Jerod Irvin Freeman (“Defendant”) appeals from a judgment entered upon his guilty plea to one count of breaking or entering a building to terrorize or injure its occupants. On appeal, Defendant argues the trial court erred in calculating his prior-record level. After careful review, we agree with Defendant and remand for resentencing.
I. Factual & Procedural Background
On 11 January 2023, Defendant appeared in Buncombe County Superior Court in order to plead guilty to: one count of breaking or entering a building to terrorize or injure its occupants, three counts of conspiracy to commit robbery with a dangerous weapon, one count of larceny of a motor vehicle, two counts of carrying a concealed gun, and one felony count of possession of a schedule-II controlled substance.
In his plea agreement, Defendant stipulated he was a prior-record level II offender because the offenses to which he was pleading guilty were committed while he was on probation. The prior conviction for which Defendant was presumably on probation, however, was for possession of drug paraphernalia, which occurred on 11 April 2022.
The trial court accepted Defendants plea agreement and announced two judgments for the charges. The first judgment, assigned 21 CRS 86692, included only one count of breaking or entering a building to terrorize or injure its occupants, which occurred on 2 August 2021. The second judgment, assigned 21 CRS 86693, included three counts of conspiracy to commit robbery with a dangerous weapon, which also occurred on 2 August 2021. But the second judgment also included the following crimes, all of which occurred after 11 April 2022: one count of larceny of a motor vehicle, two counts of carrying a concealed gun, and one felony count of possession of a schedule-II controlled substance.
In both judgments, the trial court sentenced Defendant within the presumptive range for a prior-record level II offender. On 24 January 2023, Defendant filed notice of appeal.
II. Jurisdiction
This Court has jurisdiction under N.C. Gen. Stat. § 15A-4444(a2)(1) (2021).
III. Issue
The issue on appeal is whether the trial court erred in calculating Defendants prior-record level concerning his first judgment, 21 CRS 86692.
IV. Analysis
A trial courts determination of a defendants prior-record level is a conclusion of law, which we review de novo. State v. McNeil, 262 N.C. App. 340, 341, 821 S.E.2d 862, 863 (2018). Under a de novo review, “ ‘the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. Pship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
Article 81B allows criminal sentences based on two factors: a “class of offense” and the offenders “prior record level.” N.C. Gen. Stat. § 15A-1340.13(b) (2021). A sentencing judge must determine an offenders prior-record level by adding together the point levels of each of the offenders prior convictions. Id. § 15A-1340.14(a)–(b). Judges may consolidate multiple offenses into a single judgment. Id. § 15A-1340.15(b).
Here, the trial court sentenced Defendant as a prior-record level II offender concerning both judgments. The trial court based both of its prior-record level II determinations on the premise that Defendant was on probation from his conviction for possessing drug paraphernalia. But Defendants conviction for possessing drug paraphernalia occurred on 11 April 2022. Defendants crime of breaking or entering a building to terrorize or injure its occupants, however, occurred on 2 August 2021. Therefore, Defendant could not have been on probation for possessing drug paraphernalia when he committed breaking or entering a building to terrorize or injure its occupants because that crime occurred before the drug-paraphernalia conviction.
So because Defendants breaking-or-entering crime was the only crime included in the first judgment, 21 CRS 86692, Defendant was a record-level I offender concerning the first judgment. See id. § 15A-1340.14(a)–(b). Accordingly, the trial court erred when it sentenced Defendant as a record-level II for the first judgment.
1
See id.
V. Conclusion
We conclude the trial court erred in calculating Defendants prior-record level for the first judgment, 21 CRS 86692. Therefore, we reverse the trial courts sentencing concerning this judgment and remand for the trial court to sentence Defendant in accordance with his prior-record level I status.
REVERSED in part and REMANDED.
Report per Rule 30(e).
FOOTNOTES
1
. On the other hand, the trial court appropriately determined Defendant was a record-level II offender concerning the second judgment, 21 CRS 86693, because it included offenses committed while Defendant was on probation. See id. § 15A-1340.15(b).
CARPENTER, Judge.
Judges COLLINS and WOOD concur.