Opinion
No. COA09-1482
Filed 1 February 2011 This case not for publication
Appeal by defendant from judgments entered 15 July 2009 by Judge Russell J. Lanier, Jr. in Sampson County Superior Court. Heard in the Court of Appeals 14 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General Larissa S. Williamson, for the State. William B. Gibson for defendant-appellant.
Sampson County Nos. 08 CRS 4646, 08 CRS 54331.
Defendant Jimmy Spearman appeals from his convictions of felony possession of a Schedule II controlled substance and misdemeanor possession of marijuana. Defendant's sole argument on appeal is that the State failed to prove his prior record levels for felony and misdemeanor sentencing. Based upon our review of the record, we hold that defendant's prior record level was established through stipulation and, therefore, the trial court did not err in its sentencing of defendant.
Facts
The State's evidence tended to show the following facts. During a search following a traffic stop of defendant on 13 December 2008, police officers found a bag containing an "off-white rock substance" under defendant's thigh, another "off-white rock substance" beside the driver's seat and center console, and "green, vegetable matter" beside, behind, and underneath the passenger seat. The vegetable matter was identified as marijuana, while the "off-white rock substance" was determined to be cocaine.
On 6 April 2009, defendant was indicted for misdemeanor possession of marijuana and felony possession of a Schedule II controlled substance. The jury found defendant guilty of both charges. The trial court sentenced defendant as a prior record level IV to eight to 10 months imprisonment for the felony conviction and to a consecutive term of 20 days imprisonment based on a prior record level III for the misdemeanor conviction. The court suspended both sentences, placing defendant on supervised probation for 24 months. Defendant timely appealed to this Court.
Discussion
On appeal, defendant challenges solely the sufficiency of the evidence to support the trial court's determination of his prior record level for sentencing purposes. N.C. Gen. Stat. § 15A-1340.14(f) (2009) provides that prior felony convictions may be proved by any of the following methods for felony sentencing purposes:
(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.
The same methods of proof may be used for purposes of misdemeanor sentencing. See N.C. Gen. Stat. § 15A-1340.21(c) (2009).
In this case, the State only submitted a prior record level worksheet to the trial court. It is well established that "[t]he State does not satisfy its burden of proving defendant's prior record level merely by submitting a prior record level worksheet to the trial court. `[T]he law requires more than the State's unverified assertion that a defendant was convicted of the prior crimes listed on a prior record level worksheet.'" State v. Jeffery, 167 N.C. App. 575, 579, 605 S.E.2d 672, 675 (2004) (internal citations omitted) (quoting State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196, 205 (2002), rev'd per curiam on other grounds in part and disc. review improvidently allowed in part, 357 N.C. 43, 577 S.E.2d 619 (2003)). Defendant points out that he did not sign the stipulation set out in section III of the worksheet. Nonetheless, the State argues that defense counsel, during the sentencing hearing, stipulated to his prior record levels for purposes of both felony and misdemeanor sentencing.
With regard to the felony sentencing, defense counsel acknowledged to the trial court: "Your Honor, I believe it would be a Class I, level four. . . ." Shortly afterwards, the Court stated, "[O]n the Class I felony, it was a record level four." Neither defendant nor his counsel objected at this point. Defendant argues that these statements are mere "scraps of verbiage" that "do not a stipulation make."
In State v. Crawford, 179 N.C. App. 613, 620, 634 S.E.2d 909, 914 (2006), disc. review denied, 361 N.C. 360, 644 S.E.2d 363 (2007), prior to the commencement of the trial, during a potential plea bargain discussion, the defendant's counsel "volunteered to the trial court that `[defendant] is a Level IV, Judge.'" Later, during sentencing following the defendant's conviction by the jury, the trial court again asked if the defendant had a prior record level IV, "which the State confirmed without objection by defendant." Id. On appeal, this Court held that the defendant's "affirmative statement as to his prior record level constitutes a stipulation for purposes of N.C. Gen. Stat. § 15A-1340.14(f)." Id. See also State v. Mack, 188 N.C. App. 365, 379, 656 S.E.2d 1, 12 (2008) (holding defendant sufficiently stipulated to prior record level IV when State informed trial court that defendant was level IV and not level III as trial court suggested, and defense counsel neither objected to State's assertion nor sought clarification as to how record level was determined, but simply stated "`IV'").
Defendant makes no attempt to distinguish this case from Crawford or Mack. Here, as in both of those cases, defense counsel both volunteered that defendant's prior record level was IV and made no objection when the trial court stated that defendant had a prior record level of IV. Defense counsel's statement was "`definite and certain,'" leaving no room for ambiguity as to whether a stipulation occurred. Crawford, 179 N.C. App. at 620, 634 S.E.2d at 914 (quoting State v. Alexander, 359 N.C. 824, 828, 616 S.E.2d 914, 917 (2005)). Consistent with Crawford and Mack, we conclude that defendant's "affirmative statement as to his prior record level constitutes a stipulation for purposes of N.C. Gen. Stat. § 15A-1340.14(f)." Id.
Defendant argues generally, however, that "[w]hat distinguishes the two loosely connected statements made here from the communication deemed by this court to have been `reasonably [. . .] construed as a stipulation' in such cases as State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002), is the absence of direct dialogue between the Judge and trial counsel as to Defendant's prior record level." Defendant asserts that here, in contrast to Eubanks and other cases, because there was no "direct dialogue between the Judge and trial counsel as to Defendant's prior record level" but rather defense counsel and the trial court each only "mentioned `level IV,'" there could be no stipulation.
Although, in Eubanks, the defense counsel's pertinent statement — indicating he had no objections to the prior record level worksheet offered by the State — immediately followed the trial court's specific inquiry as to whether the defense counsel had any objection, Eubanks did not hold that such "direct dialogue" was necessary and did not purport to define what would or would not constitute a stipulation in other circumstances. Id. at 505, 565 S.E.2d at 742. Crawford and Mack control, and, therefore, we hold that defendant stipulated to having a prior record level IV for felony sentencing purposes.
With respect to the misdemeanor sentencing, we also hold that defense counsel effectively stipulated to defendant's prior record level during colloquy with the trial court. State v. Hurley, 180 N.C. App. 680, 637 S.E.2d 919 (2006), disc. review denied, 361 N.C. 433, 649 S.E.2d 394 (2007), and State v. Wade, 181 N.C. App. 295, 639 S.E.2d 82 (2007), are controlling as to this issue.
This Court explained in Wade that while a defendant can stipulate to a prior record level through a colloquy between defense counsel and the trial court, "[a] stipulation does not require an affirmative statement and silence may be deemed assent in some circumstances, particularly if the defendant had an opportunity to object and failed to do so." Id. at 298, 639 S.E.2d at 85. Accord Alexander, 359 N.C. at 829, 616 S.E.2d at 918 ("[D]uring sentencing, a defendant need not make an affirmative statement to stipulate to his or her prior record level . . . particularly if defense counsel had an opportunity to object to the stipulation in question but failed to do so.").
In Hurley, 180 N.C. App. at 684, 637 S.E.2d at 923, the State submitted a sentencing worksheet but offered nothing else to prove the defendant's prior convictions. The following colloquy occurred during sentencing:
[PROSECUTOR]: Judge, as you can see from his record, it's enough to make you cringe how many convictions he has. He's been stealing for a living since 1990. It's time for it to stop. I'm asking for the top, the very top, of the presumptive range. A Level Five as a Class D. It's time for him to stop.
THE COURT: [Defense Counsel], I'll hear from you.
[DEFENSE COUNSEL]: Your Honor, I request whatever sentence the Court gives him he be granted work release.
THE COURT: Okay. Mr. Hurley, anything you want to say, sir?
THE DEFENDANT: No, Sir.
Id. On appeal, this Court pointed out that the defendant "had an opportunity to object and rather than doing so, asked for work release." Id. at 685, 637 S.E.2d at 923. Furthermore, he "did not object to any of the convictions shown on the worksheet at any time during the hearing." Id. While the Court acknowledged that the State's sentencing worksheet "was alone insufficient to establish defendant's prior record level," it concluded that "the conduct of defendant's counsel during the course of the sentencing hearing constituted a stipulation of defendant's prior convictions sufficient to meet the requirements" of the statute. Id.
Subsequently, in Wade, the Court reached a similar conclusion. During sentencing, the State submitted a sentencing worksheet, and the following colloquy occurred:
THE COURT: . . . So the State contends his prior record level will be II?
[PROSECUTOR]: That's correct, Your Honor.
THE COURT: All right. [Defense counsel], I'll hear from you on sentencing, sir.
[DEFENSE COUNSEL]: Your Honor, [the defendant] is here this week supported by various members of his extended family. He has no prior conviction approaching this type of incident. He is a young man. He still has a lot maybe to learn and a lot that he can accomplish, and I would ask you to consolidate where appropriate and give him the benefit of a second chance at some point.
181 N.C. App. at 298, 639 S.E.2d at 85-86. On appeal, this Court observed that the defendant "had an opportunity to object and instead of doing so, began describing mitigating factors to the trial court. At no time did defendant object to any of the convictions on the worksheet." Id. at 299, 639 S.E.2d at 86. "[U]nder the circumstances," the Court held, "this constituted stipulation to defendant's prior convictions." Id. Hurley and Wade are virtually identical to this case. Here, the following colloquy occurred during sentencing:
THE COURT: All right; you have a prior record level worksheet?
[PROSECUTOR]: Yes, Your Honor. I have a prior worksheet.
THE COURT: All right.
[DEFENSE COUNSEL]: Thank, [sic] Your Honor. Your Honor, as to the sentence, Your Honor, [defendant] is an active member of his church, he owns his own business, a repossession and maintenance business. Your Honor, he has four children which he is under current child support obligations for, and his parents are disabled and he takes care of them.
Your Honor, this charge is the first felony drug charge [defendant] has. We would ask the Court to consider fashioning a probationary sentence in this matter. Your Honor, I believe it would be a Class I, level four, and then the misdemeanor charge, we would ask the Court to consider consolidating those for judgment.
THE COURT: All right; Madam DA, you wish to be heard?
[PROSECUTOR]: Your Honor, the State would just ask that you sentence the defendant to an active term in the presumptive range. He has a lengthy misdemeanor record going back to, I believe, 1996, and he has reached the level at which an active term is a possibility.
We do not believe that there is any material distinction between this case and Hurley or Wade. After the State informed the Court it had a prior record level worksheet, defense counsel launched into a discussion of mitigating factors (as in Wade) and a request for a probationary sentence (as in Hurley). Making no argument as to the content of the worksheet that had just been submitted, defendant and his counsel let pass the opportunity to object to the prior record level worksheet. Therefore, in accordance with Hurley and Wade, we hold that defendant stipulated to his prior record level for misdemeanor sentencing.
Accordingly, the trial court did not err in sentencing defendant as a prior record level IV for felony sentencing purposes and as a prior record level III for misdemeanor sentencing purposes. Defendant stipulated to both prior record levels.
No error.
Judge ROBERT C. HUNTER concurs.
Judge STEPHENS concurs in a separate opinion.
Report per Rule 30(e).