Trashean J. Huntley (“Defendant”) appeals from judgments entered upon a jurys verdict of guilty of felony fleeing to elude arrest, failure to wear a seatbelt, failure to stop at a red light, attaining the status of a habitual felon, and his guilty plea possession of a firearm by a felon. Our review shows no error at trial. We remand for resentencing due to conceded errors in determining Defendants prior record level.
I. Background
Monroe Police Detective Matthew Sierk was patrolling in an unmarked vehicle and wearing plain clothes on 11 May 2021. Detective Sierk observed Defendant inside a car stopped at an intersection. Detective Sierk believed Defendant had an outstanding felony warrant. Detective Sierk also believed Defendant was not wearing a seatbelt.
Detective Sierk requested Detective Joseph Malone in an unmarked car to stop Defendant. Detective Malone observed Defendant drive through a red light. Both officers activated their lights and sirens. Defendant did not pull over, sped up, ran through two stop signs, and crossed a double yellow line to pass a car.
Detective Sierk called for marked vehicles to assist in stopping Defendant. Prior to marked backup vehicles arriving, Detective Malone saw what he believed to be a gun drop out of the open drivers side window. Sergeant Tim Sikes responded from the opposite lane of travel, made a u-turn, and got behind Defendant. Approximately a mile later Defendant pulled over and was arrested. Sergeant Adam Craig searched the area where Detective Malone spotted the gun drop and located a gun laying on the ground.
Defendant was indicted for felony flee to elude arrest with a motor vehicle, possession of a firearm by a felon, failure to stop at a red light, littering not greater than fifteen pounds, passing too closely on the left, and failure to wear a seatbelt. The State dismissed the littering not greater than fifteen pounds and passing too closely on the left charges at the conclusion of its case in chief.
Defendant was convicted of felony fleeing to elude arrest, failure to stop at a red light, failure to wear a seatbelt, and attaining habitual felon status. The jury failed to reach a verdict on the charge of possession of firearm by a felon. Defendant was sentenced to an active sentence of 80 to 108 months on 15 July 2022 and gave oral notice of appeal.
Defendant later entered a guilty plea to possession of a firearm by a felon. He was sentenced to an active sentence of 17 to 30 months to run consecutive to his other sentence on 11 October 2022. Defendant filed a petition for writ of certiorari on 30 June 2023, which was allowed by order on 5 September 2023 by this Court. This Court also ordered Defendants appeals to be joined on 5 September 2023.
II. Jurisdiction
This Court possesses jurisdiction over Defendants appeal of the 15 July 2022 judgment pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2023). This Court possesses jurisdiction over Defendants appeal of the 11 October 2022 judgment pursuant to the writ of certiorari. See N.C. R. App. P. 21(a) (A “writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action.”). The joined appeals are properly before us. Id.
III. Issues
Defendant argues the trial court erred by not requiring Defendants counsel to subpoena and call a witness after an absolute impasse had occurred between them and also erred in miscalculating his prior record level for sentencing.
IV. Absolute Impasse
A. Standard of Review
“The standard of review for alleged violations of constitutional rights is de novo.” State v. Graham. 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation omitted).
B. Analysis
Defendant argues the trial court committed reversible error by not requiring Defendants counsel to call Hasim Heath as a witness, after Defendant and his counsel had reached an absolute impasse. Defendant asserts the trial courts failure to require his counsel to follow his wishes on the issue violated his constitutional rights.
Defendant argues he is entitled to a new trial due to an “Ali” error and to have his strategic wishes honored by defense counsel. An Ali error occurs when “counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decisions, the clients wishes must control[.]” State v Ali, 329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991).
A defendants disagreement with counsel will not rise to the level of “an absolute impasse” as noted in a prior decision by this Court, State v. Curry, 256 N.C. App. 86, 97, 805 S.E.2d 552, 559 (2017). In Curry, the defendant argued an impasse had occurred because his trial counsel did not believe his version of the crime and charges pending against him. Id. at 98, 805 S.E.2d at 559. This Court held “no actual impasse exists where there is no conflict between a defendant and counsel[.]” Id. at 97, 805 S.E.2d at 559 (citation omitted). This Court emphasized that conclusory allegations asserting an impasse are not enough to award a new trial. Id. at 98, 805 S.E.2d at 559.
Defendant and his counsel both initially agreed for Heath not to be subpoenaed. (“There are two eyewitnesses there other than law enforcement officers. One of the two is Mr. Heath. [Defendant] does not want to call him for reasons that I would support, frankly.”). Defendant changed his mind after the State could not produce evidence from a GoPro camera of his interview with police on the night he was arrested.
Defendant demanded for Heath to be subpoenaed. Defendants counsel agreed. Defendants counsel made three separate motions for a continuance to subpoena Heath, which were denied. While Defendant and his counsel both agreed to have Heath subpoenaed, Defendants counsel was unable to subpoena him due to the ongoing nature of the trial. Defendants and his counsels agreement on this strategy cannot be said to rise to the level of an “absolute impasse as to such tactical decisions” as was described in Ali. Ali, 329 N.C. at 404, 407 S.E.2d at 189. Defendants argument is overruled.
V. Prior Record Level Calculation
Defendant argues he was sentenced based on an incorrect calculation of his prior record level in both the 15 July 2022 and 11 October 2022 judgments. The State concedes the 11 October 2022 judgment should be remanded for resentencing because it included the 15 July conviction for felony fleeing to elude in its calculation of prior record level points for the 11 October 2022 sentencing on the possession of a firearm by a felon charge when both charges were initially joined for trial together.
The State asserts Defendant stipulated to the prior record level, citing the following portion from Defendants sentencing hearing on 15 July 2022:
THE COURT: Oh, for today? All right All right. And let me make sure, [Defendant], yourre not stipulating to the record, right? I just want to make sure- -
[DEFENDANTS COUNSEL]: Hes asking if you agree that youre prior record level III or not.
DEFENDANT: Oh, yeah, Im agreeing to that.
THE COURT: You are agreeing? Okay. Im going to verify just to make sure.
DEFENDANT: Thats my - - yeah, aint no reason to not to.
THE COURT: Well, its up to you. You dont have to. What Ive got to do - -
DEFENDANT: If I dont, then what?
THE COURT: I just got to go through and look and - - what Im going to do anyway, Im going to do anyway, Im going to highlight that and make sure it all matches up okay with the convictions.
DEFENDANT: Okay.
THE COURT: But yeah, its up to you. You dont have to. Thats your right. If you do agree Ill just have you sign the back of it. Thats the only difference it makes, whether or not you sign the back of it agreeing that those are your convictions. But, again, thats up to you. It doesnt matter. If youre not sure, if you want a minute to take with [your counsel], thats fine, too.
DEFENDANT: I aint really - - I have to look over it again.
THE COURT: Okay.
DEFENDANT: Now that you put it in that kind of light.
THE COURT: Let me do this. Im going to just go through and verify it myself, and that way you dont have to - -
DEFENDANT: Yeah, I dont want to waste my time.
Defendant was informed he did not have to stipulate to being a prior record level III offender and responded he did not want to review it to enter the stipulation to the court. Defendant never signed the stipulation on the prior record level worksheet. In the event this Court did not agree the above colloquy was a stipulation, the State concedes a pre-2014 possession of paraphernalia conviction requires the State to prove that a pre-2014 possession of paraphernalia conviction was for non-marijuana paraphernalia for the conviction to be treated as a Class 1 misdemeanor. See State v. McNeil, 262 N.C. App 341, 821 S.E.2d 862 (2018). In light of the error and the States concession, the judgments are vacated and this cause is remanded for re-sentencing based upon the joined charges and correct calculation of Defendants prior record level. Id.
VI. Conclusion
We find no Ali error in counsels subpoenaing of Heath. Ali, 329 N.C. at 404, 407 S.E.2d at 189. Defendants judgments are vacated and this cause is remanded for resentencing utilizing Defendants correct prior record level. Defendants underlying convictions remain undisturbed. Defendant received a fair trial, free from prejudicial errors he preserved and argued. It is so ordered.
NO ERROR AT TRIAL, REMANDED FOR RESENTINCING
Report per Rule 30(e).
TYSON, Judge.
Judges WOOD and STADING concur.