Heard, November 18, 2014
Counsel Amended January 7, 2015.
Beaufort County, No. 06 CRS 53372, Wayland J. Sermons, Jr., Judge.
Ms. Laura Edwards Parker, Primary Attorney, Assistant Attorney General, N.C., DEPARTMENT OF JUSTICE, Raleigh, NC, for Plaintiff-Appellant - State of North Carolina.
W. Michael SpiveyMr., Primary Attorney, Attorney at Law, Rocky Mount, NC, for Defendant-Appellee - Sanders, Rondell Luvell.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, __ N.C.App. __, 753 S.E.2d 713 (2014), affirming in part and remanding for resentencing in part a judgment entered on 15 February 2013 by Judge Wayland J. Sermons, Jr. in Superior Court, Beaufort County. Heard in the Supreme Court on 18 November 2014.
On 19 November 2009, a jury found Rondell Luvell Sanders (" defendant" ) guilty of robbery with a dangerous weapon. At sentencing, the trial court awarded sentencing points for defendant's two prior Tennessee misdemeanor convictions, finding the Tennessee offenses of " theft of property" and " domestic assault" to be substantially [367 N.C. 717] similar to North Carolina offenses. On appeal, the Court of Appeals remanded the case and instructed the trial court to consider the elements of the offenses, rather than their punishments, when determining substantial similarity. State v. Sanders, __ N.C.App. __,
736 S.E.2d 238 (2013). On remand, the trial court considered the elements and determined the Tennessee offenses to be substantially similar to the North Carolina offenses of " larceny" and " assault on a female." It is from the trial court's order on remand that defendant presently appeals.
In its opinion, the Court of Appeals affirmed in part and remanded in part the trial court's judgment. State v. Sanders, __ N.C.App. __, __, 753 S.E.2d 713, 717 (2014). The court unanimously affirmed the trial court's determination that the Tennessee offense of " theft of property" is substantially similar to the North Carolina offense of " larceny."  Id. at __, 753 S.E.2d at 716. The Court of Appeals majority held that the trial court erred in finding the Tennessee offense of " domestic assault" to be substantially similar to the North Carolina offense of " assault on a female." Id. at __, 753 S.E.2d at 717. The majority concluded that the elements of the Tennessee offense differed from the North Carolina offense to such an extent that the two offenses were not substantially similar. Id. at __, 743 S.E.2d at 717. The dissent disagreed, and would have held that, because the purposes of the two states' offenses are similar and because additional evidence in the record would demonstrate that defendant's conduct would satisfy the elements of the North
Carolina offense, the State met its burden of establishing the two offenses' substantial similarity by a preponderance of the evidence. Id. at __, 753 S.E.2d at 719-20 (Bryant, J., dissenting). The State appeals the holding of the Court of Appeals on the basis of the dissent pursuant to N.C.G.S. § 7A-30(2).
Subsection 15A-1340.14(e) governs the assignment of sentencing points for prior convictions in other jurisdictions and states, in pertinent part, that
[i]f the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a ...