Attorney General Roy A. Cooper, III, by Assistant Attorney General Douglas W. Corkhill, for the State.

Linda B. Weisel, for the Defendant.

DILLON, Judge.

Timothy Allen Foxworth (“Defendant”) appeals from a judgment sentencing him as a prior record level III offender and assessing costs against him. For the following reasons, we affirm in part, reverse in part for correction of a sentencing error, vacate the portion of the judgment assessing costs, and remand for resentencing consistent with this opinion.

I. Background

On 1 March 2010 Defendant pleaded guilty to second-degree murder. In his plea, Defendant stipulated that he had a 1984 military conviction for attempted murder; that this conviction was for a crime “equivalent” to attempted murder under North Carolina law; that the conviction should count as six prior record level points; and that he was, therefore, a prior record level III offender. The trial court entered judgment against Defendant, sentencing him as a prior record level III offender. In 2013, however, we ordered a new sentencing hearing because it appeared that the trial court erroneously sentenced Defendant based on Defendant's stipulationthat the military conviction was substantially similar to a North Carolina offense rather than on the court's determinationthat the offenses were substantially similar—in light of our decision in State v. Hanton, 175 N.C.App. 250, 255, 623 S.E.2d 600, 604 (2006).

On remand, the trial court entered judgment against Defendant, once again sentencing him as a prior record level III offender. This time, however, the judgment indicated that the court had found by a preponderance of the evidence that the out-of-state conviction was for an offense substantially similar to a North Carolina offense. The trial court also entered conclusions of law, concluding that the State had met its burden of proving the substantial similarity of the offenses. The trial court also assessed costs against Defendant. Defendant entered notice of appeal in open court.

II. Analysis

Defendant does not argue any error in his second-degree murder conviction, instead limiting argument to issues related to sentencing and the assessment of costs against him. Therefore, all argument challenging his second-degree murder conviction is waived. SeeN.C. R.App. P. 10. Our review is limited to the arguments raised, which we address in turn.

A. Prior Record Level Determination

Defendant argues that the trial court erred in calculating his prior record level points which led to his sentencing at prior record level III, rather than at prior record level II. Specifically, Defendant contends that the trial court erred in assigning six (6) points for his 1984 military conviction of attempted murder under the Uniform Code of Military Justice (UCMJ) by determining that this crime is substantially similar to the crime of attempted murder under North Carolina law. Defendant contends that the trial court should have only assigned two (2) points for the military conviction. We agree.

A defendant's prior record level for felony sentencing is calculated by adding the prior record level points attributable to his previous convictions. State v. Hinton,196 N.C.App. 750, 751, 675 S.E.2d 672, 673 (2009). Subsection (b) of N.C. Gen.Stat. § 15A–1340.14 supplies the point values to be assigned to each prior conviction. N.C. Gen.Stat. § 15A–1340.14(b) (2009). For out-of-state convictions, where the State proves by a preponderance of the evidence that the offense is substantially similar to a North Carolina offense, the same number of points must be assigned to the out-of-state conviction as would be assigned to the similar North Carolina offense. N.C. Gen.Stat. § 15A–1340.14(e) (2009). However, where the State fails to meet its burden of proving substantial similarity, an out-of-state conviction which is classified as a felony in the other jurisdiction will be treated as a Class I felony, and will be assigned two points. N.C. Gen.Stat. § 15A–1340.14(b)(4) and (e) (2009). See Hinton,196 N.C.App. at 755, 675 S.E.2d at 675.

A defendant with between six and nine prior record level points is sentenced at prior record level III. N.C. Gen.Stat. § 15A–1340.14(c)(3) (2009). A defendant with between two and five points is sentenced at prior record level II. Id.§ 15A–1340.14(c)(2). The trial court in the present case assigned Defendant seven (7) points, classifying him as a prior record level III offender.

Defendant contends, however, that the trial court erred in concluding that his 1984 military conviction was for an offense that was “substantially similar” to attempted murder under North Carolina law. Therefore, Defendant contends, since the State did not present evidence that the 1984 military conviction was substantially similar to another North Carolina offense, the trial court should have assigned him only three (3) prior record level points—assigning his 1984 military conviction two (2) points as a Class I felony—and classifying him as a record level II offender.

We review the trial court's determination of substantial similarity de novo. State v. Fortney, 201 N.C.App. 662, 669, 687 S.E.2d 518, 524 (2010).

Our Supreme Court has recently held that the “[d]etermination of whether [an] out-of-state conviction is substantially similar to a North Carolina offense is a question of law involving comparison of the elements of the out-of-state offense to those of the North Carolina offense.” State v. Sanders,–––N.C. ––––, ––––, 766 S.E .2d 331, 334 (2014) (emphasis added). In Sanders,our Supreme Court observed that this Court was correct in deciding in Hanton, supra,that “the New York offense of second-degree assault is not substantially similar to the North Carolina offense of assault inflicting serious injury because, unlike the North Carolina offense, the New York offense does not require that the defendant cause ‘serious' physical injury [.]” Sanders,––– N.C. at ––––, 766 S.E.2d at 334. In other words, the Supreme Court approved of this Court's determination in Hantonthat an out-of-state conviction was not substantially similar to a North Carolina offense based on the fact that the North Carolina offense required the proof of an additional element.

Based on the Supreme Court's rationale in Sanders,we are compelled to conclude that the trial court in the present case erred in determining that Defendant's military conviction for attempted murder under the UCMJ was substantially similar to attempted murder under North Carolina law, as the North Carolina offense requires the proof of an additional element, namely premeditation.

Specifically, although a conviction of attempted murder under the UCMJ requires proof of a specific intent to kill, see United States v. DeAlva,34 M.J. 1256, 1258 (A.C.M.R.1992), military courts recognize two varieties of attempted murder: attempted premeditated murder, and attempted unpremeditated murder. See, e.g ., United States v. Alameda,57 M.J. 190, 201 (C.A.A.F.2002) ; United States v. Axelson,65 M.J. 501, 519–20 (A.Ct.Crim.App.2007) ; United States v. Johnson,25 M.J. 503, 504–05 (A.F.C.M.R.1987). In other words, the element of “premeditation” is not required for a conviction of attempted murder under the UCMJ.

Under North Carolina law, however, “premeditation” is a required element of attempted murder. Specifically, our Supreme Court has held that while attempted first-degree murder, based on premeditation, is recognized in North Carolina, attempted second-degree murder is not. State v. Coble, 351 N.C. 448, 450, 527 S.E.2d 45, 47 (2000) (rejecting attempted second-degree murder).

Our Supreme Court in Cobledefined first-degree murder as “(1) the unlawful killing, (2) of another human being, (3) with malice, and (4) with premeditation and deliberation.” Id.at 449, 527 S.E.2d at 46 (emphasis added). The Court went on to state that “[t]he elements of second-degree murder, on the other hand, are: (1) the unlawful killing, (2) of another human being, (3) with malice, but (4) withoutpremeditation and deliberation.” Id.(emphasis added). Our Supreme Court then reasoned it was “logically impossible” to attempt to commit second-degree murder, because, as a general intent crime, second-degree murder “does not have, as an element, [the] specific intent to kill.” Id.at 451, 527 S.E.2d at 48. The court therefore concluded that “attempted second-degree murder does not exist under North Carolina law.” Id.at 453, 527 S.E.2d at 49 (internal marks omitted).

It may be that Defendant's military conviction is substantially similar to some other North Carolina offense. However, the State did not provide evidence of any other crime, as is its burden. Accordingly, as Defendant has stipulated that his 1984 military conviction was a felony conviction, the conviction must be treated as a Class I felony for purposes of determining his prior record level, and Defendant must be assigned two points for the conviction. See State v. Bohler, 198 N.C.App. 631, 637–38, 681 S.E.2d 801, 806 (2009) (holding that a defendant may stipulate that he has “been convicted of a particular out-of-state offense and that this offense is either a felony or a misdemeanor under the law of that jurisdiction”), disc. review denied,––– N.C. ––––, 691 S.E.2d 414 (2010). We, therefore, reverse and remand for resentencing with instructions to the trial court to enter a judgment sentencing Defendant at prior record level II.

B. Mitigating Factors

Defendant next contends that the trial court erred in failing to find as mitigating factors both that he was gainfully employed and that he had a positive employment history. We disagree.

We note at the outset that “ha[ving] a positive employment history or [being] gainfully employed,” despite being phrased disjunctively in the statute, constitutes a single mitigating factor . N.C. Gen.Stat. § 15A–1340.16(e)(19) (2009).

North Carolina trial courts enjoy “wide latitude in arriving at the truth as to the existence of aggravating and mitigating circumstances[.]” State v. Ahearn, 307 N.C. 584, 596, 300 S.E.2d 689, 697 (1983). Nevertheless, we will “reverse a trial court for failing to find a mitigating factor [ ] [where] the evidence offered in support of that factor is bothuncontradicted andmanifestly credible.” State v. Mabry, 217 N.C.App. 465, 471, 720 S.E.2d 697, 702 (2011) (internal marks omitted) (emphasis added). Our Supreme Court has held that “the sentencing judge has a duty to find a statutory mitigating factor when the evidence in support of a factor is uncontradicted, substantial and manifestly credible.” State v. Spears, 314 N.C. 319, 321, 333 S.E.2d 242, 244 (1985) (emphasis added).

We agree that Defendant's evidence of his positive employment history was substantial and essentially uncontradicted. However, we do not believe that this evidence was manifestlycredible. Accordingly, we hold that the trial court did not err in failing to find a factor in mitigation based on it.

To establish that evidence of a mitigating factor is manifestly credible, a defendant “must demonstrate that the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn [.]” State v. Murphy, 152 N.C.App. 335, 345, 567 S.E.2d 442, 449, disc. review denied,356 N.C. 442, 573 S.E.2d 161 (2002). In Mabry,concerned that the defendant's evidence did not indicate whether her employment history was positive,and troubled more generally by the lack of detail provided by such evidence, we rejected the defendant's argument that the evidence of her positive employment history was manifestly credible. 217 N.C.App. at 474, 720 S.E.2d at 704. Specifically, we observed that the evidence “d[id] not necessarily establish continuous employment, the numbers of hours [the] defendant was working, or what she was paid.” Id.

Defendant's evidence in the present case consisted of a memorandum prepared by an intern with the public defender's office relating a former supervisor's description of him as a “very good employee” who could be relied upon to perform tasks with “accuracy and efficiency,” as well as two letters from prison officials documenting his work in food and janitorial services while incarcerated. Both letters from prison officials indicate that Defendant has refrained from committing infractions during his incarceration.

Unlike the evidence in Mabry,this evidence does at least indicatethat Defendant had a positive work history. See id.However, we do not believe this evidence “so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn and [ ][its] credibility ... is manifest as a matter of law.” Murphy, 152 N.C.App. at 345, 567 S.E.2d at 449. The trial judge may well have had reservations about the credibility of the memorandum relating the former supervisor's description of Defendant's performance as an employee. Furthermore, other than generally praising Defendant's job performance, the description in the memorandum contains no details about his job duties or his pay. Similarly, the letters from prison officials were sparse in their description of Defendant's performance, and did not describe his working hours or job duties. We believe that this evidence permits the inference that Defendant had “positive employment history or [ ] gainful[ ] employ[ment]” within the meaning of N.C. Gen.Stat. § 15A–1340.16(e)(19), but did not “so clearly establish[ ] the fact in issue that no reasonable inferences to the contrary [could] be drawn[.]” See id.at 345, 567 S.E.2d at 449. Accordingly, this argument is overruled.

C. Cost Assessment

Defendant finally contends that the trial court erred in its assessment of costs against him, applying an incorrect jail fee to an incorrect number of days. Although the number of days to which the jail fee was applicable is not apparent from our review of the record, it is apparent that, as the State concedes, the number of days to which the trial court applied the jail fee was incorrect, and the court applied the incorrect fee to at least some of those days. Accordingly, we vacate the portion of the judgment assessing costs against Defendant.

N.C. Gen.Stat. § 7A–304 (2009) presumes—but does not mandate—that court costs will be assessed against a convicted defendant who receives an active sentence. State v. Patterson,––– N.C.App. ––––, ––––, 735 S.E.2d 602, 604 (2012). The statute authorizes trial courts to require a convicted defendant to pay costs, including jail fees, “as provided by law[.]” N.C. Gen.Stat. § 7A–304(c) (2009). N.C. Gen.Stat. § 7A–313, in turn, sets out the jail fee applicable to each day of confinement. Id.§ 7A–313. Prior to 1 August 2011, the daily jail fee was $5.00. N.C. Gen.Stat. § 7A–313 (2009). The rate doubled on 1 August 2011, and is currently $10 per day. See2011 N.C. Sess. Laws 145 § 31.26(e).

In the present case, the trial court based its $17,674.50 assessment of costs on a $10.00 daily rate and 1,734 days of pretrial confinement. However, as the State concedes, Defendant was “held by the Department of Corrections at the Alexander and Lumberton facilities for some (unknown) time [during that period].” Thus, it is unclear from the record how many days Defendant was confined in Guilford County Jail, or of those days, how many were on or after 1 August 2011 and thus subject to the $10.00 daily rate and how many were prior to that date and thus subject to the $5.00 daily rate. On remand, if the trial court again elects to assess costs against Defendant, the court must comply with N.C. Gen.Stat. § 7A–313, determining the number of days to which the $5.00 rate is applicable, if any, and the number to which the $10.00 rate is applicable, if any.

III. Conclusion

For the reasons stated herein, we affirm Defendant's conviction for second-degree murder. We reverse the trial court's determination of Defendant's prior record level. We vacate the portion of the judgment assessing costs against Defendant. We remand the case for resentencing consistent with this opinion.

AFFIRMED IN PART and REVERSED IN PART and VACATED IN PART and REMANDED.

Judges BRYANT and DIETZ concur.

Report per Rule 30(e).

Opinion

Appeal by Defendant from judgment entered 6 December 2013 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 5 November 2014.