Criminal Practice – Concealed Firearm Statute – Probationary Period

The trial court erred in entering judgment on two firearm convictions and in imposing a 24-month probation term without requisite findings but did not err in referencing the items seized during sentencing.

Because we discerned error in part, we reversed and remanded for resentencing.

Defendant appealed her convictions for two counts of carrying a concealed firearm. The case arose from events in October 2020, when Asheville Police officers, monitoring a Housing Authority property due to reports of drug activity, observed Defendant in a vehicle with her juvenile sister. Officers detected marijuana and, during a search, found two firearms, approximately 123 grams of marijuana, $10,480 in cash, a digital scale, and other paraphernalia. Defendant initially claimed to have a concealed carry permit, which she did not possess. She was indicted on multiple charges, including possession with intent to sell marijuana, carrying concealed firearms, maintaining a vehicle for drug purposes, possession of paraphernalia, and felony possession of marijuana. The State dismissed the possession with intent charge, and the trial proceeded. At trial, Defendant was acquitted of all charges except the two counts of carrying a concealed firearm.

Defendant argued on appeal that the trial court erred in three ways: entering judgment on two counts of carrying a concealed firearm, imposing a 24-month probation term, and relying on improper considerations during sentencing. Regarding the firearm convictions, Defendant contended that under N.C. Gen. Stat. §14-269, a single offense constitutes one unit of prosecution regardless of the number of firearms possessed simultaneously. The Court of Appeals agreed that the statute is ambiguous and, following precedent from State v. Conley, Smith, and Garris, applied the rule of lenity to hold that only one conviction was appropriate. The Court noted, however, that any error was not prejudicial because the trial court had consolidated the Defendant’s two convictions for sentencing purposes, and North Carolina law counts only the conviction with the highest point value for prior record purposes.

Defendant also challenged the trial court’s 24-month probation sentence, asserting it exceeded the statutory maximum for misdemeanors. The Court agreed, observing that under N.C. Gen. Stat. §15A-1343.2(d), a defendant convicted of a misdemeanor is generally limited to 18 months of probation unless the court makes specific findings justifying a longer term. Because the trial court made no such findings, the appellate court determined that resentencing was necessary.

Finally, Defendant argued the trial court improperly considered acquitted conduct during sentencing, referencing the firearms, cash, and other items found in her vehicle. The Court rejected this claim, reasoning that the items were alleged in the indictment and that the court’s statements reflected concern with Defendant’s proximity to these items rather than a determination of guilt. The Court emphasized that trial courts are afforded wide latitude at sentencing, and the record did not show improper consideration.

No prejudicial error in part; reversed and remanded in part.

State of North Carolina v. Simpson (Lawyers Weekly No. 011-004-26, 15 pp.) (Jeff Carpenter, J.) Appealed from Buncombe County Superior Court (Karen Eady-Williams, J.) Attorney General Jeff Jackson, by Assistant Deputy Attorney General Marc D. Brunton, for the State. Jason Christopher Yoder, for Defendant-Appellant. North Carolina Court of Appeals