State v. Braswell

         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 Defendant’s alleged record level only while announcing the sentence, stating:

[A]s to the felonious breaking and entering, the Class H, I’m 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. She’s 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 defendant’s 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 defendant’s 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 court’s" determination of Defendant’s 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 court’s determination of a defendant’s 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 defendant’s prior convictions and thereby establish the defendant’s 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 State’s 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s 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 don’t 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.

I’m 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, I’m showing seven points. That would make him a Level III offender for sentencing on those cases.

THE COURT: So he’s a Level III on three of the cases, and he’s a Level what on the other?

[Prosecutor]: Well, actually he’s a Level III for everything but the first-degree murder. First-degree murder, he would technically be a Level III as well, but since there’s a mandatory statutory sentence, it really doesn’t 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 counsel’s lack of objection to these statements, nor the prior record level worksheet, alone or in combination, were sufficient to meet the State’s burden. Id.

         Additionally, this Court held in State v. Jeffery, 167 N.C.App. 575, 605 S.E.2d 672 (2004), that the "[d]efendant’s 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 Defendant’s prior record level. In fact, neither the trial judge nor the prosecutor mentioned Defendant’s 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 Defendant’s 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 Defendant’s 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 State’s 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 ...