Opinion
No. COA10-756
Filed 1 March 2011 This case not for publication
Appeal by Defendant from judgment entered 22 January 2010 by Judge Calvin E. Murphy in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 February 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State. Paul F. Herzog, for Defendant.
Mecklenburg County Nos. 09 CRS 24362, 204182, 204183, 204186, 204187.
Defendant was found guilty of felonious breaking or entering of a motor vehicle, misdemeanor larceny, carrying a concealed weapon, misdemeanor possession of stolen goods, and attaining habitual felon status. The convictions were consolidated for judgment and Defendant was sentenced within the presumptive range to a single term of a minimum of 150 months and a maximum of 189 months. Where Defendant was convicted of misdemeanor larceny and possession of stolen goods, the trial court failed to arrest judgment on either misdemeanor larceny or possession of stolen goods, we remand. Where Defendant did not object to the State's presentation of his prior criminal record on the prior record level worksheet, we find no error.
On 24 January 2008 around 7:30 or 7:40 p.m., Sean Langley returned to his vehicle parked between Fifth Street and Church Street in downtown Charlotte. He observed that the right rear window of the vehicle was broken and that his laptop computer was missing from the vehicle. He called 911 and reported the incident. At approximately 7:50 p.m. on the same date, Dominic Hood observed a man looking into cars parked in a parking deck on Church Street near Trade Street in downtown Charlotte. Hood called the police. Hood directed the attention of the responding officers to the man, who was subsequently identified as Willie Sloan. An officer detained Defendant, who was carrying a bag containing a laptop computer and mail addressed to "Sean Langley." Another officer turned on the laptop computer and upon startup, the computer asked for the password of "Sean Langley." The officers searched Defendant and found a long knife, an ice pick, and a screwdriver in his pockets. Langley subsequently identified the bag and laptop as his missing property.
Defendant testified that he purchased the laptop computer from an unidentified man for the sum of $100.00.
Defendant presents two issues: (1) whether the trial court erred by failing to arrest judgment on either misdemeanor larceny or misdemeanor possession of stolen goods; and (2) whether the trial court erred in finding Defendant was a prior record level six based solely upon a prior record level worksheet as evidence.
As to the first issue, the law is settled that "though a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he may be convicted of only one of those offenses." State v. Perry, 305 N.C. 225, 236-37, 287 S.E.2d 810, 817 (1982). The State concedes that the court committed error by not arresting judgment on one of the convictions, but argues that remand for resentencing is not necessary because the court consolidated the misdemeanors into the felony and sentenced Defendant as a habitual felon. This Court, however, has repeatedly held that consolidation of the convictions does not cure the error and that remand for resentencing is required. See, e.g., State v. Hager, ___ N.C. App. ___, ___, 692 S.E.2d 404, 409 (2010); State v. Owens, 160 N.C. App. 494, 499, 586 S.E.2d 519, 523 (2003); State v. Barnett, 113 N.C. App. 69, 78, 437 S.E.2d 711, 717 (1993). Accordingly, we remand the matter to the trial court with instructions to vacate judgment on either the conviction of misdemeanor larceny or misdemeanor possession of stolen goods and to enter judgment such that both convictions are not included in the list of offenses for which Defendant is sentenced.
As to the second issue, "[t]he 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) (2009). A worksheet "purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions." State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002). Satisfactory proof may be by "(1) [s]tipulation of the parties[;] (2) [a]n 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[;] or (4) [a]ny other method found by the court to be reliable." N.C. Gen. Stat. § 15A-1340.14(f). An affirmative statement is not required to constitute a stipulation, "and silence may be deemed assent in some circumstances, particularly if the defendant had an opportunity to object, yet failed to do so." State v. Hurley, 180 N.C. App. 680, 684, 637 S.E.2d 919, 923 (2006).
The prior record level worksheet in the case sub judice lists two pages of prior convictions dating back to 1984 and aggregating to at least 35 prior record level points. The floor amount of points for prior record level six, which is the highest possible prior record level, is 19 points. See N.C. Gen. Stat. § 15A-1340.14(c).
In Hurley, the prosecutor noted that Defendant had numerous convictions and asked the court to impose a sentence at the maximum of the presumptive range for the particular prior record level and class of offense. When asked by the court to respond, Defendant's counsel requested the court to grant work release for whatever sentence the court imposed. This Court held that counsel's conduct amounted to a stipulation as to the Defendant's prior record level.
Here, in arguing a motion to dismiss the habitual felon indictment, defense counsel noted that under the North Carolina felony punishment chart Defendant would be classified as a record level six and could be sentenced up to 168 months at the top of the presumptive range. Moreover, the following colloquy occurred at sentencing:
THE COURT: Very well. Are we prepared for sentencing?
"MS. PRICE: Yes, Your Honor.
THE COURT: Madam D. A., I'll hear from you.
"MS. PRICE: Your Honor, the defendant's [] prior record level six for sentencing purposes, both for the underlying and habitual sentencing. The defendant is a career criminal. The only significant break in his convictions are [sic] when he's in custody. In 1995 he was convicted and served an habitual felon sentence. He was released in 2002. That's exactly where his record picks up again in 2003, 2004, 2006, 2007, 2008. The record is too lengthy for me to list for you and the jury. I will hand up the worksheet for Your Honor.
Based on his record and the fact that he has been in this position before, we are asking for the top of the presumptive range of a minimum of 168 months.
THE COURT: All right. Anything further from the State?
"MS. PRICE: No, Your Honor.
THE COURT: Mr. Frazier.
"MR. FRAZIER: Thank you, Your Honor. On behalf of Willie Bell Sloan I would inform the Court that Mr. Sloan is 53 years old. He is divorced, he does have a son 26 years old. You mentioned the fact that he had to postpone his wedding plans.
He does take care of his fiancé and six of her children, as well as two other children. He did get as far as the tenth grade in the Charlotte-Mecklenburg school system and he has obtained his GED since then.
Your Honor, you did hear testimony from Mr. Sloan that he has a very positive employment history. He was gainfully employed at the time of his arrest in this case. We ask the Court to consider mitigating factor number 19.
And the Court is aware of our motions to dismiss the habitual that I've already filed. I ask the Court to consider his age; he's 53 years old, Your Honor.
I'd ask the Court to consider a sentence at the bottom of the presumptive range which would be 135 months. That's still eleven years and that would make him 64, 65 years old when and if he does make it that far. A sentence of 168 months, Your Honor, might be tantamount to a death sentence.
And in this case we ask you take into consideration the fact it was a BE a motor vehicle, he's ashamed of that, he's
embarrassed by that. And the property that was taken was recovered. At this point in time he would apologize to the Court for his actions, and we're just asking the Court for the bottom of the presumptive.
THE COURT: All right, if you'd have him stand, please. Mr. Sloan, you're not required to say anything, but if there's anything you would like to say on your own behalf I'll be happy to hear from you.
THE DEFENDANT: I just want to say that I apologize. I thank the jury, I thank the D. A., everyone affiliated with this case. I just know I'll be away for a while, so if there's anyway possible I could get the bottom of the presumptive range with the mitigating factor.
As in Hurley, Defendant's counsel did not object to the prosecutor's summarization of Defendant's record and instead argued for leniency. Finally, during direct examination, Defendant was asked about his prior criminal record during the ten years immediately preceding the trial and Defendant candidly admitted that he had committed the offenses that both his counsel and the prosecutor on cross examination identified.
We hold the actions and arguments of Defendant's counsel and Defendant constituted a stipulation to the prior convictions listed in the prior record worksheet. We overrule this contention.
Remanded for resentencing in part; no error in part.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).