Opinion
No. COA15-1076
05-17-2016
STATE OF NORTH CAROLINA v. GREGORY LEWIS WILLIAMS
Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State. Winifred H. Dillon for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Alamance County, Nos. 13 CRS 4268; 13 CRS 54632 Appeal from judgment entered 27 June 2014 by Judge Paul G. Gessner in Alamance County Superior Court. Heard in the Court of Appeals 2 May 2016. Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State. Winifred H. Dillon for defendant-appellant. McCULLOUGH, Judge.
A jury found defendant guilty of felonious breaking or entering ("B&E"), whereupon he entered a guilty plea to attaining habitual felon status. Defendant's counsel signed the prior record level ("PRL") worksheet prepared by the prosecutor stipulating to the prior convictions listed thereon and to six PRL points resulting in a PRL III. See N.C. Gen. Stat. § 15A-1340.14(f)(1) (2015) (allowing proof of prior convictions by stipulation). Counsel confirmed his stipulation in open court before defendant tendered his plea. The trial court sentenced defendant as an habitual felon with a PRL III to an active prison term of 84 to 113 months. Defendant gave notice of appeal in open court.
Defendant now claims the trial court erred in assigning him a PRL III based on the convictions listed on his sentencing worksheet. Specifically, he contends that the worksheet erroneously assigns him two PRL points for a Class H felony conviction of assault by strangulation in 10 CRS 55112, when this conviction was also used to establish his habitual felon status in the indictment filed in 13 CRS 4268. See N.C. Gen. Stat. § 14-7.6 (2015) ("In determining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used."). Discounting this conviction, defendant avers, the worksheet reflects just four PRL points and a PRL II. See N.C. Gen. Stat. § 15A-1340.14(b)-(c) (2015). The State responds that defendant is bound by his stipulation as to his PRL.
As a general matter, parties may stipulate to the existence or non-existence of a particular fact. See Baxley v. Nationwide Mut. Ins. Co., 104 N.C. App. 419, 422, 410 S.E.2d 12, 14 (1991). Our structured sentencing law thus allows the State to prove the fact of a defendant's prior conviction, inter alia, by "[s]tipulation of the parties." N.C. Gen. Stat. § 15A-1340.14(f)(1). By contrast, "[s]tipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate." State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (1979). As we have repeatedly explained, "[a]lthough defendant's stipulation as to prior record level is sufficient" to prove the prior convictions used to establish his PRL, "the trial court's assignment of [a PRL] to defendant [is a] . . . conclusion of law, which we review de novo." State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007); accord State v. Massey, 195 N.C. App. 423, 429, 672 S.E.2d 696, 699 (2009).
This Court is bound by the parties' stipulation as to the convictions listed on the PRL worksheet. However, insofar as defendant purported to stipulate to a PRL III, his stipulation is ineffectual. Parties "may not stipulate as to what the law is." Baxley, 104 N.C. App. at 422, 410 S.E.2d at 14. The legal effect of defendant's prior convictions is a question of law we review de novo.
The case cited by the State, State v. Alexander, 359 N.C. 824, 829-30, 616 S.E.2d 914, 918 (2005), is inapposite. The issue before the Supreme Court in Alexander was whether defense counsel effectively stipulated to a Class A1 misdemeanor conviction listed on the PRL worksheet by stating to the court that " 'up until this particular case [the defendant] had no felony convictions, as you can see from his worksheet.' " Id. at 826, 830, 616 S.E.2d at 916, 918. The Alexander Court concluded that counsel implicitly stipulated to defendant's prior misdemeanor conviction for purposes of N.C. Gen. Stat. § 15A-1340.14(f)(1), inasmuch as his "statement indicates 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 ("If defense counsel's affirmative statement with respect to defendant's lack of previous felony convictions was proper, then so too was the implicit statement that defendant's previous misdemeanor convictions were properly reflected on the worksheet in question.").
At the time Alexander was decided, the PRL worksheet form (AOC-CR-600) did not contain the current section that allows the defendant to stipulate to the existence of the convictions listed thereon. Compare Alexander, 359 N.C. at 827, 616 S.E.2d at 917 ("There is no doubt that a mere worksheet, standing alone, is insufficient to adequately establish a defendant's prior record level."), with State v. Hussey, 194 N.C. App. 516, 523, 669 S.E.2d 864, 868 (2008) ("The prior record level worksheet was modified in 2003 to include the stipulation section.").
Unlike Alexander, the issue before this Court is not the existence of the prior convictions listed on a PRL worksheet, but the legal effect thereof. We agree with defendant that, based on the listed convictions, the trial court erred by assigning him a PRL III.
By statute, a prior felony conviction that is used to establish a defendant's habitual felon status may not also be used for purposes of his PRL calculation. N.C. Gen. Stat. § 14-7.6. Moreover, where a defendant incurs multiple felony convictions in a single calendar week of court, only one of those felonies may be used for PRL purposes. N.C. Gen. Stat. § 15A-1340.14(d) (2015).
Defendant's PRL worksheet lists two prior convictions from Alabama that were used to establish defendant's status as an habitual felon: an 18 October 2002 conviction of "Escape 3rd Degree" and a 8 September 2000 conviction of receiving stolen property. However, the PRL worksheet mistakenly designates defendant's 6 March 2013 larceny conviction in 11 CRS 55157 as the third felony included in his habitual felon indictment. The indictment instead alleges as the third predicate felony defendant's 20 April 2011 conviction of assault by strangulation in 10 CRS 55112. Therefore, he may not be assigned PRL points for the assault by strangulation conviction. See N.C. Gen. Stat. § 14-7.6.
Excluding the three felony convictions alleged in defendant's habitual felon indictment, the PRL worksheet includes just two prior convictions that may properly result in PRL points: (1) any one of the three felony convictions obtained in Alabama on 11 May 2005; and (2) any one of the twenty Class H felony convictions obtained on 6 March 2013 in Alamance County, North Carolina. See N.C. Gen. Stat. § 15A-1340.14(d) ("[I]f an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used."). Moreover, the Alabama felony must be treated as Class I for PRL purposes, absent proof to the contrary. See N.C. Gen. Stat. § 15A-1340.14(e) (2015).
As a matter of law, the convictions on defendant's PRL worksheet result in just four PRL points: two points for one Class I felony obtained in Alabama on 11 May 2005, and two points for one Class H felony obtained on 6 March 2013 in Alamance County. See N.C. Gen. Stat. § 15A-1340.14(b)(4). Under N.C. Gen. Stat. § 15A-1340.14(c), four PRL points yield a corresponding PRL II. Accordingly, we must remand to the trial court for resentencing.
REMANDED FOR RESENTENCING.
Chief Judge McGEE and Judge ZACHARY concur.
Report per Rule 30(e).