Opinion
No. COA15-771
05-03-2016
STATE OF NORTH CAROLINA v. JAMES CHRISTOPHER KETCHUM
Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for the State. Kimberly P. Hoppin 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Brunswick County, Nos. 14 CRS 2294-95, 3296; 14 CRS 50074, 50091 Appeal by defendant from judgments entered 17 December 2014 by Judge Gale M. Adams in Brunswick County Superior Court. Heard in the Court of Appeals 15 December 2015. Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for the State. Kimberly P. Hoppin for defendant-appellant. McCULLOUGH, Judge.
James Christopher Ketchum ("defendant") appeals from his convictions of possession of a firearm by a felon, first degree burglary, robbery with a dangerous weapon, first degree murder based on malice, premeditation, and deliberation and the felony murder rule, and for attaining habitual felon status. For the reasons set forth herein, we reverse and remand.
I. Background
On 21 July 2014, defendant was indicted for possession of a firearm by a felon in violation of N.C. Gen. Stat. § 14-415.1. On 27 October 2014, defendant was indicted for first degree burglary in violation of N.C. Gen. Stat. § 14-51. On 7 April 2014, defendant was indicted for robbery with a dangerous weapon in violation of N.C. Gen. Stat. § 14-87, assault on a female in violation of N.C. Gen. Stat. § 14-33(c)(2), and first degree murder in violation of N.C. Gen. Stat. § 14-17. The robbery with a dangerous weapon and assault on a female charges had an alleged offense date of 4 January 2014. The remaining charges had an alleged offense date of 6 January 2014.
On 21 July 2014, defendant was indicted for attaining habitual felon status.
On 17 October 2014, defendant filed a motion to suppress which was denied by an order entered 22 December 2014.
Defendant's trial came on for hearing at the 1 December 2014 criminal session of Brunswick County Superior Court, the Honorable Gale M. Adams, presiding. The evidence at trial tended to show the following: Christy Hinnant ("Hinnant") testified that she was the manager of the "Pop Shoppe," a gas station and convenience store located in Leland, North Carolina. On 4 January 2014, she was working on duty as a manager and as she was making preparations to close the store that evening, Hinnant noticed that "someone came in with a hoodie." Hinnant recognized the person as a regular customer of the store and identified defendant as that person in court. Defendant stepped towards Hinnant behind the counter and a scuffle occurred. Hinnant lost her footing and thereafter saw another man across the counter, holding a shotgun to her head. The other man grabbed a bag of money, taking approximately $300 to $315. The man and defendant then left the store. Hinnant told police officers that she knew defendant lived with Kristen Burdette and Jason Anderson in a nearby trailer park.
Kristen Burdette ("Burdette") testified that she and James Anderson ("Anderson") began living together in 2010 and moved into a mobile home in Leland in 2013. Defendant and Anderson were close friends and defendant moved in with them "for about a week before everything happened[.]" On the night of 4 January 2014, Burdette became aware that something was occurring at the Pop Shoppe because she saw "sirens and the lights through our window of our trailer."
On 5 January 2014, Burdette and Anderson went to meet defendant at the Wal-Mart on Market Street in Wilmington, North Carolina. Once they entered the Wal-Mart, Burdette and Anderson met with defendant and Calron Williams ("Williams"). Defendant asked Burdette "to walk away because they didn't want to talk about anything with me around." Burdette walked an aisle over and overheard defendant and Williams "bragging" about robbing the Pop Shoppe. Williams was laughing at defendant, "about how the cashier there had beat him up and how they only got away with just a little bit of money from doing it."
Once Burdette and Anderson returned to Leland, they "talked about the situation . . . about how [defendant] and them had robbed it and it wasn't right and things like that, and [Anderson] agreed that it wasn't right[.]" Burdette told Anderson that she was going to go to the police and Anderson told her that "it was the right thing to do, just to be careful." Burdette went over to the Pop Shoppe and spoke with Hinnant. She told Hinnant that defendant and Williams committed the robbery and told Hinnant to call the police. Once officers arrived, Burdette told the police all that she knew.
Burdette returned home and saw Kenneth Simpson ("Simpson") and Anderson in the living room. Simpson spent the night on the couch in the living room. Around 10:00 p.m. on the night of 5 January 2014, Burdette received a text message from defendant on a phone she shared with Anderson. Burdette could not recall the content of the message but testified that she responded that Anderson was asleep and "[w]e'll get up with you tomorrow." Anderson was already in bed when Burdette went to bed around 11:30 p.m.
Burdette testified that the next thing she remembered that evening was that she heard a "bunch of banging and yelling" and somebody was yelling, '[o]pen up, sheriff's department[.]" Anderson jumped out of bed and went to the living room door with Burdette close behind. Anderson opened the door and was shot, Burdette "heard a loud pop" and saw "the blood splatter go everywhere." Anderson was shot in the upper part of his body and the shot knocked him to the ground. Burdette then saw defendant walk inside, step over the top of Anderson, and shoot Anderson a second time. Defendant was wearing blue jeans and a black hoodie. Defendant cocked his gun, said "Hey, Kristen" twice, and pointed the gun towards Burdette. Burdette ran out the back door and called police.
Simpson testified that he fell asleep on the living room couch and woke up to "banging on the door, boom, boom, boom, boom, boom, 'sheriff's department.' " After two or three knocks, Simpson saw Anderson come from his room and open the door. As soon as the door opened, a gunshot went off and Simpson saw Anderson knocked down to the floor. Simpson could tell Anderson had been shot because Anderson had a "hole in the middle of his chest, you know, the blood spot started getting bigger, and he was gasping for air." The person who shot Anderson stepped inside with a rifle in his hand, stood over Anderson, and stated, "[w]ho did you tell?" and "[w]hat did you say?" Simpson identified the shooter as a white man, wearing a dark hoodie. The shooter asked Simpson, "[w]hat the F you see?" and told Simpson "[g]et the F out of here now. Go, go, go." The shooter backed out of the door and Simpson ran out of the trailer and towards the street. As Simpson was running away, he heard a second gun shot.
William West ("West") testified that he lived in the same trailer park as Anderson and Burdette in January 2014. He had previously met defendant through Anderson. On the evening of 5 January 2014 into the morning on 6 January 2014, West was watching a movie in his trailer when he heard a beating on a door and then a gunshot. He looked outside of his window, saw nothing, sat back down in his living room, and then heard another gunshot. West went to the window again and saw defendant running around the corner, holding a black shotgun. West waited a few minutes and then walked over to Anderson and Burdette's trailer. West saw Anderson lying on his back, with a shotgun injury to his chest.
Kenneth Russ ("Russ"), West's nephew, testified consistently with West's account of the night's events. Russ had previously met Anderson, Burdette, and defendant. Russ identified defendant as the man who was running around the corner that night with a shotgun in his hand.
Doctor John Almeida ("Dr. Almeida"), an expert in the field of forensic pathology, testified that he performed an autopsy on Anderson on 7 January 2014. Dr. Almeida testified that Anderson's cause of death was gunshot wounds to the chest.
Detective Nicholas Giacobbe with the Leland Police Department testified that he recovered two shotgun shells at Anderson's residence. One spent shell was recovered to the right of the front steps of the trailer. The other spent shell was recovered from inside the trailer.
Detective Virginia Blake with the New Hanover County Sheriff's Office testified that she processed a blue Saturn that defendant was riding in when he was arrested. She discovered a black 12-gauge shotgun, wrapped in a blanket, between the front and back seat.
On 8 December 2014, a jury found defendant guilty of the following charges: possession of a firearm by a felon, first degree burglary, robbery with a dangerous weapon, and first degree murder based on malice, premeditation and deliberation and under the first degree felony murder rule.
The prosecutor and defense counsel stipulated to defendant's prior record level of VI. Defendant was sentenced to: a term of 22 to 36 months for possession of firearm by a felon; a term of 127 to 165 months for first degree burglary, enhanced due to defendant attaining habitual felon status; to a term of 127 to 165 months for robbery with a dangerous weapon, also enhanced based on defendant attaining habitual felon status; and to a term of life imprisonment without parole for first degree murder. All the sentences were to run concurrently.
Defendant appeals.
II. Discussion
On appeal, defendant argues that the trial court erred by (A) sentencing defendant as an habitual felon for his first degree burglary and robbery with a dangerous weapon convictions where the habitual felon charge was not submitted to the jury and the trial court failed to conduct an inquiry to establish a record of a guilty plea and (B) sentencing defendant as a prior record level VI. We address each argument in turn.
A. Habitual Felon Status
Defendant argues that the trial court erred by sentencing defendant as an habitual felon for his first degree burglary and robbery with a dangerous weapon convictions where the habitual felon charge was not submitted to the jury and the trial court failed to conduct an inquiry to establish a record of a guilty plea. We agree.
Defendant cites to our holding in State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001), in support of his argument. In Gilmore, our Court stated that:
whether a defendant is an habitual felon "shall be as if the issue of habitual felon were a principal charge." N.C.G.S. § 14-7.5 (1999). Under section 14-7.5, the issue of whether a defendant is an habitual felon is submitted to the jury. Id. A defendant may, in the alternative, enter a guilty plea to the charge of being an habitual felon. See State v. Williams, 133 N.C. App. 326, 330, 515 S.E.2d 80, 83 (1999).Id. at 471, 542 S.E.2d at 698-99. The Gilmore defendant had stipulated to the three prior convictions alleged by the State. Id. at 471, 542 S.E.2d at 699. However, the issue of whether the defendant was an habitual felon was not submitted to the jury and the defendant did not plead guilty to being an habitual felon. Id. Our Court held that "[a]lthough [the d]efendant did stipulate to his habitual felon status, such stipulation, in the absence of an inquiry by the trial court to establish a record of a guilty plea, is not tantamount to a guilty plea." Id. As such, our Court reversed and remanded the defendant's habitual felon conviction.
We find our holding in Gilmore to be controlling in the case before us. Here, defendant waived a formal reading of the habitual felon indictment. Thereafter, he stipulated at his sentencing hearing to the three predicate felonies alleged by the State in the habitual felon indictment. The issue of whether defendant was an habitual felon was not submitted to the jury, nor did the trial court establish a record of a guilty plea. Accordingly, defendant's habitual felon conviction is reversed and we remand for a new hearing to determine defendant's habitual felon status.
B. Prior Record Level Calculation
In his next argument on appeal, defendant contends that the trial court improperly calculated his prior record level. Defendant asserts that the calculation of his prior record level points should have resulted in 12 total points, making him a prior record level IV instead of a prior record level VI. We agree.
In the present case, defense counsel stipulated to the prior convictions listed on the structured sentencing worksheet. However, "[t]he determination of an offender's prior record level is a conclusion of law that is subject to de novo review on appeal." State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009). It is well established that parties cannot stipulate to matters of law. State v. Moncree, 188 N.C. App. 221, 234, 655 S.E.2d 464, 472 (2008). Therefore, defense counsel's stipulation has no bearing on whether we find the calculation of defendant's prior record points to be valid.
Defendant does not challenge the 4 prior record level points assessed for 4 prior Class A1 or 1 misdemeanor convictions. However, defendant challenges the prior record level points assessed for his felony convictions. Here, the trial court calculated 6 prior record level points for 1 prior felony Class B2 or C or D conviction; 4 prior record level points for 2 prior felony Class E or F or G convictions; and 4 prior record level points for 2 prior felony Class H or I convictions. This resulted in a calculation of 18 total prior record level points, corresponding to a prior record level of VI.
First, defendant argues that the trial court erred in using his prior conviction of "OBTAIN PROPERTY FALSE PRETENSE", file number 12 CRS 052752 with the conviction date of 15 May 2013, a Class H conviction, because it was used as one of the predicate felonies used to establish defendant's habitual felon status. N.C. Gen. Stat. § 14-7.6 provides that, "[i]n determining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used." N.C. Gen. Stat. § 14-7.6 (2015). The 15 May 2013 conviction in case number 12 CRS 052752 conviction was used as a predicate felony in defendant's indictment for attaining habitual felon status. Therefore, we hold that the trial court erred by using the 12 CRS 052752 conviction as one of the prior felony Class H convictions.
The prior record level worksheet indicates that the conviction obtained in case number 12 CRS 052752 was dated 15 May 2012. However, this seems to be a clerical error. The correct year of this conviction was 2013.
Next, defendant argues that the trial court erred by assessing 4 prior record level points for 1 prior felony Class E or F or G conviction. N.C. Gen. Stat. § 15A-1340.14(d), entitled "Multiple Prior Convictions Obtained in One Court Week," provides as follows:
For purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used. If an offender is convicted of more than one offense in a single session of district court, only one of the convictions is used.N.C. Gen. Stat. § 15A-1340.14(d) (2015). In the case before us, for conviction date 3 June 1991, the prior record level worksheet set out 8 separate convictions. One of those convictions, "COMMON LAW ROBBERY" in case number 90 CRS 8925, served as a predicate felony for defendant's habitual felon indictment. Therefore, as stated above, it could not be used in determining defendant's prior record level pursuant to N.C. Gen. Stat. § 14-7.6. Consequently, the conviction on 3 June 1991 with the highest point total would be the conviction for "AWDWIKISI" in case number 90 CRS 8922, a Class C felony. This Class C felony would account for the 6 prior record level points assessed for 1 prior felony Class B2 or C or D conviction listed on the prior record level worksheet.
The remaining convictions listed on the prior record level worksheet that we have not yet discussed were for "COMMON LAW ROBBERY" in case number 86 CRS 029174 with a conviction date of 31 March 1987 and "BREAKING AND OR ENTERING (F)" in case number 86 CRS 020200 with a conviction date of 31 October 1986. The conviction in 86 CRS 029174 was the conviction used as a predicate felony in defendant's habitual felon indictment and thus, it could not have been used in determining defendant's prior record level pursuant to N.C. Gen. Stat. § 14-7.6. This left the conviction in 86 CRS 020200, a Class H felony, which corresponded to 2 prior record level points.
After carefully reviewing the record, defendant's prior record level points should have been calculated as follows: 6 points for 1 prior felony Class B2 or C or D conviction; 2 points for 1 prior felony Class H or I conviction; and 4 points for 4 prior Class A1 or 1 misdemeanor convictions. Defendant's total points should have totaled 12 and, accordingly, defendant should have been sentenced at a prior record level IV instead of at a prior record level VI. Based on the foregoing, we remand for resentencing.
REVERSED AND REMANDED.
Judges BRYANT and GEER concur.
Report per Rule 30(e).