Opinion
No. COA10-1050
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgments entered 29 April 2010 by Judge A. Moses Massey in Wilkes County Superior Court. Heard in the Court of Appeals 25 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State. William D. Auman for defendant-appellant.
Wilkes County File No. 07 CRS 50460, 08 CRS 1470-75, 08 CRS 108.
Defendant Gene Wayne Haymond appeals from judgments entered by the trial court on remand from a prior decision of this Court sentencing him to three consecutive terms of a minimum of 96 months and a maximum of 125 months imprisonment in the custody of the North Carolina Department of Correction based upon jury verdicts convicting him of felonious breaking or entering, felonious possession of stolen property, possession of a firearm by a felon, and having attained the status of an habitual felon. On appeal, Defendant contends that the trial court impermissibly assigned him two prior record points based upon a Delaware third degree burglary conviction in calculating his prior record level. After careful consideration of Defendant's challenge to the trial court's judgments in light of the record and the applicable law, we conclude that the trial court's resentencing judgments should be affirmed.
I. Factual Background
On 13 August 2008, a jury returned verdicts convicting Defendant of felonious breaking or entering and felonious larceny in File No. 7 CRS 881, felonious possession of stolen property in File No. 08 CRS 1474, felonious breaking or entering and felonious larceny in File No. 07 CRS 886, felonious possession of stolen property in File No. 08 CRS 1470, felonious breaking or entering and felonious larceny in File 07 CRS 50460, felonious possession of stolen property in File No. 08 CRS 1472, felonious breaking or entering and felonious larceny in File No. 07 CRS 50466, felonious possession of stolen property in File No. 08 CRS 1475, felonious possession of stolen property in File No. 08 CRS 1471, possession of a firearm by a felon in File No. 8 CRS 1473, and of having attained the status of an habitual felon. Based upon the jury's verdicts, Judge Henry E. Frye, Jr., arrested judgment in the felonious larceny cases and sentenced Defendant to ten consecutive terms of a minimum of 116 months and a maximum of 149 months imprisonment in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgments.
The trial court dismissed a safecracking charge that had been lodged against Defendant in File No. 08 CRS 50466 for lack of sufficient evidence at the close of the State's case.
By means of an opinion filed 6 April 2010, this Court reversed Defendant's breaking or entering convictions in File Nos. 07 CRS 881, 886, and 50466 on the grounds that the evidence presented to the trial court did not suffice to support those convictions. In addition, we remanded Defendant's remaining convictions, which were otherwise upheld on appeal, for a new sentencing hearing on the grounds that the record tended to show that the trial court improperly considered Defendant's decision to reject a proffered plea offer and to exercise his right to trial by jury instead in entering judgment. State v. Haymond, ___ N.C. App. ___, 691 S.E.2d 108, disc. review denied, ___ N.C. ___, 704 S.E.2d 275 (2010).
The trial court held the required new sentencing hearing on 29 April 2010. At that proceeding, the State submitted a prior record level worksheet tending to show that Defendant had six prior record points and should be sentenced as a Level III offender. Defendant or his counsel signed a stipulation to the accuracy of the information contained in this worksheet. The prior record level calculation set out in this worksheet rested upon two North Carolina class H felony convictions and one Delaware conviction for "(F) Burglary 3rd," which the State treated as a conviction for a Class I felony for sentencing purposes. At the resentencing hearing, Defendant's trial counsel stated that "[w]e do not dispute the burglary in the third [degree] on the Delaware case" and that "we would stipulate there are six record level points and prior record level three for sentencing purposes."
The signature in the stipulation block on the prior record level worksheet is not clear. In addition, the prior record worksheet does not show the printed name of the signatory. However, since the block in which Defendant or his counsel could stipulate to the information contained in the prior record level worksheet is signed and since Defendant has not claimed that the signature appearing at the relevant location on the prior record level worksheet is that of anyone other than his trial counsel or himself, we conclude that either Defendant or his trial counsel stipulated to the information contained in the prior record level worksheet.
After hearing testimony from Detective David Carson concerning the nature of Defendant's crimes and the value of the property taken and after hearing the arguments of counsel, the trial court found that Defendant had six prior record points and should be sentenced as a Level III offender. Based upon those determinations and the prior jury verdict finding that Defendant had attained the status of an habitual felon, the trial court entered judgments providing that Defendant be imprisoned for a minimum term of 96 months and a maximum term of 125 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for possession of a firearm by a convicted felon in File No. 08 CRS 1473; to a consecutive term of a minimum of 96 months and a maximum term of 125 months in the custody of the North Carolina Department of Correction based upon his convictions for felonious breaking or entering in File No. 07 CRS 50460 and possession of stolen property in File No. 08 CRS 1472, which the trial court consolidated for judgment; and to a consecutive term of a minimum term of 96 months and a maximum term of 125 months imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for felonious possession of stolen property in File Nos. O8 CRS 1470, 1471, 1474, and 1475, all of which the trial court consolidated for judgment. Defendant noted an appeal to this Court from the trial court's judgments on resentencing.
II. Legal Analysis
On appeal, Defendant contends that the trial court improperly included two prior record points stemming from his Delaware third degree burglary conviction in its prior record level calculation on the grounds that his stipulation did not suffice to establish that this conviction was for a felony offense. In essence, Defendant contends that the extent to which third degree burglary is a felony or a misdemeanor under Delaware law is a question of law which cannot properly be the subject of a stipulation between the parties. We disagree.
As a general proposition, "[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). Each class I felony conviction is assigned two prior record level points. N.C. Gen. Stat. § 15A-1340.14 (b)(4). A defendant with "[a]t least 6, but not more than 9 points" is deemed a Level III offender for sentencing purposes. N.C. Gen. Stat. § 15A-1340.14(c)(3).
"The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." N.C. Gen. Stat. § 15A-1340.14(f). A stipulation by the defendant is one of the means by which the State may satisfy its burden of proof. Id. "A sentencing worksheet coupled with statements by counsel may constitute a stipulation to the existence of the prior convictions listed therein." State v. Hinton, 196 N.C. App. 750, 751, 675 S.E.2d 672, 673 (2009).
The method that must be utilized in assigning prior record level points to out-of-state convictions is well-established:
Except as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony . . . If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points.
N.C. Gen. Stat. § 15A-1340.14(e). Contrary to the argument on which Defendant bases his challenge to the trial court's judgments, a trial judge "may accept a stipulation that the defendant in question 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." State v. Bohler, 198 N.C. App. 631, 638, 681 S.E.2d 801, 806 (2009), disc. review denied, N.C., 691 S.E.2d 414 (2010).
In this case, the trial court properly relied upon a combination of the prior record level worksheet proffered by the State and Defendant's oral and written stipulations to the accuracy of the information contained in that document for the purpose of determining that the Delaware third degree burglary conviction is a felony under Delaware law. Defendant stipulated, both in writing and orally in open court, to the contents of the prior record level worksheet, which classified his Delaware third degree burglary conviction as a felony.
Speaking through his trial counsel, Defendant stated that he agreed with the State's proposed treatment of the Delaware conviction. Accordingly, given the absence of any indication that Defendant's Delaware third degree burglary conviction was for a misdemeanor rather than a felony, the trial court properly treated this conviction as a class I felony, the default classification for an out-of-state felony pursuant to N.C. Gen. Stat. § 15A-1340.14(e), in the course of determining the sentence which should be imposed upon Defendant. The trial court further properly assigned two prior record level points to this Delaware third degree burglary conviction in ascertaining that Defendant had six prior record level points and should be sentenced as a Level III offender. See N.C. Gen. Stat. § 15A-1340.14(b) and (c). As a result, we hold that the trial court properly calculated Defendant's prior record level and that the trial court's resentencing judgments should be affirmed.
AFFIRMED.
Judges STEPHENS and BEASLEY concur.
Reported per Rule 30(e).