Heard
in the Court of Appeals 30 October 2019.
Page 581
Appeal
by Defendant from judgment entered upon plea of guilty on 12
December 2018 by Judge Walter H. Godwin, Jr., in Wilson
County, Nos. 18CRS050794, 18CRS052721, 18CRS053352,
18CRS050804 Superior Court.
Attorney
General Joshua H. Stein, by Assistant Attorney General Marie
Hartwell Evitt, for the State.
Attorney Meghan Adelle Jones, for Defendant.
OPINION
BROOK,
Judge.
Arthrysia Braswell ("Defendant") appeals from
judgment entered upon her guilty plea. Defendant argues the
State failed to establish her prior record level by a
preponderance of the evidence. We agree. We therefore reverse
and remand for resentencing.
I.
Background
Defendant was arrested for felony malicious conduct by a
prisoner, felony possession of a controlled substance on jail
premises, driving while impaired, and driving while license
revoked on 8 March 2018. On 27 July 2018, she was arrested
and charged with first-degree burglary. Defendant was also
charged with larceny of a motor vehicle, possession of a
stolen motor vehicle, and misdemeanor hit and run on 21
September 2018. She was subsequently indicted for driving
Page 582
while impaired, driving while license revoked, malicious
conduct by a prisoner, possession of a controlled substance
on prison or jail premises, and first-degree burglary. An
information was also filed charging her with larceny of a
motor vehicle.
On 12
December 2018, Defendant entered a plea of guilty to
felonious breaking and entering, malicious conduct by a
prisoner, driving while impaired, and larceny of a motor
vehicle. As part of the plea agreement, the State dismissed
the other charges against her, including first-degree
burglary, driving while license revoked, and possession of a
controlled substance on jail premises; the agreement did not
countenance a particular sentence.
Judge
Walter H. Godwin, Jr., accepted her plea and entered judgment
upon the plea. The State submitted a prior record level
worksheet for sentencing purposes. The worksheet alleged
Defendant to have 12 record level points, placing her in
sentencing category level IV. The State did not proffer a
stipulation by the parties, an original or copy of the court
record of any of the prior convictions, or a copy of records
maintained by the Department of Public Safety or the
Administrative Office of the Courts. Neither Defendant nor
defense counsel signed the prior record level worksheet to
indicate Defendant stipulated to the information set out in
the worksheet or agreed to the prior record level included
therein.
The
trial court sentenced Defendant to 24 months in the
misdemeanant confinement program on the charge of driving
while impaired,[1] 25 to 39 months imprisonment on the
charge of felony breaking and entering, and 9 to 20 months
imprisonment on the charge of larceny of a motor vehicle, the
sentences to run consecutively. The trial court referenced
Defendants alleged record level only while announcing the
sentence, stating:
[A]s to the felonious breaking and entering, the Class H, Im
going to consolidate that with the malicious conduct by a
prisoner to Class F, therefore, Class F, she is Record Level
IV for purposes of punishment. The Court is going to make no
findings in aggravation or mitigation. Going to impose a
sentence within the presumptive range. Shes hereby sentenced
to not less than 25, no more than 39 months in the North
Carolina Department of Corrections.
Then in the larceny of a motor vehicle case, Class H— I
mean, yeah, Class H Felon, she is Record Level IV[.]
The
trial court did not ask the State or defense counsel to
respond to the sentence before adjourning the sentencing
hearing, and defense counsel did not object to this
statement.
Defendant noticed appeal on 13 December 2018 but failed to
list this Court as the court to which the appeal was being
made. N.C. R. App. P. 4(b) (2019). Appeal from a final
judgment entered upon a plea of guilty lies of right with
this Court under N.C. Gen. Stat. § 15A-1444(a2)(1) where the
defendant alleges an incorrect finding of her prior record
level or prior conviction level under N.C. Gen. Stat. §
15A-1340.14. See, e.g., State v. Riley, 159
N.C.App. 546, 555, 583 S.E.2d 379, 386 (2003). Appellate
counsel was appointed on 25 January 2019, and Defendant
thereafter filed a petition for writ of certiorari .
This Court has the discretion to grant a petition for writ of
certiorari and hear an appeal.[2] See
State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d
319, 320-21 (2005) ("While this Court cannot hear
defendants direct appeal [for failure to comply with Rule
4], it does have the discretion to consider the matter by
granting a petition for writ of
Page 583
certiorari [.]"). Accordingly, we exercise that
discretion here.
II.
Standard of Review
The
determination of a defendants prior record level for
sentencing purposes is subject to de novo review.
State v. Bohler, 198 N.C.App. 631, 633, 681 S.E.2d
801, 804 (2009). We review for "whether the competent
evidence in the record adequately supports the trial
courts" determination of Defendants prior record
level. Id.
III.
Analysis
Defendant
argues that the State did not prove her prior record level by
a preponderance of the evidence. While Defendant did not
object to the record level at sentencing, "[i]t is not
necessary that an objection be lodged at the sentencing
hearing in order for a claim that the record evidence does
not support the trial courts determination of a defendants
prior record level to be preserved for appellate
review." Id.
"The 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[s]."
Id. at 634, 681 S.E.2d at 804 (citation omitted).
Under the Structured Sentencing Act, the State may prove a
defendants prior convictions and thereby establish the
defendants prior record level through any of the following
methods:
(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
Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
N.C. Gen. Stat. § 15A-1340.14(f) (2017). On one hand, a prior
record level worksheet submitted by counsel for the State,
standing alone, is never sufficient to meet the States
burden. State v. Alexander, 359 N.C. 824, 827, 616
S.E.2d 914, 917 (2005). On the other hand, an explicit
stipulation by the defendant is not necessary for the State
to carry its burden. See id. at 828, 616
S.E.2d at 917. Our case law provides useful guidance on what
suffices to establish a defendants prior record level.
In
State v. Alexander, the trial court asked defense
counsel "whether he had anything to say with respect
to sentencing." Id. at 826, 616 S.E.2d at 916.
Defense counsel directed the court to the worksheet, telling
the trial court that "up until this particular case [the
defendant] had no felony convictions, as you can see from his
worksheet." Id. The Court held that this
"exchange between the trial judge and defense counsel
constituted a stipulation," id. at 827-28, 616
S.E.2d at 917, because it "indicate[d] not only that
defense counsel was cognizant of the contents of the
worksheet, but also that he had no objections to it,"
id. at 830, 616 S.E.2d at 918. The Court in
Alexander considered also that the plea agreement
between the defendant and the State included an agreement to
a particular sentence, evidencing knowledge of and an
agreement to a prior record level. Id. at 825, 616
S.E.2d at 915.
In
coming to this conclusion, the Court instructed that "a
stipulation need not follow any particular form, [but] its
terms must be definite and certain[.]" Id. at
828, 616 S.E.2d at 917 (citation omitted). Indeed,
"[s]ilence, under some circumstances, may be deemed
assent." Id. (citation omitted). For example,
silence can constitute a stipulation where either counsel for
the State or the trial judge has mentioned the defendants
prior record points or record level before turning explicitly
to defense counsel for an opportunity to object. See
State v. Wade, 181 N.C.App. 295, 298, 639 S.E.2d 82,
85-86 (2007) (trial judge stated defendants prior record
level before offering defense counsel opportunity to object);
State v. Hurley, 180 N.C.App. 680, 684, 637 S.E.2d
919, 923 (2006) (prosecutor stated defendants prior
convictions and record level before defense counsel had
opportunity to be heard); State v. Mullinax, 180
N.C.App. 439, 444, 637 S.E.2d 294, 298 (2006) (trial judge
stated defendants prior record level and asked defendant and
defense counsel to review worksheet);
Page 584
State v. Eubanks, 151 N.C.App. 499, 504-05, 565
S.E.2d 738, 742 (2002) (trial judge stated defendants prior
record level before offering defense counsel opportunity to
object).
Riley
illustrates the circumstances under which silence does not
suffice to constitute a stipulation. In Riley,
counsel for the State referenced the defendants prior record
level, and defense counsel did not object but "asked for
mercy with regard to any sentence imposed[.]"
Id. at 557, 583 S.E.2d at 387. Additionally, in
Riley, the prosecutor and the trial court exchanged
the following colloquy:
[Prosecutor]: The first thing I would like to do is hand up a
prior record worksheet (handing). This obviously is
pertaining to the four charges that dont have a mandatory
sentence, that being three counts of assault with a deadly
weapon with intent to kill, and possession of a firearm by a
felon.
Im showing the worksheet which shows some prior felonies,
three prior— actually, four prior felonies, some
though— two of them on the same day, basically
possession of schedule I and possession with intent to sell
and deliver schedule II. Those were the subject of the prior
felony. These were from 1999, and were the subject of the
firearm by felon case that we have.
Also, in September of last year the defendant was convicted
of assault with a deadly weapon inflicting serious injury;
also possession of a firearm by a felon. So by the time you
add the points, plus the extra point for having the same
offense, the firearm by a felon, Im showing seven points.
That would make him a Level III offender for sentencing on
those cases.
THE COURT: So hes a Level III on three of the cases, and
hes a Level what on the other?
[Prosecutor]: Well, actually hes a Level III for everything
but the first-degree murder. First-degree murder, he would
technically be a Level III as well, but since theres a
mandatory statutory sentence, it really doesnt matter what
the record level is.
Id. at 556, 583 S.E.2d at 386-87 (alterations in
original). Defense counsel did not object to these
calculations. Id. at 557, 583 S.E.2d at 387. Neither
defense counsels lack of objection to these statements, nor
the prior record level worksheet, alone or in combination,
were sufficient to meet the States burden. Id.
Additionally,
this Court held in State v. Jeffery, 167 N.C.App.
575, 605 S.E.2d 672 (2004), that the "[d]efendants
agreement to six presumptive range sentences [wa]s not a
definite and certain indication that defendant ha[d] a
prior record level III. It [wa]s merely indicative of the
bargain into which he entered with the State."
Id. at 581, 605 S.E.2d at 676. Simply put, the mere
fact of a plea agreement does not necessarily amount to a
stipulation of a prior record level. See
id. ; Alexander, 359 N.C. at 828, 616
S.E.2d at 917.
Here,
the State failed to meet its burden. Defense counsel did not
stipulate to Defendants prior record level. In fact, neither
the trial judge nor the prosecutor mentioned Defendants
prior record level, prior record level points, or the fact of
each of her prior convictions in a manner that offered
defense counsel any opportunity to object to the same. The
first and only time the trial judge stated Defendants prior
record level was immediately before adjourning the hearing.
And, as in Riley, "the State submitted no
records of conviction [and] no records from the agencies
listed in N.C.G.S. § 15A-
1340.14(f)(3)[.]"[3] 159 N.C.App. at 557, 583 S.E.2d at
387.
The
State points to the plea transcript as a stipulation of
Defendants prior record level. The State contends that in
the column labeled "Pun. Cl." for "Punishment
Class," Defendant listed "IV" next to the
felony offenses to which she was pleading guilty, that is,
felony breaking and entering, malicious conduct by a
prisoner, and larceny of a motor
Page 585
vehicle. The State submits that "Defendant clearly
contemplated being sentenced as a level IV for sentencing by
including the roman numerals in the Pun. Cl. Column"
and that "[t]he inclusion amounts to a stipulation by
[D]efendant and counsel[.]" This Court should assume,
the State suggests, that Defendant stipulated to being
sentenced at a Level IV because "this column should
[instead] contain a letter, to identify a felony punishment,
or 1, 2, 3, or A1 to identify the appropriate misdemeanor
punishment." However, it was the States burden to prove
by a preponderance of the evidence that these roman numerals
on the plea transcript indicated that Defendant stipulated to
the sentencing level, and we cannot find here that this
...