Opinion
No. COA11–1564.
2012-08-7
STATE of North Carolina v. Willie Duran ARMSTRONG, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Rufus C. Allen, for the State. James A. Hunt for defendant-appellant.
Appeal by defendant from judgment entered 7 September 2011 by Judge H. William Constangy in Catawba County Superior Court. Heard in the Court of Appeals 30 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Rufus C. Allen, for the State. James A. Hunt for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant Willie Duran Armstrong (“defendant”) appeals from judgments entered based on his Alford guilty pleas to two counts of possession of a controlled substance in a confinement facility and one count of possession of a Schedule II controlled substance. Defendant contends the trial court erred in sentencing him as a prior record level IV offender. We affirm the judgment entered.
The record is not conclusive as to whether the spelling of defendant's middle name is Duran or Durand. The spelling in this opinion reflects the trial court's spelling of the name on the Judgment and Commitment form.
On 7 September 2011, defendant pled guilty by Alford pleas to two counts of possession of a controlled substance in a confinement facility and one count of possession of a Schedule II controlled substance. The plea agreement provided that “[d]efendant shall receive an active sentence in the presumptive range of 9–11 months & all three convictions shall be consolidated into 1 judgment for sentencing.” At sentencing, the State tendered a prior record level worksheet which indicated that defendant was a level IV offender based upon nine prior record level points. The following exchange took place during sentencing:
THE COURT: [Defense Counsel], you stipulate your client's a Prior Record Level IV with 9 prior points for felony sentencing purposes?
[DEFENSE COUNSEL]: Yes, Your Honor, based on the worksheet, yes, Your Honor.
The trial court sentenced defendant to nine to eleven months imprisonment. Defendant appeals.
Defendant contends the trial court erred in classifying him as a prior record level IV offender. Defendant asserts the record shows only eight prior record level points supporting a prior record level III under N.C. Gen. Stat § 15A–1340.14(c). We do not agree.
Prior record level determination for felony sentencing is governed by N.C. Gen.Stat. § 15A–1340.14 (2011). Subsection (a) provides: “[t]he 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 in accordance with this section.” N.C. Gen.Stat. § 15A–1340.14(a). The number of prior record points for each class of felony and misdemeanor offense is specified in N.C. Gen.Stat. § 15A–1340.14(b), which provides in pertinent part:
(4) For each prior felony Class H or I conviction, 2 points.
(5) For each prior misdemeanor conviction as defined in this subsection, 1 point. For purposes of this subsection, misdemeanor is defined as any Class A1 and Class 1 nontraffic misdemeanor offense, impaired driving (G.S.20–138.1), impaired driving in a commercial vehicle (G.S.20–138.2), and misdemeanor death by vehicle (G.S.20–141.4(a2)), but not any other misdemeanor traffic offense under Chapter 20 of the General Statutes.
N.C. Gen.Stat. § 15A–1340.14 (b)(4) and (5).
The State bears the burden of proving a prior conviction by a preponderance of the evidence. N.C. Gen.Stat. § 15A–1340.14(f). Prior convictions may be proved by any one of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
Id. Stipulation as to the existence of a conviction is an issue of fact by which defendant is bound on appeal. State v. Fair, 205 N.C.App. 315, 318, 695 S.E.2d 514, 516 (2010). The assignment of a prior record level by the trial court is a conclusion of law which is reviewed de novo. State v. Fraley, 182 N.C.App. 683, 691, 643 S.E.2d 39, 44 (2007).
Here, the State tendered a signed prior record level worksheet. Defendant is correct that the sentencing worksheet used by the trial court indicates one Class H felony and only six Class A1 or Class 1 nontraffic misdemeanors, which results in eight prior record level points. However, the prior record level worksheet also shows a 1987 driving while impaired conviction which is a misdemeanor and is assigned a value of one point. SeeN.C. Gen.Stat. § 15A–1340.14 (b)(5). Therefore, the inclusion of the additional point from defendant's misdemeanor DWI conviction brings defendant's prior record level points to nine, establishing a prior record level IV.
Contrary to defendant's assertion, the State proved defendant's prior record level points by stipulation of the parties. The prior record level worksheet specifically states in Section III entitled “Stipulation” that both the prosecutor and defense counsel stipulate to the information regarding defendant's prior convictions in Section IV. The stipulation is signed by the prosecutor and defense counsel, and the worksheet itself is signed by the presiding judge. Further, defendant orally stipulated that he was a prior record level IV based upon the prior record level worksheet. Accordingly, defendant's arguments are without merit. We hold the trial court properly sentenced defendant as a prior record level IV offender.
Affirmed. Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).