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State v. Leopard4/15/1997
MARTIN, John C., Judge.
Defendant appeals from a judgment entered upon his conviction of assault with a deadly weapon inflicting serious injury. The State's evidence tended to show that on 13 December 1995 defendant and Dean Fowler went to the residence of defendant's estranged wife. Her current boyfriend, Tony Price was there. Defendant shot Price with a shotgun and held a knife to his throat. Upon hearing sirens in the distance, defendant got into a car and left the scene.
Defendant testified that he shot Tony Price because Price was moving toward his car and saying that he was going to get his gun to shoot defendant. He also testified that after he shot Price he approached Price with a knife because he was afraid of Price.
The jury found defendant guilty of assault with a deadly weapon inflicting serious injury. The trial court determined that defendant had five prior record points and that his prior record level was III. Based upon this prior record level, the trial court sentenced defendant to a minimum prison term of thirty-three months and a maximum prison term of forty-nine months.
Defendant first argues the trial court erred by assigning to him a prior record point for committing the offense while on probation. We disagree.
N.C. Gen. Stat. § 15A-1340.14 (Cum. Supp. 1996) sets out the method for determining a defendant's prior record points:
(a) Generally. -- The prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions that the court finds to have been proved in accordance with this section.
(b) Points. -- Points are assigned as follows:
(1) For each prior felony Class A conviction, 10 points.
(1a) For each prior felony Class B1 conviction, 9 points.
(2) For each prior felony Class B2, C, or D conviction, 6 points.
(3) For each prior felony Class E, F, or G conviction, 4 points.
(4) For each prior felony Class H or I conviction, 2 points.
(5) For each prior Class A1 or Class 1 misdemeanor conviction, 1 point, except that convictions for Class 1 misdemeanor offenses under Chapter 20 of the General Statutes, other than conviction for misdemeanor death by vehicle (G.S. 20-141.4(a2)), shall not be assigned any points for purposes of determining a person's prior record for felony sentencing.
(6) If all the elements of the present offense are included in the prior offense, 1 point.
(7) If the offense was committed while the offender was on probation or parole, or while the offender was serving a sentence of imprisonment, or while the offender was on escape from a correctional institution while serving a sentence of imprisonment, 1 point.
After the prior record point total is calculated pursuant to this statute, the prior record level is determined pursuant to N.C. Gen. Stat. § 15A-1340.14(c) (Cum. Supp. 1996).
The trial court in this case assigned two points each for defendant's two previous felony convictions and assigned one point under subsection (b)(7) because defendant committed the present offense while on probation for driving while impaired. Defendant's contention is that since the driving while impaired conviction, a misdemeanor offense under Chapter 20 of the General Statutes, could not be assigned a point under subsection (b)(5), the fact that he was on probation for that same offense should not have been assigned a point.
Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and
Page 1 2 North Carolina DUI Attorneys
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