same offense of breaking and entering (and larceny) in 93 CRS 33152

appears as a duplicate on the criminal record worksheet listing of

convictions, as did a separate felony larceny conviction in 93 CRS

33152 of which Mr. Massey was not convicted. (R 28-29, 36, 44)

While the indictment in 93 CRS 33152 had allegations of breaking

and entering and larceny on it (R 30), the judgment of conviction

in 93 CRS 33152 shows only a conviction for breaking and entering.

(R 28-29)    The conviction for possession of burglary tools entered

on the same date, 8/3/1993, in file number 93 CRS 33159 is listed

twice   on   the   Criminal   Record   Worksheet   listing   convictions,
                                        28
although there is only one conviction for possession of burglary

tools for that file number and date. (R 36, 38-67, 70-71)

      The    misdemeanor      larceny    listed      with    no   file   number      and

conviction     date    of    6/29/88    does   not       appear   on   Mr.   Massey's

certified record, and there are no convictions on 6/29/88 on his

certified record, but misdemeanor larceny charges were dismissed on

6/29/98. (R 46-47)          The misdemeanor hit and run listed with a file

number of 88 CRS 68268 is not a conviction, as no judgment of

guilty and no disposition is stated on his record for that offense.

(R 36, 42, 51-52)        It appears that multiple misdemeanor convictions

obtained in the same session of district court were counted for

felony      sentencing      purposes    in   violation       of   N.C.G.S.     §   15A-

1340.14(b)(5). N.C.G.S. § 15A-1340.14(b)(5)(2007); State v. Fraley,

182 N.C.App. 683, 691, 643 S.E.2d 39, 44 (2007).                       A misdemeanor

offense of speeding to elude arrest which was counted is not a

countable misdemeanor for felony sentencing because it is not one

of    the    traffic     misdemeanors        set    out     in    N.C.G.S.    §    15A-

1340.14(b)(5). N.C.G.S. § 15A-1340.14(b)(5) (2007).



      Aside from the Judgments which were used to support the

Habitual Felon status indictment, the State did not submit any

proof of any of the prior convictions used to calculate Mr.

Massey's criminal record as level VI.              Statements by the prosecutor

and   a     Criminal     Record   Worksheet        are    insufficient       proof    of
                                       29
defendant's criminal record level.            State v. Eubanks, 151 N.C.App.

499,   505,   565    S.E.2d   738,   742   (2002).      The   Criminal   Record

Worksheet with its list of convictions was incorrect, containing

multiple counting of the same felony convictions, "convictions" for

which defendant was not convicted, counted as a "conviction" a

status which is not a conviction, listed felonies multiple times

including a felony already used to support the habitual felon

status, counted traffic misdemeanors not permitted to be counted

for felony sentencing, counted as convictions offenses with no file

number and which do not appear on Mr. Massey's certified criminal

record, and counted multiple misdemeanors for convictions entered

in the same session of Court.           Defense counsel did not stipulate

that the convictions were correct, but stated his calculations

based on the sentencing worksheet indicated level VI. (TVIII 49)

But even if counsel had erroneously stipulated to record level VI

based on an incorrect record Worksheet, which is denied, the trial

court's assignment to Mr. Massey of record level VI is an incorrect

conclusion of law requiring the case to be remanded for re-

sentencing. State v. Fraley, 182 N.C.App. 683, 643 S.E.2d 39

(2007).   The State's submission to the Court of a Criminal Record

Worksheet     without   any    further     proof   of   the   convictions     is

insufficient    to    meet    the    State's   burden   of    proof,   even   if

uncontested by the defendant.          State v. Riley, 159 N.C.App. 546,

583 S.E.2d 379 (2003).
                                   30
     These errors show the calculation of Mr. Massey's criminal

record   used   for   sentencing    him   as   a   habitual   felon   was

fundamentally flawed.      Without file numbers for some of the

offenses used in calculating his record, it is impossible to know

whether those charges are actually charges that appear on his

record which were dismissed, or whether they appear on the record

in error.    Because there was no proof by a preponderance of the

evidence of convictions which would support a sentence at Record

Level VI, Mr. Massey's sentence is unlawful.         At least 14 points

were counted in error:     when the twelve points for the habitual

felon status offense which cannot be sentenced separately and the

points for the Class D Felony without a file number are removed,

one point for misdemeanor larceny which has no file number and does

not appear on Mr. Massey's certified record, and one point for

misdemeanor speeding to elude arrest are removed, and points for

duplicate convictions and convictions that occurred in the same

court session are removed, it appears Mr. Massey properly should be

sentenced in criminal history Level V with at most 18 points, not

32 points.    Thus, this was not a harmless error.

     Defendant was prejudiced by incorrect calculation of his

criminal record and his sentence is not supported by sufficient

evidence.    He is entitled to a new sentencing hearing.

                             CONCLUSION
                                31
     For the errors shown in failure to give the jury instructions

on entrapment, Mr. Massey is entitled to a new trial on the

substantive felonies of possession with intent to sell or deliver

and sale of cocaine.   For erroneous admission of indictments in the

guilt/innocence phase of his habitual felon trial, Mr. Massey, is

entitled to a new trial for the habitual felon charge.      For the

errors in calculation of his criminal record and sentencing, Mr.

Massey is entitled to a new sentencing hearing.



     Respectfully submitted this the ___ day of September, 2008.




                               ________________________________
                               L. Jayne Stowers
                               Attorney for Appellant
                               Suite 102, 811 West Fifth Street
                               Winston-Salem, NC 27101
                               Telephone: (336) 761-8950
                               Email: S-JPA@triad.rr.com
                               NC State Bar # 14323
                                  32
                      CERTIFICATE OF SERVICE

     This is to certify that the undersigned has this date served

this paper (Appellant's Brief in State v. Massey) in the above-

entitled action upon all other parties to this cause by depositing

a copy hereof in a postpaid wrapper in a post office or official

depository under the exclusive care and custody of the United

States Post Office properly addressed to:

                    David P. Brenskelle
                    Assistant Attorney General
                    State of North Carolina
                    Department of Justice
                    42 North French Broad Avenue
                    Asheville, NC 28801




     This the _____ day of September, 2008.




                                  __________________________________
                                  L. Jayne Stowers
                                  Attorney for Appellant
                                  Suite 102, 811 West Fifth Street
                                  Winston-Salem, NC 27101
                                  Telephone: (336) 761-8950
                                  Email: S-JPA@triad.rr.com
                                  NC State Bar # 14323

								
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