in the Court of Appeals 30 October 2019.
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.
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
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 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.
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.
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
trial court sentenced Defendant to 24 months in the
misdemeanant confinement program on the charge of driving
while impaired,  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[.]
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
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. 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 certiorari[.]").
Accordingly, we exercise that discretion here.
Standard of Review
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.
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.
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
(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.
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.
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); 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).
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.
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.
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)[.]" 159 N.C.App. at 557, 583 S.E.2d at 387.
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 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
ambiguous evidence amounts to a "definite and
certain" stipulation, as required. Alexander,
359 N.C. at 828, 616 S.E.2d at 917 (citation omitted).
State points also to a colloquy between the trial court and
Defendant in which the trial court asked Defendant whether
she had "anything [she]'d like to say to the
Court[.]" In response, Defendant stated:
I apologize to the Court, to the man whose fence it was . . .
. I also apologize to the person  whose residence I
entered. I was, I've had a lot taken from me actually and
since I got a criminal record everytime [sic] I report
something happens to me it's threw out of court without
even going before a judge.
State, citing Alexander, contends that this
reference by Defendant to her criminal record amounts to a
stipulation by Defendant that she had 12 prior record level
points and a stipulation to being sentenced at Level IV. In
Alexander, however, defense counsel explicitly
referenced the prior record level worksheet, drawing the
trial court's attention to Defendant's lack of any
prior felony convictions, 359 N.C. at 826, 616 S.E.2d at 916,
and, in so doing, tacitly endorsed its accuracy, id.
at 830, 616 S.E.2d at 918. In contrast, the exchange between
Defendant and the trial court here in which she referenced
having a "criminal record" does not suggest that
Defendant "was cognizant of the contents of the
worksheet . . . [and] had no objections to it[, ]" that
she stipulated to being sentenced at a Level IV, or that she
stipulated to the 12 record level points. Id.
colloquy between Defendant and the trial court here shares
more characteristics with Riley than it does with
Alexander. Defendant's reference to her criminal
record resembles the colloquy in Riley in which the
"[d]efendant asked for mercy with regard to any sentence
imposed and did not object to the information on the
worksheet or the statements made by the prosecutor in
reference to defendant's prior record level." 159
N.C.App. at 557, 583 S.E.2d at 387. In fact, in
Riley, counsel for the State had a more extensive
colloquy with the trial court regarding the calculation of
the defendant's points and prior record level.
Id. at 556, 583 S.E.2d at 386-87. Defense counsel in
Riley did not object to the State's explanation