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State v. Arrington

Court of Appeals of North Carolina

August 1, 2017

STATE OF NORTH CAROLINA
v.
JAMES EDWARD ARRINGTON

          Heard in the Court of Appeals 26 January 2017.

         Appeal by defendant from judgment entered 14 September 2015 by Judge Alan Z. Thornburg in Buncombe County Superior Court Nos. 13 CRS 63727, 14 CRS 196, 267

          Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for defendant-appellant.

          DAVIS, Judge.

         This case requires us to revisit the question of which types of issues may be the subject of a valid stipulation by a defendant in connection with a plea agreement. James Edward Arrington ("Defendant") appeals from his convictions for assault with a deadly weapon inflicting serious injury, felony failure to appear, and attaining the status of a habitual felon. Because we conclude that the trial court improperly accepted Defendant's stipulation as to an issue of law, we vacate its judgment and remand for further proceedings.

         Factual and Procedural Background

         On 5 May 2014, Defendant was indicted for assault with a deadly weapon inflicting serious injury and attaining the status of a habitual felon. On 3 November 2014, he was also charged with felony failure to appear in connection with that assault charge. He was subsequently charged on 3 August 2015 with an additional count of attaining the status of a habitual felon.

         Defendant and the State entered into a plea agreement whereby it was agreed that (1) he would plead guilty to assault with a deadly weapon inflicting serious injury, felony failure to appear, and attaining the status of a habitual felon; and (2) the State would dismiss the second habitual felon charge. The plea agreement also reflected that Defendant would be sentenced as a habitual felon in the mitigated range and that he "stipulated that he ha[d] 16 points and [was] a Level V for Habitual Felon sentencing purposes."

         In connection with this plea agreement, the parties submitted to the trial court a prior record level worksheet for Defendant containing a stipulation as to the existence of six prior convictions generating prior record level points. One of the convictions listed was a second-degree murder conviction from 1994 (the "1994 Conviction"), which was designated in the worksheet as a Class B1 offense. The 1994 Conviction gave rise to 9 of the 16 total prior record level points reflected on the worksheet pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(1a).

         A plea hearing was held in Buncombe County Superior Court before the Honorable Alan Z. Thornburg on 14 September 2015. During the hearing, Defendant's counsel stipulated to Defendant's designation as a Level V offender as stated on the prior record level worksheet. Defendant then pled guilty to assault with a deadly weapon inflicting serious injury, felony failure to appear, and attaining the status of a habitual felon. The second habitual felon charge was dismissed. The trial court consolidated Defendant's convictions and sentenced him as a habitual felon to 96 to 128 months imprisonment.

         Analysis

         I. Appellate Jurisdiction

         As an initial matter, we must address whether we have jurisdiction over the present appeal. Defendant's sole argument is that the trial court erred by accepting his plea agreement because it was based upon an invalid stipulation of law that resulted in an incorrect calculation of his prior record level. As a result, Defendant argues, he was improperly sentenced as a Level V offender rather than a Level IV offender. Pursuant to N.C. Gen. Stat. § 15A-1444, a defendant who pleads guilty to a criminal offense in superior court is entitled to an appeal as a matter of right regarding the issue of whether the sentence imposed "[r]esult[ed] from an incorrect finding of the defendant's prior record level . . . ." N.C. Gen. Stat. § 15A-1444(a2)(1) (2015).

         Defendant, however, did not file a notice of appeal that strictly conformed to Rule 4 of the North Carolina Rules of Appellate Procedure. He instead submitted a letter to the Buncombe County Clerk of Court on 21 September 2015 expressing his dissatisfaction with his plea agreement. Because of his failure to comply with Rule 4, Defendant's appeal is subject to dismissal. However, Defendant has filed a petition for writ of certiorari requesting that we consider his appeal notwithstanding his violation of Rule 4.

         Pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure, this Court may, in its discretion, grant a petition for writ of certiorari and review an order or judgment entered by the trial court "when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C. R. App. P. 21(a)(1). In our discretion, we elect to grant Defendant's petition for writ of certiorari and reach the merits of his appeal.

         II. Validity of Defendant's Stipulation

         Before imposing a sentence for a felony conviction, the trial court must determine the defendant's prior record level, N.C. Gen. Stat. § 15A-1340.13(b) (2015), which is calculated by adding together the points assigned to each of the defendant's qualifying prior convictions, N.C. Gen. Stat. § 15A-1340.14(a). Points are assessed based upon the classification of the prior offense, and "the classification of a prior offense is the classification assigned to that offense at the time the offense for which the offender is being sentenced is committed[, ]" N.C. Gen. Stat. § 15A-1340.14(c) (emphasis added), rather than at the time the prior offense was committed.

         "The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists[, ]" State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d 914, 917 (2005) (citation and quotation marks omitted), and may - as a general matter - establish the existence of the defendant's prior convictions through any of the following means:

(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 Department of Public Safety, the Division of Motor Vehicles, or of the ...

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