An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 
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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 
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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.
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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 
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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.
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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 
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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 
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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 
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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 15A1444, 
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[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. 15A1340.17 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.
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Report per Rule 30(e).