Opinion
No. COA15-842
05-03-2016
STATE OF NORTH CAROLINA v. ABDUL ARRAHMAN ISMAEL, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Kimberley A. D'Arruda, for the State. Richard J. Costanza for Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Wake County, Nos. 14 CRS 213010, 214174 Appeal by Defendant from judgments entered 26 March 2015 by Judge Kendra D. Hill in Superior Court, Wake County. Heard in the Court of Appeals 22 February 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Kimberley A. D'Arruda, for the State. Richard J. Costanza for Defendant-Appellant. McGEE, Chief Judge.
Abdul Arrahman Ismael ("Defendant") was found guilty of felony stalking, misdemeanor breaking or entering, and violating a domestic violence protective order by jury verdict entered 26 March 2015. During the sentencing phase of the trial, Defendant's counsel stipulated that Defendant was to be sentenced at a prior record level II, and that Defendant was on probation at the time he committed the above offenses:
[A]nd I know we haven't talked about the sentencing level, but I will let Your Honor know there has been a stipulation signed with a sentencing worksheet.
. . . .
And Your Honor, you can see that there is a point that is going to make him a Level 2, that in fact if I remember right he was on probation at the time. I think that gets us to a Level 2.
The trial court and district attorney then had the following exchange, to which defense counsel assented:
THE COURT: For the record, the State and defense have stipulated to a prior record Level 2 with two points is that correct?
[PROSECUTOR]: That's correct, Your Honor.
THE COURT: As to the second point for the probationary sentence, can you just, for the record, . . . state that additional point or the basis?
[PROSECUTOR]: I can, Your Honor. If . . . I may approach and retrieve the worksheet?
THE COURT: Yes, sir.
[PROSECUTOR]: Your Honor, alleged on this worksheet that has been provided to defense counsel earlier on, one of the points is that the offense that was tried in this courtroom, at the time of that offense, [Defendant] was on probation in Wake County in File Number 13 CR 219798. He was on probation at that time for convictions that occurred in Wake County on February 21, 2014, in 13 CR 219798. He was convicted of assault on a female in 13 CR 227410.
He was convicted of domestic violence protective order violation again on February 21 of 2014. Offense date for this event was June 7 of 2014. If I may approach?
THE COURT: Yes. Thank you.
And for misdemeanor convictions level, the State and defense also stipulate to a prior conviction level with two prior convictions, is that correct?
[PROSECUTOR]: Yes, Ma'am.
THE COURT: That is one for the [2014] matters, assault on a female, and one for the resist, delay, obstruct for misdemeanor purposes?
[DEFENSE COUNSEL]: That's correct, Your Honor.
The prior record level worksheet showed that one prior record level point was assessed because Defendant had a prior conviction for a "Class A1 or 1 Misdemeanor," and that an additional point was assessed because Defendant was "on supervised or unsupervised probation" at the time he committed the felony stalking offense. Because Defendant had two prior record level points, he was determined to have a felony prior record level of II. If Defendant had only been assessed one prior record level point, he would have been sentenced at a felony prior record level I. Because Defendant was assessed two points, he was sentenced at a prior record level II, and received an active term of eight to nineteen months for the felony stalking charge. Defendant appeals.
Defendant was also sentenced to seventy-five days and forty-five days for the domestic violence protective order violation and the breaking or entering charges, respectively, but these sentences were not appealed.
In Defendant's sole argument on appeal, he contends that the trial court erred in assigning him "one sentencing point for being on probation when the offense of felony stalking" was committed, because of "the State's failure to comply with N.C. Gen. Stat. § 15A-1340.16(a6)[.]" We agree.
Defendant argues that the trial court erred in finding one prior record level point pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(7), which allows the trial court to assign one prior record level point "[i]f the offense was committed while the offender was on supervised or unsupervised probation[.]" N.C. Gen. Stat. § 15A-1340.14(b)(7) (2015). Specifically, Defendant contends that the trial court erred in factoring one point pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(7) because the State failed to provide the notice required by N.C. Gen. Stat. § 15A-1340.16(a6), which states in relevant part:
The State must provide a defendant with written notice of its intent to prove the existence of . . . a prior record level point under G.S. 15A-1340.14(b)(7) at least 30 days before trial or the entry of a guilty or no contest plea. A defendant may waive the right to receive such notice.N.C. Gen. Stat. § 15A-1340.16(a6) (2015).
This Court was faced with a similar factual situation concerning notice for prior record points in State v. Snelling, 231 N.C. App. 676, 752 S.E.2d 739 (2014):
At sentencing, the parties stipulated that defendant had 6 prior record level points and was thus a PRL [prior record
level] III. It is also undisputed that 1 of the 6 points was assigned to defendant because he was on probation (the probation point) at the time these offenses were committed.Id., at 678, 752 S.E.2d at 742. Even though the defendant in Snelling, like Defendant in the present case, stipulated to the number of prior record level points and also stipulated to his prior record level, this Court in Snelling held:
The statute [N.C. Gen. Stat. § 15A-1340.16(a6)] is clear that unless defendant waives the right to such notice, the State must provide defendant with advanced written notice of its intent to establish . . . a probation point pursuant to N.C. Gen. Stat. 15A-1340.14(b)(7). . . . .Id. at 682, 752 S.E.2d at 744 (citations omitted) (emphasis added). In effect, this Court in Snelling held that failure to give the notice mandated by N.C. Gen. Stat. § 15A-1340.16(a6) is prejudicial if the relevant prior record level point or points cause the defendant to be sentenced under a higher prior record level; and that stipulation to a prior record level point pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(7), along with stipulation to the prior record level, does not serve to waive a defendant's right to receive notice pursuant to N.C. Gen. Stat. § 15A-1340.16(a6). In the present case, we are bound by Snelling to hold that Defendant's stipulations did not serve as a waiver of his right to notice pursuant to N.C. Gen. Stat. § 15A-1340.16(a6) and, therefore, it was error for Defendant to be assessed a prior record level point based upon N.C. Gen. Stat. 15A-1340.14(b)(7). Because this point served to raise Defendant's prior record level from a I to a II, Defendant suffered prejudice.
Here, the trial court never determined whether the statutory requirements of N.C. Gen. Stat. § 15A-1340.16(a6) were met. Additionally, there is no evidence in the record to show that the State provided sufficient notice of its intent to prove the probation point. Moreover, the record does not indicate that defendant waived his right to receive such notice. Thus, the trial court erred by including the probation point in its sentencing of defendant as a PRL III. This error was prejudicial because the probation point raised defendant's PRL from a PRL II to a PRL III.
We note, as referenced in the State's brief, that this Court has found a defendant's stipulation and lack of objection to constitute waiver of the right to the notice required by N.C. Gen. Stat. § 15A-1340.16(a6) in situations similar to the present case. See State v. Jones, ___ N.C. App. ___, 767 S.E.2d 151 (2014) (unpublished opinion); State v. Jones, ___ N.C. App. ___, 772 S.E.2d 14 (2015) (unpublished opinion). Jones and Jones, however, unlike Snelling, are unpublished opinions and, therefore, are without precedential value. Further, to the extent that Jones and Jones conflict with Snelling, an earlier opinion, Snelling controls. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("a panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court"). Because we are bound by our prior holding in Snelling, we vacate Defendant's sentence and remand to the trial court for resentencing at felony prior record level I.
VACATED AND REMANDED.
Judges STROUD and ZACHARY concur.
Report per Rule 30(e).