An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-591
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 January 2014


STATE OF NORTH CAROLINA


      v.                                         Stokes County
                                                 Nos. 10 CRS 446, 50048-50,
                                                 51449
MELVIN CHARLES HARRELL



      Appeal by defendant from judgment entered 8 December 2010

by Judge L. Todd Burke in Stokes County Superior Court.                       Heard

in the Court of Appeals 22 October 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Phyllis A. Turner, for the State.

      William B. Gibson for defendant-appellant.


      BRYANT, Judge.


      Because defendant’s felony conviction for escape from jail

was used both to establish his habitual felon status and to

calculate     his    prior    record     level     in     violation   of   General

Statutes section 14-7.6, we reverse the trial court’s judgment

and remand for resentencing.                Because the trial court entered

judgment    against     defendant      on    a   charge    of   possession    of   a
                                      -2-
firearm by a felon, when no indictment had been entered as to

that charge, we vacate the trial court’s judgment as to that

charge.

       On 5 April 2010, under file number 10 CRS 50048, a Stokes

County Grand Jury indicted defendant Melvin Charles Harrell on

the charge of extortion.        Under file number 50049, defendant was

indicted on charges of breaking and entering a motor vehicle,

larceny, possession of stolen goods, and larceny of a firearm.

The grand jury also indicted defendant on attaining habitual

felon     status;    however,    on   4     October    2010,     a     superseding

indictment on attaining habitual felon status was issued under

file number 10 CRS 446.          Also, on 4 October 2010, under file

number 10 CRS 51449, the grand jury indicted defendant on the

charge of second-degree murder for the murder of eighty-four

year old Ida Plummer Stilley.

       On 8 December 2010, defendant and the State entered into a

plea    agreement    wherein    defendant     agreed    to     plead    guilty   to

attaining habitual felon status under file number 10 CRS 446;

extortion under file number 10 CRS 50048; breaking and entering

of a motor vehicle, felony larceny, and larceny of a firearm

under file number 10 CRS 50049; possession of a firearm by a

felon     under     file   number     10     CRS      50050;     and     voluntary
                                          -3-
manslaughter,       reduced      from    second-degree         murder        under    file

number 10 CRS 51449.

       The    Honorable    L.    Todd    Burke,      Judge   presiding,         accepted

defendant’s guilty pleas.               The trial court credited defendant

with six prior record level points, making him a level three

felon   for    sentencing       purposes.           The   trial    court      entered    a

consolidated        judgment      for     all       convictions        and     sentenced

defendant to a term of 104 to 134 months.

       On 4 December 2012, defendant filed with this Court a pro

se petition for writ of certiorari for review of his sentence.

By    order    of   this    Court,      defendant’s       petition      for     writ    of

certiorari      “[was]     allowed      for   the    purpose      of   reviewing       the

judgment entered 8 December 2010 . . . limited to those issues

for which Defendant-Petitioner has an appeal of right pursuant

to N.C. Gen. Stat. ' 15A-1444(a2).”1

                         __________________________________

       On appeal, defendant raises the following issues: whether

the   trial    court     erred    in    (I)     calculating       defendant’s        prior

record level; (II) accepting defendant’s plea in case number 10



1
  On 7 June 2013, defendant filed a second petition for writ of
certiorari asking for an expanded review of issues defendant
brought forth on appeal.   Defendant’s second petition for writ
of certiorari was denied by this Court on 23 October 2013. See
Issues IV, V, and VI.
                                          -4-
CRS 50050 (possession of a firearm by a felon); (III) finding

substantial        similarity          between       defendant’s          out-of-state

convictions       and      North       Carolina       felonies;       (IV)      finding

substantial basis for the convictions to which defendant pled

guilty;    and     (V)     failing       to   determine      whether      defendant’s

admissions were made knowingly and voluntarily.                       Defendant also

argues that he received (VI) ineffective assistance of counsel.

      At the outset, we acknowledge that prior to the hearing

date in this Court, defendant filed with this Court a motion to

withdraw    his    third       issue   presented      on    appeal    challenging     a

conclusion       that     defendant’s         out-of-state         convictions     were

substantially similar to North Carolina offenses.                           We allowed

the   motion     and    deem    the    arguments     stricken      from     defendant’s

brief.

                                                I

      Defendant        first    argues    that      the    trial    court     erred   in

calculating his prior record level and sentencing him as a level

III felon with six prior record level points.                          Specifically,

defendant contends that the trial court erred by using the same

felony conviction both in its calculation of defendant’s prior

record    level    and    in    establishing        defendant’s      habitual     felon
                                         -5-
status.      We agree and also note that the State concedes that

defendant’s argument is correct.

      “[T]he trial court's assignment of a prior record level is

a conclusion of law, which we review de novo.”                 State v. Mack,

188   N.C.   App.   365,   380,    656    S.E.2d   1,   12   (2008)   (citation

omitted).

      “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 . . . .”        N.C. Gen. Stat. ' 15A-1340.14(a) (2013).

“In   determining    the   prior    record     level,   convictions    used   to

establish a person's status as an habitual felon shall not be

used.”    N.C. Gen. Stat. ' 14-7.6 (2013).

      Our General Statutes, section 14-7.1 defines habitual felon

as follows:

             Any person who has been convicted of or pled
             guilty to three felony offenses . . .     is
             declared to be an habitual felon and may be
             charged as a status offender pursuant to
             this Article. . . . The commission of a
             second felony shall not fall within the
             purview of this Article unless it is
             committed after the conviction of or plea of
             guilty to the first felony. The commission
             of a third felony shall not fall within the
             purview of this Article       unless it is
             committed after the conviction of or plea of
             guilty to the second felony.
                                        -6-
N.C. Gen. Stat. § 14-7.1 (2013).

      On 4 October 2010, a Stokes County grand jury issued a

superseding indictment under file number 10 CRS 466 charging

defendant with attaining habitual felon status.                  The following

felony    offenses    were    alleged    in   the   indictment    and   used    to

establish habitual felon status: (1) larceny by conversion, for

which defendant was convicted on 14 November 1986 in Michigan;

(2) escape from jail, for which defendant was convicted on 29

April 1988 in Carter County, Tennessee (case number 9101); and

(3)   attempted     false    pretenses   involving    property     valued    over

$100.00, for which defendant was convicted on 16 August 1990.

      On 8 December 2010, in accordance with his plea agreement,

defendant pled guilty to attaining habitual felon status.                      The

State    provided    judgments    for    each   conviction   alleged    in     the

superseding indictment (file number 10 CRS 466).                 In calculating

defendant’s prior record level, the trial court scored two prior

felony class I convictions and two prior misdemeanor class 1

convictions in calculating defendant’s six prior record level

points, giving him a prior felony record level of III.                         On

defendant’s prior convictions worksheet, two class I convictions

were listed: embezzlement, for which defendant was convicted on

3 September 1992; and escape, for which defendant was convicted
                                     -7-
on 29 April 1988 in Carter County, Tennessee.               The file number

listed with the escape offense is case number 9101.

      Defendant’s 29 April 1988 conviction for escape from jail

in   Carter    County,   Tennessee   is     listed   both   in   establishing

defendant’s habitual felon status and defendant’s prior record

level.     This is a violation of General Statutes, section ' 14-

7.6 (“In determining the prior record level, convictions used to

establish a person's status as an habitual felon shall not be

used.”).      Accordingly, we reverse the trial court’s judgment and

remand for re-sentencing.

                                           II

      Defendant argues that the trial court erred in accepting

defendant’s plea of guilty and entering judgment against him on

the charge of possession of a firearm by a felon under case

number 10 CRS 50050.       Defendant contends that no indictment was

entered    against   him   and,   therefore,     the   trial     court   lacked

jurisdiction to accept his plea.            The State also concedes that

defendant’s conviction should be vacated.            We agree.

      “North Carolina law has long provided that there can be no

trial, conviction, or punishment for a crime without a formal

and sufficient accusation. In the absence of an accusation the

court acquires no jurisdiction whatsoever, and if it assumes
                                            -8-
jurisdiction a trial and conviction are a nullity.”                               State v.

Partridge, 157 N.C. App. 568, 570, 579 S.E.2d 398, 399 (2003)

(citing to McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15,

17-18     (1966))    (citation,        quotations,           and    brackets     omitted).

“When     the    record   shows   a    lack       of   jurisdiction         in   the   lower

court, the appropriate action on the part of the appellate court

is   to    arrest    judgment     or    vacate         any    order    entered     without

authority.”         State v. Crawford, 167 N.C. App. 777, 779, 606

S.E.2d 375, 377 (2005) (citation and quotations omitted).

         Pursuant to General Statutes, section 15A-641,

                (a) Any indictment is a written accusation
                by a grand jury, filed with a superior
                court, charging a person with the commission
                of one or more criminal offenses.

                (b) An information is a written accusation
                by a prosecutor, filed with a superior
                court, charging a person represented by
                counsel with the commission of one or more
                criminal offenses.

N.C. Gen. Stat. ' 15A-641(a), (b) (2013).                          On the record before

us there is no indication that a formal accusation was made

against defendant on the charge of possession of a firearm by a

felon.      The record before us contains neither an indictment nor

a bill of information on the charge of possession of a firearm

by   a    felon.     However,     on    8    December        2010,    the    trial     court

accepted defendant’s plea of guilty to this offense and included
                                     -9-
the conviction for possession of a firearm by a felon on the 8

December 2010 consolidated judgment sentencing defendant to a

term of 104 to 134 months.

    As there was no formal accusation against defendant of the

criminal offense possession of a firearm by a felon, the trial

court lacked jurisdiction to accept defendant’s guilty plea on

this charge, and we must vacate the judgment entered against

defendant on the charge of possession of a firearm by a felon

under file number 10 CRS 50050.            See Crawford, 167 N.C. App. at

779, 606 S.E.2d at 377.

                                    IV, V, & VI

    In defendant’s arguments presented in sections IV, V, and

VI of his brief, defendant challenges whether the trial court

erred in accepting his guilty pleas for lack of a factual basis,

whether his admissions were made knowingly and voluntarily, and

whether he received ineffective assistance of counsel.

    We   note    that    pursuant    to    our   10   December    2012   order

defendant’s     appeal   was   “limited     to   those   issues    for   which

Defendant-Petitioner has an appeal of right pursuant to N.C.

Gen. Stat. ' 15A-1444(a2).”

    Pursuant to North Carolina General Statutes, section 15A-

1444,
                                        -10-
              [a] defendant who has entered a plea                     of
              guilty or no contest to a felony                         or
              misdemeanor in superior court is entitled                to
              appeal as a matter of right the issue                    of
              whether the sentence imposed:

              (1) Results from an incorrect finding of the
              defendant's prior record level under G.S.
              15A-1340.14   or   the    defendant's   prior
              conviction level under G.S. 15A-1340.21;

              (2) Contains a type of sentence disposition
              that is not authorized by G.S. 15A-1340.17
              or G.S. 15A-1340.23 for the defendant's
              class of offense and prior record or
              conviction level; or

              (3) Contains a term       of imprisonment that is
              for a duration not        authorized by G.S. 15A-
              1340.17   or   G.S.        15A-1340.23   for  the
              defendant's class         of offense and prior
              record or conviction      level.

N.C.   Gen.     Stat.   §   15A-1444(a2)       (2013).       Because    defendant’s

arguments under heading IV through VI contain issues that are

outside the scope of the categories enumerated under section

15A-1444(a2), and because we have previously denied defendant’s

petition for writ of certiorari to review these arguments, they

will not be heard on appeal.               Accordingly, we dismiss these

arguments.

       Vacate    possession    of   a   firearm     by   a    felon    conviction;

reverse and remand for resentencing on remaining charges.



       Judges McGEE and STROUD concur.
                         -11-
Report per Rule 30(e).
