                               NO. COA13-1001

                      NORTH CAROLINA COURT OF APPEALS

                           Filed: 4 March 2014


STATE OF NORTH CAROLINA


    v.                                    Onslow County
                                          No. 11 CRS 55170-3
MATTHEW PELHAM FLEIG



    Appeal by defendant from judgment entered 20 March 2013 by

Judge W. Allen Cobb, Jr. in Onslow County Superior Court.               Heard

in the Court of Appeals 3 February 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Ann W. Matthews, for the State.

    James W. Carter, for defendant.


    ELMORE, Judge.


    On   20   March    2013,   a   jury   found   Matthew    Pelham     Fleig

(defendant) guilty of multiple drug offenses.               The subject of

this appeal concerns judgment entered on those offenses in 11

CRS 055170 that stemmed from 10 August 2010: 1.) felony sale of

marijuana; 2.) felony delivery of marijuana; and 3.) misdemeanor

possession of marijuana.       Judge W. Allen Cobb, Jr. consolidated

these convictions and imposed a term of imprisonment for six-

months   minimum,     eight-months   maximum.       That     sentence     was
                                                -2-
suspended,       and   defendant         was     placed    on    probation   for     thirty

months   and      required        to    served     a   thirty-day     active      sentence.

Defendant now appeals and contends that the trial court erred by

sentencing him for both sale and delivery of marijuana.                                  After

careful consideration, we remand for a new sentencing hearing

with instructions to vacate either the 1.) sale of marijuana

conviction or 2.) delivery of marijuana conviction.

                                                I. Facts

    On      5    August       2010,       the    Jacksonville       Police       Department

conducted a traffic stop of Sarah Lyon’s vehicle, and it was

discovered that the passenger in her car possessed marijuana, a

marijuana        grinder,         and     digital        scales.          After     further

investigation,         Lyon       was      never       charged     with    any     criminal

offenses.       Thereafter, she was asked by the Jacksonville Police

Department if she knew any individuals who were involved in the

sale of narcotics in the local area.                        She provided the police

with defendant’s name and agreed to assist them in conducting a

controlled buy of marijuana from defendant.                         On 10 August 2010,

officers        recorded      a        phone    conversation       between        Lyon     and

defendant in which she asked to purchase marijuana from him.

Defendant agreed, and the police department gave Lyon a twenty-

dollar bill to buy the marijuana.                         Equipped with a recording
                                       -3-
device, Lyon drove to defendant’s house, picked him up, and they

drove to another location in the neighborhood to conduct the

drug deal.      Lyon provided defendant with twenty dollars, and he

gave her a “dime bag” of marijuana (bag) in return.                       Knowing

that one bag was not a sufficient amount of marijuana for the

price     of    twenty    dollars,     Lyon       immediately     requested   an

additional bag.        Defendant did not have any additional marijuana

on his person because he thought Lyon only wanted one bag, but

he agreed to give Lyon the additional quantity she requested.

They    drove   back     to   his   house    to    retrieve     more   marijuana,

defendant obtained another bag, and he gave it to Lyon. Lyon did

not pay defendant, nor did defendant request, additional money

for the second bag.           After Lyon received the second bag, she

left defendant’s house and relinquished                 the recording device

and marijuana to the Jacksonville Police Department.

                                     II. Analysis

a.) Writ of Certiorari

       Defendant seeks appellate review by petition for writ of

certiorari because of his trial counsel’s failure to give proper

notice of appeal pursuant to North Carolina Appellate Procedure

Rule 4.    For the reasons that follow, we allow defendant’s writ

of certiorari.
                                       -4-
    Rule 4 mandates that appeal from a judgment rendered in a

criminal case must be given either orally at trial or by “filing

notice of appeal with the clerk of superior court and serving

copies thereof upon all adverse parties within fourteen days

after entry of the judgment[.]”              N.C. R. App. P. 4.          Should a

defendant fail to timely appeal, a writ of certiorari “may be

issued in appropriate circumstances by either appellate court to

permit review of the judgments[.]”               N.C.R. App. P. 21.           This

Court has held that an appropriate circumstance to issue writ of

certiorari occurs when “a defendant’s right to appeal has been

lost because of a failure of his or her trial counsel to give

proper notice of appeal.”          State v. Gordon, ___ N.C. App. ___,

___, 745 S.E.2d 361, 363 (2013) review denied, 749 S.E.2d 859

(2013).

    Here,      defendant’s      counsel   did   not    give     oral   notice   of

appeal at trial because he needed to speak with defendant to

ascertain      whether   defendant     sought    to    appeal    the     judgment.

After conferring with defendant, defendant’s attorney gave oral

notice    of   appeal    five   days   later    in    Onslow    County   Superior

Court.     However, defendant’s counsel failed to file a written

notice of appeal with the Onslow County Clerk of Superior Court

and serve copies upon the State within fourteen days after entry
                                             -5-
of judgment.         As a result, defendant’s right to appeal was lost.

However, the lost appeal was no fault of defendant’s but an

error by his trial attorney.                 Accordingly, we grant defendant’s

petition for writ of certiorari and address the merits of his

appeal.

b.) Sentencing Error

       Defendant argues that the trial court erred in sentencing

him    to     a    consolidated       judgment     of    6-8        months   for     the    two

separate offenses of selling marijuana and delivering marijuana

per    N.C.       Gen.    Stat.   §   90-95(a)(1).            Specifically,        defendant

argues      that     that    he    was     sentenced     twice        for    conduct       that

constituted a single offense.                We agree.

       “[We review alleged sentencing errors for] ‘whether [the]

sentence is supported by evidence introduced at the trial and

sentencing hearing.’” State v. Deese, 127 N.C. App. 536, 540,

491    S.E.2d      682,     685   (1997)    (quoting         N.C.    Gen.    Stat.    §    15A-

1444(a1) (Cum. Supp. 1996)).                 Under N.C. Stat. § 90-94 (2013),

marijuana is classified as a schedule VI controlled substance.

Pursuant to N.C. Gen. Stat. § 90-95(a)(1) (2013), it is unlawful

for an individual to              “manufacture, sell or deliver, or possess

with    intent       to    manufacture,       sell      or    deliver,       a   controlled

substance[.]”            The statute establishes three distinct offenses:
                                          -6-
“(1) manufacture of a controlled substance, (2) transfer of a

controlled substance by sale or delivery, and (3) possession

with    intent     to   manufacture,          sell       or      deliver    a   controlled

substance.”        State v. Moore, 327 N.C. 378, 381, 395 S.E.2d 124,

126 (1990) (emphasis in original).                          A sale is defined as “a

transfer of property for a specified price payable in money”

while a delivery is “the actual [sic] constructive, or attempted

transfer     from       one     person        to     another          of    a   controlled

substance[.]”        Id. at 382, 395 S.E.2d at 127 (citations and

quotations    omitted)         (emphasis       in       original).         In   addressing

offense (2) above, our Supreme Court has ruled that “each single

transaction        involving     transfer          of       a    controlled     substance”

creates a single offense, “which is committed by either or both

of two acts—sale or delivery.”                 Id.       Thus, a defendant “may not

. . . be convicted under N.C.G.S. § 90-95(a)(1) of both the sale

and the delivery of a controlled substance arising from a single

transfer.”    Id. (emphasis in original).

       Here, the transaction began when Lyon gave defendant twenty

dollars,     and     defendant     gave       her       a       bag   in   return.       The

transaction continued because neither sale nor delivery of the

marijuana was complete.            A negotiation ensued as Lyon requested

an   additional      bag      because    of    the       amount       of   money   she   had
                                                 -7-
provided      to    defendant.             Defendant       acquiesced,     retrieved       more

marijuana from his house, and completed the sale by delivering

the bag to Lyon.              Thus, the transaction concluded when defendant

gave the second bag to Lyon.                       The transfer of the second bag

from    defendant             to    Lyon    simultaneously         completed       sale     and

delivery of the drug transaction because Lyon received the total

quantity of marijuana she requested for the specified price of

twenty dollars.                Since defendant’s acts of sale and delivery

arose    from       a    single         transaction,        defendant      was     improperly

sentenced      on       the    separate         offenses    of   sale    and     delivery    of

marijuana.          Thus,          we     remand    this     matter      for     resentencing

notwithstanding the consolidated judgment.                         See id. at 383, 395

S.E.2d at 127-28 (holding that when separate convictions for

sale    and    delivery            were    in    error     and   consolidated       into    one

judgment,      this      Court       must       remand   because    we    are     “unable    to

determine what weight, if any, the trial court gave each of the

separate convictions for sale and for delivery” in calculating

the imposed sentences);                   See also State v. Rogers, 186 N.C. App.

676, 678, 652 S.E.2d 276, 277 (2007) (remanding for resentencing

where the trial court erred by sentencing defendant for both

sale and delivery of a controlled substance).                            On remand, either

the conviction for 1.) sale of marijuana or 2.) delivery of
                                      -8-
marijuana in 11 CRS 055170 should be vacated to reflect that

defendant was convicted of a single count of “sale or delivery”

of marijuana.

                                III.    Conclusion

    In sum, the trial court erred by sentencing defendant for

the sale and delivery of marijuana when his conduct constituted

a single offense.      Therefore, we remand for a new sentencing

hearing   with   instructions    to    vacate   either   the   1.)   sale   of

marijuana conviction or 2.) delivery of marijuana conviction in

11 CRS 055170.

    Remanded.

    Chief Judge MARTIN and Judge HUNTER, Robert N., concur.
