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					NO. COA08-753                                  ELEVENTH-A DISTRICT

                   NORTH CAROLINA COURT OF APPEALS
                *************************************

STATE OF NORTH CAROLINA         )
                                )    From Harnett County
v.                              )       06 CRS 57619
                                )       07 CRS 6932
JAMES HOWARD ROWLAND            )
                                )
                Defendant       )

      ****************************************************

                     DEFENDANT-APPELLANT'S BRIEF


      ****************************************************
                         i

                      INDEX

TABLE OF CASES AND AUTHORITIES.................ii
QUESTIONS PRESENTED ............................1
STATEMENT OF THE CASE ..........................2
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
PURSUANT TO APPELLATE RULE 28(b)(4) ............3
STATEMENT OF THE FACTS .........................3
STANDARD OF APPELLATE REVIEW ...................8
ARGUMENT:......................................10

I.    THE TRIAL COURT COMMITTED ERROR IN ALLOWING
      THE PROSECUTOR TO PRESENT EVIDENCE THAT THE
      DEFENDANT DID NOT WAIVE HIS MIRANDA
      RIGHTS....................................10

II.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      IN DENYING THE DEFENDANT‘S MOTION TO
      DISMISS THE CHARGE OF SAFECRACKING AS THERE
      WAS INSUFFICIENT EVIDENCE TO SUBMIT THE
      CHARGE TO THE JURY........................17

III. THE TRIAL COURT ERRED BY FINDING THAT THE
     DEFENDANT HAD SEVENTEEN POINTS AND THAT HE
     WAS PRIOR RECORD LEVEL V FOR FELONY
     SENTENCING PURPOSES WHERE THE DEFENDANT HAD
     NOT PREVIOUSLY BEEN CONVICTED OF
     SAFECRACKING OR ANY OFFENSE THAT INCLUDED
     ALL THE ELEMENTS OF SAFECRACKING..........19

IV.   THE TRIAL COURT ERRED BY SENTENCING THE
      DEFENDANT AS A RECORD LEVEL V OFFENDER WHEN
      HE SHOULD HAVE BEEN SENTENCED AS A PRIOR
      RECORD LEVEL IV OFFENDER SINCE HE ONLY HAD
      FOURTEEN PRIOR RECORD POINTS BASED UPON THE
      WORKSHEET WITH ALL OF THE DEFENDANT‘S PRIOR
      CONVICTIONS LISTED........................23

V.    THE DEFENDANT WAS DENIED HIS RIGHT TO
      COUNSEL WHEN HIS COUNSEL FAILED TO OBJECT
      TO THE STATE‘S CONTENTION AND THE COURT‘S
      FINDING THAT THE DEFENDANT WAS A PRIOR
      RECORD LEVEL V ...........................30

CONCLUSION ...................................33
CERTIFICATE OF SERVICE .......................34
                                  ii

                   TABLE OF CASES AND AUTHORITIES

Federal Cases

Cuyler v. Sullivan
     446 U.S. 335, 64 L.Ed.2d 333 (1980)) .............................................. 30

Doyle v. Ohio
     426 U.S. 601, 49 L.Ed.2d 91 (1976)) ................................................ 10

Griffin v. California
     380 U.S. 609, 14 L.Ed.2d 106 (1965)) .............................................. 13

Miranda v. Arizona
     384 U.S. 436, 16 L.Ed.2d 694 (1966)) .............................................. 10

Strickland v. Washington
     466 U.S. 668, 80 L.Ed.2d 674 (1984) ........................................... 30,31

State Cases

State v. Bartley
     156 N.C.App. 490, 577 S.E.2d 319 (N.C.App.                      2003) ................ 26

State v. Bethea
     122 N.C. App. 623, 471 S.E.2d 430 (N.C.App.                      1996) .............. 20

State v. Braswell
     312 N.C. 553, 324 S.E.2d 241 (1985) ....................................... 31,32

State v. Canady
     330 N.C. 398, 410 S.E.2d 875 (1991) ............................. 8,22,28,29

State v. Colbert
     311 N.C. 283, 316 S.E.2d 79 (1984)................................................. 30

State v. Davidson
     77 N.C.App. 540, 335 S.E.2d 518 (N.C.App.                     1985)............... 9,30

State v. Earnhardt
     307 N.C. 62, 296 S.E.2d 649 (1982)................................................... 8

State v. Hargett
     157 N.C.App. 90, 577 S.E.2d 703 (N.C.App.                     2003)............ 21,28

State v. Hoyle
     325 N.C. 232, 382 S.E.2d 752 (1989) ................................... 8,10,13
                                        iii


State v. Jeffrey
     167 N.C.App. 575, 605 S.E.2d 672 (N.C.App.                                   2004) .................... 8

State v. Lane
     301 N.C. 382, 271 S.E.2d 273, 276 (1980) ............................. 10,13

State v. Mack
     87 N.C.App. 24, 359 S.E.2d 485 (N.C.App. 1987),
     disc. review denied, 321 N.C. 477,
     364 S.E.2d 663 (1988) ........................................................................22,28

State v. Mason
     35 N.C. 341 (1852) ................................................................................... 18

State v. Mitchell
     353 N.C. 309, 543 S.E. 2d. 830 (2001) ................................... 12,13

State v. Reid
     334 N.C. 551, 434 S.E.2d 193 (1993) .............................................. 13

State v. Shores
     155 N.C.App. 342,
     573 S.E.2d 237 (N.C.                     App.     2002) ................................ 10,14,15,16

State v. Stephens
     244 N.C. 380, 93 S.E.2d 431 (1956)................................................... 8

State v. Strohauer
     84 N.C.App. 68, 351 S.E.2d 823 (N.C.App.                                  1987) ..................... 21

State v. Truesdale
     123 N.C.App. 639, 473 S.E.2d 670 (N.C.App.                                   1996) ................ 24

State v. Ward
     354 N.C. 231, 555 S.E.2d 251 (2001) ....................................... 10,12

State v. Watson
     272 N.C. 526, 158 S.E.2d 334 (1968) ....................................... 18,19

State v. Williams
     67 N.C.App. 295, 313 S.E.2d 170 (1984) ........................................ 10

State v. Williams
     92 N.C.App. 752, 376 S.E.2d 21 (N.C.App. 1989),
     disc. review denied, 324 N.C. 251,
     377 S.E.2d 762 (1989) ......................................................................... 22,29
                                         iv


United States Constitution

U.S. Const. Amend. V ......................................................................................... 16

North Carolina General Statutes

N.C. GEN. STAT. Sec. 7A-27(b) .......................................................................... 3

N.C. GEN.STAT. Sec. 8-54 ................................................................................... 13

N.C. GEN. STAT. Sec. 14-7.6 ............................................................................ 24

N.C. GEN. STAT. Sec. 14-56.1 .......................................................................... 21

N.C. GEN. STAT. Sec. 14-89.1 .......................................................................... 21

N.C. GEN. STAT. Sec. 15A-1340(b).................................................................. 25

N.C. GEN. STAT. Sec. 15A-1340(d).................................................................. 24

N.C. GEN. STAT. Sec. 15A-1340.13(b) ........................................................... 27

N.C. GEN. Stat. Section 15A-1340.14 .....................................................26,27

N.C. GEN. STAT. Sec. 15A-1340.14(b)(6) ...............................................20,31

N.C. GEN. STAT. Sec. 15A-1340.17.................................................................. 32

N.C. GEN. STAT. Sec. 15A-1446(d)(5) ........................................................... 29

N.C. GEN. STAT. Sec. 15A-1442 .......................................................................... 3

Other Authority

N.C. Rule App. 10(b)(1) ...............................................................................21,28
                                    



NO. COA08-753                                      ELEVENTH-A DISTRICT

                   NORTH CAROLINA COURT OF APPEALS
                *************************************

STATE OF NORTH CAROLINA         )
                                )        From Harnett County
v.                              )           06 CRS 57619
                                )           07 CRS 6932
JAMES HOWARD ROWLAND            )
                                )
                Defendant       )

      ****************************************************

                     DEFENDANT-APPELLANT'S BRIEF


      ****************************************************
                       QUESTIONS PRESENTED

     I.   WHETHER THE TRIAL COURT COMMITTED ERROR IN ALLOWING THE
PROSECUTOR TO PRESENT EVIDENCE THAT THE DEFENDANT DID NOT WAIVE HIS
MIRANDA RIGHTS?

     II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING THE DEFENDANT‘S MOTION TO DISMISS THE CHARGE OF
SAFECRACKING AS THERE WAS INSUFFICIENT EVIDENCE TO SUBMIT THE
CHARGE TO THE JURY?

     III. WHETHER THE TRIAL COURT ERRED BY FINDING THAT THE
DEFENDANT HAD SEVENTEEN POINTS AND THAT HE WAS PRIOR RECORD LEVEL V
FOR FELONY SENTENCING PURPOSES WHERE THE DEFENDANT HAD NOT
PREVIOUSLY BEEN CONVICTED OF SAFECRACKING OR ANY OFFENSE THAT
INCLUDED ALL THE ELEMENTS OF SAFECRACKING?

     IV. WHETHER THE TRIAL COURT ERRED BY SENTENCING THE DEFENDANT
AS A RECORD LEVEL V OFFENDER WHEN HE SHOULD HAVE BEEN SENTENCED AS
A PRIOR RECORD LEVEL IV OFFENDER SINCE HE ONLY HAD FOURTEEN PRIOR
RECORD POINTS BASED UPON THE WORKSHEET WITH ALL OF THE DEFENDANT‘S
PRIOR CONVICTIONS LISTED?

     V.    WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO COUNSEL
WHEN HIS COUNSEL FAILED TO OBJECT TO THE STATE‘S CONTENTION AND THE
COURT‘S FINDING THAT THE DEFENDANT WAS A PRIOR RECORD LEVEL V?
                       STATEMENT OF THE CASE
                                    2
      The defendant, James Howard Rowland, was convicted of one (1)

count   of   Felonious   Breaking   and   Entering,    one   (1)   count   of

Felonious Larceny, one (1) count of Felonious Possession of Stolen

Goods, one (1) count of Safecracking, and the status being an

Habitual Felon by jury at the April 7, 2008 Criminal Session of the

Superior Court of Harnett County, the Honorable Ola M. Lewis

presiding.    The trial court arrested judgment on the Possession of

Stolen Goods conviction and entered a judgment and commitment on

the   remaining   convictions   sentencing    the     defendant    to   three

consecutive terms of imprisonment of a minimum of one hundred and

fifty-one months and a maximum of one hundred and ninety-four

months with the North Carolina Department of Corrections.               This

judgment and commitment was rendered on the 9th day of April, 2008.

 The defendant gave oral notice of appeal to the North Carolina

Court of Appeals after the entry of judgment on April 9, 2008, the

transcript was ordered to be prepared by the Court Reporter on

April 9, 2008, and the transcript was delivered to the parties on

April 23, 2008.

      The record was filed on June 26, 2008 and docketed on June 30,

2008 in the North Carolina Court of Appeals.




             STATEMENT OF GROUNDS FOR APPELLATE REVIEW
                PURSUANT TO APPELLATE RULE 28(b)(4)
      This Court has jurisdiction over this appeal by virtue of

N.C.G.S. §7A-27(b) and N.C.G.S. §15A-1442.      A timely oral notice of
                             3
appeal was given in open court pursuant to Rule 4(a)(1) of the

North Carolina Rules of Appellate Procedure following the Court‘s

judgment on April 9, 2008.          (Tp.      320, line 21 through Tp. 321,

line 3).    This appeal is from a final order.

                        STATEMENT OF THE FACTS

       Steve Freeman with the Lillington Police Department testified

that he was on foot patrol on the evening of December 23, 2006.

(Tp.     121, 122, 123).      At approximately 1:30 a.m., the officer

while on patrol noticed a female standing of the corner of                 8th

Street and James Street.       (Tp.    124).    When he saw her,   the female

ran away from him toward a local business, Carter‘s Economy

Cleaners.     (Tp.    124-125).        Officer Freeman then went to the

cleaners and saw the female walk behind the business.              (Tp.   124-

125).

       Officer Freeman began looking for the female however, he was

not able to find her.        (Tp.     125).    As he came up to the side of

the cleaning business, he heard a hitting noise like ―something was

hitting metal‖.      (Tp.    125-126).     Freeman then called for back-up

because he believed that someone was inside of the business.              (Tp.

 126).

       While he waited for his backup to arrive, he called dispatch

in an attempt to get the owner of the business to come to his

location.    (Tp.    126).    Officer Latuli with the Lillington Police
                              4
Department arrived at the cleaners as Freeman‘s backup.              (Tp.   155,

157).

       Freeman stated that he went to the back side of the business

and continued to hear the hitting noise for twenty to thirty

minutes.   (Tp.     127).    Five to ten minutes after the noise stopped,

somebody attempted to open the window from inside the cleaning

business and Freeman and Latuli saw someone attempt to exit the

window.    (Tp.    127, 159).       Officer Freeman then ordered that person

to stop and show him his hands however, the person went back into

the business.      (Tp.     128, 159).

       At this time, Officer Latuli kicked in the door of the

business and Officer Freeman released his K-9 into the business.

(Tp.    128).     The K-9 then apprehended the defendant who was under

the desk in the business.           (Tp.   128).

       Officer Freeman then ordered Mr. Rowland to show his hands

however, he refused.         (Tp.      129).    Since the defendant did not

listen to the officer‘s instructions, Freeman and Latuli then

administered pepper spray on Rowland and then they were able to

place the defendant in handcuffs.              (Tp.   130, 160).    Mr. Rowland

was removed from the business by the officers.               (Tp.   130).

       Officer Freeman searched the defendant and found change and

two-dollar bills in his pockets.           (Tp.    131).   Inside the business,

Freeman testified that he saw a safe on the middle of the floor

with its back open and noticed bags of money laying on a desk.
                              5
(Tp.    131, 132).     The officer reported that he also recovered a

pick axe laying on the floor near the safe.                 (Tp.     131).   Based

upon the close proximity of the pick axe to the safe and the marks

left on the safe, Freeman opined that pick axe caused the damage to

the safe.     (Tp.    132).

       Gary Carter testified that he is the owner of Carter‘s Economy

Cleaners and that he went to the cleaners after receiving a call

from the sheriff‘s department.         (Tp.     182-183).       When he arrived at

the cleaners, he saw the defendant being escorted out of his

business by two officers.           (Tp.   185).       Carter testified that he

did not know Mr. Rowland and that Rowland did not have permission

to enter his business.        (Tp.    186).

       Mr. Carter stated that he was allowed to go into the business

after this incident and that his office was in ―shambles‖.                     (Tp.

187).    He testified that he kept his cash register startup money,

change from the laundromat, bonds, two dollar bills and silver

coins in his safe at the business.            (Tp.      187).    He reported that

his safe was made out of concrete and steel however, it was

destroyed    with    pieces    of    concrete    splattered       throughout    his

business.    (Tp.    187).    Everything was removed from his safe and he

noticed that the change that was in his safe was bagged up and

placed at the window of his office.             (Tp.    187-188).    Carter noted

that he saw a pick axe in his business but, the axe did not belong

to him.     (Tp.    190).
                               6
     Detective Brewington testified that he spoke to the defendant

after Freeman placed Mr. Rowland in custody.               (Tp.   176-177).   The

Detective testified that he read Mr. Rowland his Miranda Rights for

the purposes of interviewing him.               (Tp.   178).   He then asked the

defendant if he understood those rights and whether he wished to

waive them.      (Tp.     178).      However, Brewington testified that Mr.

Rowland informed him that he did not want to waive his Miranda

Rights.   (Tp.    178).       He then processed the defendant and took him

to the magistrate.          (Tp.     178).     Mr. Rowland was arrested on the

charges of Breaking and Entering and Larceny After Breaking and

Entering.     (Rp.      2).   The defendant was subsequently indicted on

one (1) count of Felonious Breaking and Entering, one (1) count of

Felonious Larceny, one (1) count of Felonious Possession of Stolen

Goods, one (1) count of Safecracking, and the status being an

Habitual Felon.      (Rp.      7, 11).

      After the jury‘s deliberations, Mr. Rowland was convicted on

all of the charges including his status as an Habitual Felon.                 (Rp.

34-38).     During the defendant‘s sentencing hearing, the State

presented a worksheet which contained the defendant‘s criminal

record showing the defendant as having obtained seventeen prior

record points.       (Rp.     40-43).        Counsel for the defendant did not

object to the sentencing worksheet which held that the defendant

was prior record five for sentencing.              (Tp.   315).   The trial court

arrested judgment on the Possession of Stolen Goods conviction and
                          7
entered a judgment and commitment on the remaining convictions

sentencing the defendant to three consecutive presumptive terms of

imprisonment for prior record level five with a minimum of one

hundred and fifty-one months and a maximum of one hundred and

ninety-four   months    with     the    North   Carolina      Department    of

Corrections for each conviction.

     All   other   pertinent    facts   will    be   stated   below   in   the

defendant's arguments.




                     STANDARD FOR APPELLATE REVIEW

                                ARGUMENT #1:

     This Court uses a de novo standard of review when determining

whether a defendant‘s Constitutional right to remain silent has

been violated.     State v. Hoyle, 325 N.C. 232, 235, 382 S.E.2d 752,

753 (1989).
                           8
                                 ARGUMENT #2:

     The   issue   of   whether    the    evidence   presented   constitutes

substantial evidence is a question of law and therefore, the

standard of review is de novo.            State v. Earnhardt, 307 N.C. 62,

66, 296 S.E.2d 649, 652 (1982)(citing State v. Stephens, 244 N.C.

380, 384, 93 S.E.2d 431, 433 (1956).

                           ARGUMENT #3 & #4:

     An issue involving the State‘s failure to produce sufficient

evidence to prove the existence of a defendant‘s prior record level

is reviewable de novo and automatically reversible even though no

objection, exception, or motion has been made at the trial level.

State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991); State v.

Jeffrey, 167 N.C.App. 575, 605 S.E.2d 672 (N.C.App.              2004).




                                 ARGUMENT #5:

     When determining whether a criminal defendant was denied the

effective assistance of counsel at sentencing, the appellate court

reviews this issue de novo.         State v. Davidson, 77 N.C.App. 540,

335 S.E.2d 518 (N.C.App.         1985).
                       9




                             ARGUMENT

     I.   THE TRIAL COURT COMMITTED ERROR IN ALLOWING THE
          PROSECUTOR TO PRESENT EVIDENCE THAT THE DEFENDANT DID NOT
          WAIVE HIS MIRANDA RIGHTS.
     Assignment of Error, No. 13; Tp. 178, line 2 through Tp. 178,
line 12.

     ―It is well established that a criminal defendant has a right

to remain silent under the Fifth Amendment to the United States

Constitution, as incorporated by the Fourteenth Amendment, and

under Article I, Section 23 of the North Carolina Constitution.‖

State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001).

          The United States Supreme Court held in Doyle
          v. Ohio, 426 U.S. 601, 96 S.Ct. 2240, 49
          L.Ed.2d 91 (1976), that it is fundamentally
          unfair and a deprivation of a defendant’s due
                          10

         process rights under the Fourteenth Amendment
         to impeach the defendant on cross-examination
         by questioning him about his silence. Id. at
         618, 96 S.Ct. at 2245, 49 L.Ed.2d at 98;
         accord State v. Hoyle, 325 N.C. 232, 236, 382
         S.E.2d 752, 754 (1989); State v. Williams, 67
         N.C.App. 295, 298-299, 313 S.E.2d 170, 172
         (1984).
State v. Shores, 155 N.C.App. 342, 349, 573 S.E.2d 237, 241

(N.C.App.    2002).(emphasis added).

       A citizen‘s right to remain silent and not to have his silence

used against him is independent of the right to be warned of the

right to remain silent under Miranda v. Arizona, 384 U.S. 436, 16

L.Ed.2d 694 (1966); State v. Lane, 301 N.C. 382, 271 S.E.2d 273,

276 (1980).

       At trial, Detective Brewington testified that he spoke to the

defendant after Officer Freeman placed Mr. Rowland in custody.

(Tp.    176-177).   This Detective testified that he read Mr. Rowland

his Miranda Rights for the purposes of interviewing him.          (Tp.

178).    He then asked the defendant if he understood those rights

and whether he wished to waive them.          (Tp.    178).   However,

Brewington testified that defendant informed him that he did not

want to waive his Miranda Rights.      (Tp.   178).

            Q.   After you received information from the
            defendant, what did you do?
            A. I proceeded to read him his Miranda rights
            in order to further interview him.
            Q. And after you provided the Miranda rights,
            what did you do next?
            A. I asked him if he understood those rights
            and if he wanted to waive those rights, which
            he did not.
            MS. BELL: Objection.
                       11
          THE COURT: That‘s okay, he has the right not
          waive. Overruled. Go ahead.

(Tp. 178). This improper examination that the defendant    choose to
not make a statement to law enforcement after being        read his
Miranda rights impermissibly violated the defendant‘s      right to
remain silent and therefore, the defendant is entitled     to a new
trial.

     Analysis of impropriety in this context naturally focuses on

the interpretation which the jury would reasonably place on the

challenged words:

          A statement that may be interpreted as
          commenting on a defendant's decision not to
          testify is improper if the jury would
          naturally and necessarily understand the
          statement to be a comment on the failure of
          the accused to testify.

State v. Mitchell, 353 N.C. 309, 326, 543 S.E. 2d. 830 (2001).   The

prosecutor presented evidence that the defendant declined to make a

statement after being asked by Detective Brewington to answer

questions about the case.     The gist of this examination was that,

if the defendant had nothing to hide, he would have made a

statement, would have waived his Miranda rights and that he did not

make a statement because a truthful statement would have been

incriminating.   This is the very sort of evidence that our court

have found to be fundamentally unfair, requiring a new trial.

     The testimony here was particularly prejudicial because it

amounted to an implicit commentary on defendant's exercise of his

right to remain silent.     It is well-settled, of course, that the

prosecution may not comment adversely when a criminal defendant
                           12
chooses to exercise his rights under the Fifth Amendment.                  As the

Supreme Court stated in State v. Ward, 354 N.C. 231, 250, 555

S.E.2d 251 (2001):

         In our legal system, it is axiomatic that a

         criminal defendant is entitled under the Fifth

         Amendment to the United States Constitution,

         as incorporated by the Fourteenth Amendment,

         to remain silent and to refuse to testify.

         Griffin     v.    California,        380     U.S.    609,    14

         L.Ed.2d     106    (1965).          This   right     is    also

         guaranteed under Article I, Section 23 of the

         North Carolina Constitution. State v. Reid,

         334 N.C. 551, 554, 434 S.E.2d 193, 196 (1993).

          It   is    equally      well      settled    that    when   a

         defendant exercises his right to silence, it

         "shall     not    create     any    presumption       against

         him,"      N.C.G.S.      §   8-54    (1999)§§,       and    any

         comment by counsel on a defendant's failure to

         testify is improper and is violative of his

         Fifth Amendment right, Mitchell, 353 N.C. at

         326, 543 S.E.2d at 840.

    In State v. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989), the

defendant was charged with murder.                  He made a brief initial

statement to the police about the circumstances of the decedent‘s
                                       13
death, but did not answer questions.           At trial, he testified that

he was attacked by the decedent, raising for the first time self-

defense.    The prosecutor then questioned him about whether he had

ever told anyone prior to trial that he had been attacked by the

decedent.     Our    Supreme   Court    held    that   this   violated   the

defendant‘s right not to have his silence used against him.

     In State v. Lane, supra, the defendant was on trial for

selling heroin.     He made a general denial to the police.       On cross-

examination the prosecutor asked the defendant if he had ever told

the police or the district attorney‘s office that he had an alibi

defense.    Again the Supreme Court found reversible error in the

cross-examination.

     In State v. Shores, supra, this Court considered a similar

line of cross-examination.     The defendant was on trial for murder.

He had made a brief statement to the police, to the effect that he

had killed in self-defense.       At trial, he gave a more complete

exculpatory version of the events.             On cross-examination, the

prosecutor impeached the defendant on the grounds that he had not

given this version of the events to the police or the District

Attorney‘s Office:

            Q. Mr. Shore —–- Shores, this story you‘ve
            told the ladies and gentlemen of the jury
            today, have you told anybody else this story?
            A. No, sir. My attorney is all.
            Q. Sir?
            A. My lawyer.
            Q. Your lawyer, Anybody else?
            A. No.
                       14
          Q.   You haven‘t told the DA‘s office, have
          you?
          A. No, sir.
          Q.   Haven‘t told the investigating officer,
          Johnny Belton, have you?
          A. No.
          Q. Haven‘t told any other officers, have you?
          A. No sir.
          Q.     Haven‘t went over to the Sheriff‘s
          Department and told them that story, have you?
          [OBJECTION SUSTAINED]
          Q.    Did you tell anybody other than your
          lawyer?
          [OBJECTION OVERRULED]
          A. No, sir.
          ...
          Q. Mr. Shore[sic], you didn‘t call up Officer
          Cook and say, listen, I want to add some more
          to that statement, did you?
          A. No, sir.
          Q. You didn‘t call him up and say, listen, I
          want to tell you about he said he had a gun,
          he was going to go get it and kill me. You
          didn‘t call him up and tell him that, did you?
          A. No, sir.
          Q. You didn‘t call him up and say, listen, I
          want to tell you about how he was kicking me
          also.
          A. No, I didn‘t. I didn‘t know I could do
          that.
          Q.   Between August 8th, 1999 and today you
          didn‘t know that you could call up the officer
          and tell him your story?
          [OBJECTION OVERRULED]
          A. No, I didn‘t know.

Shores, 155 N.C.App. at 347, 573 S.E.2d at 240.

     In this case, the State presented evidence that the defendant

did not make a statement to the police since he decided to exercise

his right to remain silent.   (Tp.   178).   Under our Constitution, a

citizen needs no other reason to remain silent.     As in Hoyle, Lane

and Shores, the prosecutor here punished the defendant for having
                              15
remained silent and used his silence against him for not having

given the police the information they requested.                   As in those

cases, this examination was improper.

     The prosecutor‘s examination of Detective Brewington which

elicited evidence that the defendant choose to not give a statement

to law enforcement attacked defendant‘s exercise of his right

against self-incrimination in such a manner as to leave a strong

inference with the jury that he was guilty.             This examination was

particularly prejudicial since the defendant did not take the stand

during his trial.       Even though the defendant exercised his right to

not be compelled to be a witness against himself at his trial, the

State   nonetheless     was    able   to   circumvent   this   constitutional

protection by presenting evidence that the defendant choose to not

waive his Miranda rights and that he did not give a statement to

law enforcement at the time of his arrest.           See U.S. Const. Amend.

V.      The   State‘s    questions     contributed      to   the   defendant‘s

convictions.    This Court cannot declare beyond a reasonable doubt

that there was no reasonable possibility that the prosecutor‘s

contributed to defendant‘s conviction and therefore, the defendant

was sufficiently prejudiced to warrant a new trial.                See Shores,

155 N.C.App. at 352, 573 S.E.2d at 241-242.
                              16
       II.THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE
          DEFENDANT‘S MOTION TO DISMISS THE CHARGE OF SAFECRACKING
          AS THERE WAS INSUFFICIENT EVIDENCE TO SUBMIT THE CHARGE
          TO THE JURY.
     Assignment of Error, No. 3; Tp. 196, line 6 through Tp. 199,
line 16.

       The defendant contends that there was insufficient evidence

presented at trial, as a matter of law, from which the jury

properly could find the defendant guilty beyond a reasonable doubt

on the charge of safecracking.         The defendant moved to dismiss this

charge at the close of all of the evidence.           (Tp. 196-199).    The

trial court ruled that there was sufficient evidence presented to

the jury during the trial and this motion was denied by the trial

court.       (Tp. 196-199).

       The defendant‘s motion to dismiss made at the conclusion of

the State‘s evidence and at the conclusion of all of the evidence

should have been granted.              The indictment alleging that the

defendant committed the offense of safecracking alleged:

              And the jurors for the State upon their oath
              present that on or about the date of offense
              shown and in the county named above, the
              defendant named above unlawfully, willfully
              and feloniously did attempt to enter a safe
              which was the property of Carter’s Economy
              Cleaners, Inc., a corporation, located at 22
              W. James Street, Lillington, North Carolina by
              means of the use of tools.

(Rp.     7)(emphasis added).         However, the State‘s evidence showed

that the safe forced open on the occasion in question was not owned

by Carter‘s Economy Cleaner‘s, Inc, but was actually owned by Gary

Franklin Carter and Maggie Carter individually. (Tp.          190).    This
                           17
was a fatal variance between the offense charged in the indictment

and the proof presented at trial.

       The   State   in   its   indictment   alleged   that   Mr.   Rowland

―unlawfully, willfully and feloniously did attempt to enter a safe

which was the property of Carter‘s Economy Cleaners, Inc, a

corporation, located at 22 W. James Street, Lillington, North

Carolina by means of the use of tools.‖           However, at trial, the

State presented evidence that          Gary Franklin Carter and Maggie

Carter actually owned the safe.

             Q.   Mr. Carter, the safe that‘s          in   your
             business, who owns that safe?
             A. We do. My wife and I.

(Rp.    190).   The State‘s own witness testified that the safe was

not in fact owned by Carter‘s Economy Cleaners, but was owned by

the Carters themselves.

       In a safecracking prosecution, allegations of ownership of the

safe in a person or entity is essential.       State v. Watson, 272 N.C.

526, 527, 158 S.E.2d 334, 335           (1968).    ―‗In indictments for

injuries to property it is necessary to lay the property truly, and

a variance in that respect is fatal.‘‖ (Id., quoting State v.

Mason, 35 N.C. 341).      If the proof shows that the safe was not the

property of the person or entity alleged in the indictment to be

the owner of it, the variance is fatal and motion for judgment of

nonsuit should be allowed.‖         State v. Watson, 272 N.C. 526, 527,

158 S.E.2d 334, 335       (1968).    Therefore, Mr. Rowland‘s motion to
                         18
dismiss should have been granted because Carter‘s Economy Cleaner‘s

Inc., which was alleged in the indictment to be the owner of the

safe was not proven to be the owner of the safe and because Gary

Franklin Carter and Maggie Carter individually are the actual

owners of the safe alleged to have been entered.

     III. THE TRIAL COURT ERRED BY FINDING THAT THE DEFENDANT HAD
          SEVENTEEN POINTS AND THAT HE WAS PRIOR RECORD LEVEL V FOR
          FELONY SENTENCING PURPOSES WHERE THE DEFENDANT HAD NOT
          PREVIOUSLY BEEN CONVICTED OF SAFECRACKING OR ANY OFFENSE
          THAT INCLUDED ALL THE ELEMENTS OF SAFECRACKING.
     Assignment of Error, No. 6; Rp. 40 through Rp. 43; Tp. 315,
line 1 through Tp. 315, line 25.
     Assignment of Error, No. 7; Rp. 40 through Rp. 43; Tp. 315,
line 1 through Tp. 315, line 25.

      The trial court erred by assigning one point to Mr. Rowland

based on the finding that all the elements of the present offense,

safecracking, were included in a prior offense that the defendant

had been previously convicted.        (Rp. 40-42, 49-50).     Mr. Rowland

had not been convicted of any offenses that required the State to

prove that he had entered or attempted to enter a safe or vault

with a tool or other implementation.         For this reason, the trial

court erred by finding that Mr. Rowalnd had one prior record point

pursuant to Section 15A-1340.14(b)(6).

      North Carolina General Statutes Section 15A-1340.14(b)(6)

provides that a defendant shall be assigned one point if ―all the

elements of the present offense are included in any prior offense

for   which   the   offender    was   convicted.‖      N.C.G.S.   §   15A-

1340.14(b)(6).      To   be     assigned   points   under   Section   15A-
                          19
1340.14(b)(6), the trial court must find more than the ―mere

existence of a prior offense.‖      State v. Bethea, 122 N.C. App. 623,

627, 471 S.E.2d 430, 432 (1996).      The trial court must compare the

present offense with the prior offense and determine that all the

elements of the present offense are included in a prior offense.

Bethea, 122 N.C. App. at 627, 471 S.E.2d at 432-33; N.C.G.S. § 15A-

1340.14(b)(6).

     Neither     the   sentencing   worksheet   nor     the   prosecutor‘s

assertions   during    sentencing   indicate    that    Mr.   Rowland   had

previously been convicted of safecracking.             (Rp.    41-42, Tp.

315).   The prior record level worksheet does indicates that Mr.

Rowland had been convicted on numerous occasions of Possession With

Intent To Sell And Distribute Cocaine, Maintaining A Place For

Drugs, Possession of Drug Paraphernalia, Breaking And Entering Into

A Coin Machine, Felony Larceny, Felony Breaking And Entering and

Operating A Vehicle With No Insurance.          (Rp. 41-42).      However,

entering or attempting to enter a safe or vault with a tool or

other implementation is not an element of any of these crimes.

     A person is guilty of safecracking if he unlawfully opens,

enters or attempts to open or enter a safe or vault by the use of

explosives, drills, or tools...        N.C. GEN. STAT. Sec. 14-89.1;

State v. Strohauer, 84 N.C.App. 68, 71, 351 S.E.2d 823, 826

(N.C.App.    1987).     The only prior conviction of the defendant

which could come close to safecracking offense is Breaking into a
                         20
Coin or Currency-Operated Machine.     However, a ―‗coin- or currency

operated machine‘ shall mean any coin- or currency operated vending

machine, pay telephone, telephone coin or currency receptacle, or

other coin- or currency-activated machine or device.‖             N.C. GEN.

STAT. Sec. 14-56.1.      This definition does not include safes or

vaults.     In addition, G.S. 14-56.1 does not require the use of a

tool or other implementation in order to obtain a conviction for

Breaking into a Coin or Currency-Operated Machine.                    In this

instance, the defendant‘s prior criminal record does not support a

finding that Mr. Rowland had previously been convicted ofthe crime

of   safecracking or a crime with the same elements as safecracking.

      Mr. Rowland anticipates that the State may attempt to rely on

Appellate    Procedure   Rule   10(b)(1),   to   argue   that    he    waived

appellate review of the trial court‘s findings in sentencing, as he

did not object.    This contention is erroneous in law.         ―Our Supreme

Court has held that an error at sentencing is not considered an

error at trial for the purpose of N.C. Rule 10(b)(1) of the North

Carolina Rules of Appellate Procedure‖ and therefore no objection

is required to preserve the issue for appellate review.            State v.

Hargett, 157 N.C.App. 90, 92, 577 S.E.2d 703, 705 (N.C.App.

2003)(citing State v. Canady, 330 N.C. 398, 401-402, 410 S.E.2d

875, 878 (1991).    See also, State v. Mack, 87 N.C.App. 24, 33, 359

S.E.2d 485, 491 (N.C.App.       1987), disc. review denied, 321 N.C.

477, 364 S.E.2d 663 (1988)(holding that the ―defendant was not
                         21
required to object at the sentencing hearing in order to assert the

insufficiency of the [State‘s] remarks as a matter of law to prove

his prior convictions by a preponderance of the evidence.‖).

     The State may also argue that Rowland has waived this issue by

failing to argue plain error.             The plain error rule is not

applicable to appellate review of sentencing findings.           Sentencing

findings like those at issue here are reviewable under law without

qualification.     See Canady, 330 N.C. at 402, 411, 410 S.E.2d at

878, 883 (Six Justices indicate appellate review of sentencing

findings    is   expressly   authorized     by   section   15A-1446(d)(5)

notwithstanding absence of contemporaneous objection);            State v.

Williams, 92 N.C.App. 752, 753, 376 S.E.2d 21, 22 (N.C.App. 1989),

disc. review denied, 324 N.C. 251, 377 S.E.2d 762.          See N.C. GEN.

STAT. Sec. 15A-1446(d)(5).

     The trial court erred by assigning Mr. Rowland one point on

the basis that all the elements of the present offense were

included in a prior offense and by finding that Mr. Rowland had

seventeen   sentencing   points     for    felony   sentencing   purposes.

Counsel for appellant is aware that even if this Court agrees this

argument, the defendant would still have sixteen record points for

a prior record level V.         However, as argued in Issue #4 below,

appellant contends that the calculation for his prior record points

is incorrect and the defendant should be sentenced as a prior
                          22
record level IV.   Therefore, the case should be remanded to the

trial court for a new sentencing hearing.

     IV.  THE TRIAL COURT ERRED BY SENTENCING THE DEFENDANT AS A
          RECORD LEVEL V OFFENDER WHEN HE SHOULD HAVE BEEN
          SENTENCED AS A PRIOR RECORD LEVEL IV OFFENDER SINCE HE
          ONLY HAD FOURTEEN PRIOR RECORD POINTS BASED UPON THE
          WORKSHEET WITH ALL OF THE DEFENDANT‘S PRIOR CONVICTIONS
          LISTED.
     Assignment of Error, No. 6; Rp. 40 through Rp. 43; Tp. 315,
line 1 through Tp. 315, line 25.
     Assignment of Error, No. 7; Rp. 40 through Rp. 43; Tp. 315,

line 1 through Tp. 315, line 25.

     A.    Introduction

     In this argument, the appellant does not contest the validity

of the sixty-two convictions listed on prior conviction worksheet

which the State submitted to the Court in order to determine Mr.

Rowland‘s prior record level.       See Rp. 40-42.    The appellant

however argues that the trial court erred in finding that these

convictions, based upon rules of structured sentencing, equaled

sixteen record points and that the defendant was a prior record

level V for sentencing purposes in regards to the safecracking

conviction.   See Rp. 40.    The defendant contends that an accurate

calculation would show that Mr. Rowland is a prior Record Level IV,

with fourteen record points1.




     1
      The defendant only contests his record level for his
safecracking conviction. As argued in Issue #3, he should not
have been assessed one record point pursuant to N.C.G.S. Section
15A-1340.14(b)(6).
                                           23
       The trial court erred in sentencing Mr. Rowland as a prior

record      level    V   because    the    State   failed   to    prove   that   the

convictions on the worksheet equaled sixteen prior record points.

This issue is factually complex because the State alleged that Mr.

Rowland had sixty-two prior convictions and sixteen prior record

points.       (Rp.       40).     The State employed some of those prior

convictions in the habitual felon case and some when calculating

the prior record level at sentencing.              (Rp.    11, 41-42).    Moreover,

many of the convictions were obtained in one day, so that only one

conviction could be used for calculating the prior record level and

another could be used to support the habitual felon indictment.

       In    calculating         the      defendant‘s     prior    record,   after

eliminating those felonies used in the habitual felon indictment

See N.C. GEN. STAT. Sec. 14-7.6), by calculating points for only

one conviction when there are multiple convictions on the same date

(See   N.C.    GEN.      STAT.     Sec.    15A-1340(d)),    by    allowing   for   a

conviction to be used for habitual felon purposes and allowing

another conviction which occurred on the same day to be used for

prior record points (See State v. Truesdale, 123 N.C.App. 639, 473

S.E.2d 670 (N.C.App.            1996), and by counting all the other offenses

which are eligible for points under structured sentencing (Class 1

misdemeanor or higher, See N.C. GEN. STAT. Sec. 15A-1340(b)), the

Defendant only has fourteen prior record level points.
                        24
      As this Court can see on the sentencing worksheet, the

defendant has a criminal history as summarized as follows:

      a)    Two Class H Felonies on August 20, 1993, with one felony,

93   CRS   43524,   being   used   for   Habitual   Felon   purposes.   The

defendant should be assessed two points for these convictions.

      b)    One Class 1 Misdemeanor on May 1, 1995.           The defendant

should be assessed one point for this conviction.

      c)    One Class 1 Misdemeanor on September 21, 1995.              The

defendant should be assessed one point for this conviction.

      d)     One Class I Felony and Forty-Four Class H Felonies on

July 2, 1998, with one felony, 97 CRS 7289, being used for Habitual

Felon purposes.      The defendant should be assessed two points for

these convictions.

      e)    One Class I Felony and Three Class H Felonies on December

15, 1998.    The defendant should be assessed two points for these

convictions.

      f)    One Class I Felony and Two Class H Felonies on September

7, 2004, with one felony, 04 CRS 1401, being used for Habitual

Felon purposes.      The defendant should be assessed two points for

these convictions.

      g)    Two Class H Felonies on February 11, 2002.        The defendant

should be assessed two points for these convictions2.


      2
      Please note that the worksheet grouped the defendant‘s
convictions based on date. However, the February 11, 2002
convictions were separated on the worksheet. This may have led
                         25
     h)    Three Class 1 Misdemeanors on July 27, 1995.                     The

defendant should be assessed one point for these convictions.

     i)    One Class 1 Misdemeanor on May 12, 1998.           The defendant

should be assessed one point for this conviction.

     Based upon the State‘s worksheet, the defendant had fourteen

record points and the State miscounted the number of record points

Mr. Rowland should have received.

     B.    The State did not prove Mr. Rowland‘s prior record level
           by a preponderance of the evidence.

     N.C. GEN. Stat. Section 15A-1340.14 requires that each of a

felony offender‘s prior convictions be proven to determine the

offender‘s prior record points and level.               The statute also

provides   that    the   State   bears   the   burden   of   proving    prior

convictions by a preponderance of the evidence.          State v. Bartley,

156 N.C.App. 490, 501, 577 S.E.2d 319, 326 (N.C.App.                   2003).

However, even if this Court accepts by the preponderance of the

evidence   all    of   Mr.   Rowland‘s   convictions    as   stated    on   the

sentencing worksheet, the State failed to prove that a Prior Record

Level V sentence was appropriate since the defendant in fact had

only fourteen prior record points which would place him at a Prior

Record Level IV for sentencing.

     C.    The Trial Court erred by not properly determining the
           Defendant‘s Prior Record Level.


to the miscalculation of the defendant‘s prior record level.
(Rp. 42).
                        26
     North Carolina General Statutes Section 15A-1340.13(b) states

that:

            ―[b]efore imposing a sentence, the court shall
            determine the prior record level for the
            offender pursuant to G.S. 15A-1340.14.     The
            sentence shall contain a sentence disposition
            specified for the class of offense and prior
            record level, and its minimum term of
            imprisonment shall be within the range
            specified for the class of the offense and
            prior record level...

N.C. GEN. STAT. Sec. 15A-1340.13(b).        By statute, it was the trial

court‘s responsibility to properly determine the defendant‘s prior

record level pursuant to G.S. 15A-1340.14.              As stated above, the

worksheet calculations that determined Mr. Rowland‘s prior record

points and record level as calculated by the State of North

Carolina    were   incorrect    however,    it    was    the    trial       court‘s

responsibility pursuant to statute to ensure that the defendant‘s

prior record points and level were correct.         Since the Court failed

to correctly determine Mr. Rowland‘s prior record points and level,

the defendant received a greater punishment than what he was

eligible for by statute and therefore, this case should be reversed

and remanded for resentencing.

     D.     This issue is properly preserved for appellate review.

     Mr. Rowland anticipates that the State may attempt to rely on

Appellate   Procedure    Rule   10(b)(1),    to    argue       that    he    waived

appellate review of the trial court‘s findings in sentencing, as he

did not object.    This contention is erroneous in law.               ―Our Supreme
                       27
Court has held that an error at sentencing is not considered an

error at trial for the purpose of N.C. Rule 10(b)(1) of the North

Carolina Rules of Appellate Procedure‖ and therefore no objection

is required to preserve the issue for appellate review.         State v.

Hargett, 157 N.C.App. 90,        92, 577 S.E.2d 703, 705 (N.C.App.

2003)(citing State v. Canady, 330 N.C. 398, 401-402, 410 S.E.2d

875, 878 (1991).    See also, State v. Mack, 87 N.C.App. 24, 33, 359

S.E.2d 485, 491 (N.C.App.       1987), disc. review denied, 321 N.C.

477, 364 S.E.2d 663 (1988)(holding that the ―defendant was not

required to object at the sentencing hearing in order to assert the

insufficiency of the [State‘s] remarks as a matter of law to prove

his prior convictions by a preponderance of the evidence.‖).

     The State may also argue that Rowland has waived this issue by

failing to argue plain error.          The plain error rule is not

applicable to appellate review of sentencing findings.        Sentencing

findings like those at issue here are reviewable under law without

qualification.     See Canady, 330 N.C. at 402, 411, 410 S.E.2d at

878, 883 (Six Justices indicate appellate review of sentencing

findings   is    expressly    authorized   by   section   15A-1446(d)(5)

notwithstanding absence of contemporaneous objection);         State v.

Williams, 92 N.C.App. 752, 753, 376 S.E.2d 21, 22 (N.C.App. 1989),

disc. review denied, 324 N.C. 251, 377 S.E.2d 762.         See N.C. GEN.

STAT. Sec. 15A-1446(d)(5).

     E. Conclusion
                          28
     When reviewing the sentencing worksheet, taking into account

the rules of Structured Sentencing when calculating the Defendant‘s

prior record level points, the defendant had fourteen prior record

points    which   would    place   him   at   a   Prior   Record   Level   IV.

Therefore, the State failed to prove by a preponderance of the

evidence that Mr. Rowland was a Record Level V offender with

sixteen prior record points because the State miscalculated the

proper number of record points based upon the convictions listed on

the worksheet.     Moreover, the trial court by statute was required

to ensure the accuracy of the worksheet and the trial court

improperly relied on the calculations made by the State of North

Carolina.    Accordingly, Mr. Rowland‘s case must be remanded for a

resentencing.



     V.   THE DEFENDANT WAS DENIED HIS RIGHT TO COUNSEL WHEN HIS
          COUNSEL FAILED TO OBJECT TO THE STATE‘S CONTENTION AND
          THE COURT‘S FINDING THAT THE DEFENDANT WAS A PRIOR RECORD
          LEVEL V.3
     Assignment of Error, No. 8; Rp. 40 through Rp. 43; Tp. 315,
line 1 through Tp. 315, line 25.

     The appellant would like to note that his counsel did not

object to the defendant being sentenced as a Record Level V.

However, every accused in a criminal case possesses a fundamental

right, secured by the Sixth and Fourteenth Amendments to the United


     3
      In the event that this Court holds that Issue #3 and #4
above was not properly preserved for appellate review, then the
defendant argues Issue #5.
                      29
States Constitution and Article I, Sections 19 and 23 of the North

Carolina   Constitution,     to   the   assistance   of   counsel   for   his

defense.   Cuyler v. Sullivan, 446 U.S. 335, 64 L.Ed.2d 333 (1980).

 The right to counsel is regarded as one of the most basic

components of due process of law and is ―one guarded of all trial

rights.‖   State v. Colbert, 311 N.C. 283, 285, 316 S.E.2d 79, 80

(1984).    This constitutional protection guarantees Mr. Rowland‘s

right of having the effective assistance of counsel.          Strickland v.

Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984).           Moreover, it has

been well established by this Court that sentencing is a critical

stage in the criminal process where the defendant is entitled to

the effective assistance of counsel.          See State v. Davidson, 77

N.C.App. 540, 335 S.E.2d 518 (N.C.App.         1985).     In this instance,

Mr. Rowland was denied his federal and state constitutional right

to the effective assistance of counsel when his trial counsel

allowed the defendant to be sentenced as a Prior Record Level V

based upon appellant‘s arguments in Issues #3 and #4 above.

Therefore, his sentence should be reversed so that he can be

properly sentenced in the proper prior record level.

     In order for a criminal defendant to be successful on the

grounds of ineffective assistance of counsel, the defendant has the

burden of satisfying a two-part test.         Strickland v. Washington,

466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984).                  First, the

defendant must show that counsel‘s performance was deficient.             Id.
                       30
 As argued above, it is apparent that the defendant in this case is

a prior record level IV with fourteen record points and trial

counsel‘s performance was deficient when she failed to correctly

calculate   the   defendant‘s   prior   record    level    points   on    the

worksheet submitted to the trial court, and by failing to object to

the incorrect prior record level and to the addition of one prior

record point pursuant to N.C.G.S. Section 15A-1340.14(b)(6).              The

appellant   contends   that   his   counsel‘s    conduct   fell   below    an

objective standard of reasonableness when she did not correct the

calculations set forth in the worksheet which set forth the

defendant‘s prior record level and because she failed to object to

this error.    See State v. Braswell, 312 N.C. 553, 561-562, 324

S.E.2d 241, 248 (1985).

     Second, the defendant must show that the deficient performance

prejudiced the defense.       Id.   In this instance, Mr. Rowland was

sentenced in the presumptive range and received an active sentence

of 151 months minimum to 191 months maximum as a Class C, Prior

Record Level V for the safecracking offense.        (Rp.   49).     However,

the maximum sentence in the presumptive range that Defendant could

have received as a Class C, Prior Record Level IV (the proper

record level) was 133 months minimum to 169 months maximum.               The

defendant was prejudiced in this instance because he received at

least 18 more months in prison minimum and 22 more months maximum

than what was statutorily permitted.     See N.C. GEN. STAT. Sec. 15A-
                          31
1340.17.      Without trial counsel‘s failure to properly determine the

defendant‘s prior record level and her failure to object, there is

a reasonable probability that the parties, including the trial

court, would have properly calculated the defendant‘s prior record

and Mr. Rowland would have received a different sentence.                     See

State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985).

     Since the defendant‘s counsel‘s performance was deficient and

because the defendant was prejudiced by this deficient performance,

he received a greater sentence that what was statutorily permitted.

This case should be reversed and remanded for resentencing.




                                  CONCLUSION

     For the reasons stated above, the conviction and judgment

should   be    reversed   and    remanded   for   a   new   trial   or   in   the

alternative, the defendant should receive a new sentencing hearing.

     Respectfully submitted, this the 8th day of August, 2008.




     Robert W. Ewing, N.C. State Bar #: 20960
     Attorney for Defendant-Appellant

              6201 Towncenter Drive, Suite 140
              Clemmons, NC 27012
              Tele: (336) 766-9301
              E-Mail: RobbyEwing@aol.com
                           32

                           CERTIFICATE OF SERVICE

      I hereby certify that this day a copy of Defendant-Appellant's

Brief has been duly served upon Joseph E. Elder, Esq., Assistant

Attorney General, North Carolina Department of Justice, Post Office

Box 629, Raleigh, NC 27602, by placing it in an envelope to which

first class postage has been affixed addressed to Joseph E. Elder

at   the   above   named    address,   and   placing   the   envelope   in   a

depository of the U.S. Postal Service.

      This the 8th day of August, 2008.




                   Robert W. Ewing
                   Attorney for Defendant-Appellant

				
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