Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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Distinguishing State v. Hamby, 129 N.C. App. 366, (1998), the court held that the defendant could appeal the trial court’s calculation of her prior record level even though she had stipulated to her prior convictions on the sentencing worksheet.
The court rejected the defendant’s argument that the trial court violated his rights under the ex post facto clause when it assigned points to his prior record level based upon a conviction that was entered after the date of the offenses for which he was sentenced in the present case. The court noted that the conviction for the prior was entered more than a year before entry of judgment in the present case and G.S. 15A-1340.11(7) (defining prior conviction) was enacted prior to the date of the present offense.
The trial court erred when sentencing the defendant as a habitual felon by assigning prior record level points for an assault inflicting serious bodily injury conviction where that same offense was used to support the habitual misdemeanor assault conviction and establish the defendant’s status as a habitual felon. “Although defendant’s prior offense of assault inflicting serious bodily injury may be used to support convictions of habitual misdemeanor assault and habitual felon status, it may not also be used to determine defendant’s prior record level.”
Distinguishing State v. Gentry, 135 N.C. App. 107 (1999), the court held that the trial court did not err by using a felonious breaking or entering conviction for the purpose of both supporting a possession of a firearm by a felon charge and calculating the defendant’s prior record level.
The trial court correctly determined the defendant’s prior record level (PRL) points. At sentencing, the State submitted a print-out of the defendant’s Administrative Office of the Courts (AOC) record. The defendant offered no evidence. On appeal, the defendant argued that the State failed to meet its burden of proving that one of the convictions was the defendant’s, arguing that the birthdate in the report was incorrect and that he did not live at the listed address at the time of sentencing. The court held that the fact that the defendant was living at a different address at the time of sentencing was of no consequence, in part because people move residences. As to the birthdate, under G.S. 15A-1340.14(f), a copy of a AOC record “bearing the same name as that by which the offender is charged, is prima facie evidence that the offender named is the same person as the offender before the court.”
Criminal Procedure > Sentencing > Prior Record Level > Elements of Current Offense Included in Prior Conviction
(1) In this Franklin County case, the defendant was convicted of felony larceny pursuant to a breaking or entering, felony larceny of a firearm, firearm by felon, fleeing to elude, and armed robbery. The larceny pursuant to breaking or entering and larceny of a firearm occurred at the same time as a part of a continuous transaction and could not support separate convictions. Under the single taking rule, “a single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place.” Posner Slip op. at 4. The State conceded this error, and the court remanded the for judgment to be arrested on one of the larceny counts. [Brittany Williams recently blogged about the single taking rule here.]
(2) The defendant also challenged the trial court’s calculation of his prior record level. The trial court included a point based on a prior 2012 conviction for possession of drug paraphernalia. When determining record level points, prior convictions are classified by the law in effect at the time the present offense was committed. In 2014, the legislature created the class 3 misdemeanor offense of possession of marijuana paraphernalia. The State conceded that the defendant’s paraphernalia 2012 conviction was for marijuana paraphernalia. The conviction therefore should not have counted under current law and the trial court erred in including this point.
The trial court also erred in part in assigning the defendant an additional record level point for having been previously convicted of offenses with “all of the elements of the present offense.” G.S. 15A-1340.14(b)(6). This point applied to the defendant based on his prior convictions for possession of firearm by felon and felony breaking and entering. The defendant had not previously been convicted of larceny of a firearm, fleeing to elude arrest, or armed robbery, however, and it was error to assign this record level point in the judgments for those offenses. Both errors were prejudicial, as they raised the defendant’s prior record level from a level IV to a level V. The matter was therefore remanded for resentencing as well.
No prejudicial error occurred with respect to the trial court’s finding that the defendant’s prior federal conviction of unlawful possession of a firearm was substantially similar to the North Carolina conviction of possession of a firearm by a felon, for purposes of assigning an extra point when all of the elements of the present offense are included in any prior offense for which the defendant has been convicted. Here, the extra point elevated the defendant from Level I to Level II. The defendant argued that the State failed to present evidence of substantial similarity. The court held that because the trial court’s finding was in fact correct, any error that occurred was harmless. In its holding the court concluded that a finding that an out-of-state offense is substantially similar to a North Carolina offense is sufficient for a finding that the elements of the present offense are included in any prior conviction under G.S. 1340.14(b)(6).
In calculating the defendant’s prior record level, the trial court erred by assigning an additional point on grounds that all the elements of the present offense were included in a prior offense. The defendant was found guilty of possession of a stolen vehicle. The court rejected the State’s argument that the defendant’s prior convictions for possession of stolen property and larceny of a motor vehicle were sufficient to support the additional point. The court noted that while those offenses are “similar to the present offense” neither contains all of its elements. Specifically, possession of a stolen vehicle requires that the stolen property be a motor vehicle, while possession of stolen property does not; larceny of a motor vehicle requires proof of asportation but not possession while possession of a stolen vehicle requires the reverse.
The trial court erred by assigning a PRL point under G.S. 15A-1340.14(b)(6) (one point if all the elements of the present offense are included in any prior offense). The trial court assigned the point because the defendant was convicted of felony speeding to elude (Class H felony) and had a prior conviction for that offense. However, the new felony speeding to elude conviction was consolidated with a conviction for assault with a deadly weapon on a governmental officer (AWDWOGO), a more serious offense (Class F felony). When offenses are consolidated, the most serious offense controls, here AWDWOGO. Analyzed in this fashion, all of the elements of AWDWOGO are not included in the prior felony speeding to elude conviction. The court rejected the State’s argument that because both felonies were elevated to Class C felonies under the habitual felon law, assignment of the prior record level was proper.
Following Ford, discussed above, and holding that the trial court properly assigned a prior record level point based on the fact that all elements of the offense at issue−delivery of a controlled substance, cocaine−were included in a prior conviction for delivery of a controlled substance, marijuana.
The defendant was convicted of attempted felony larceny and then pled guilty to being a habitual felon. The defendant previously had been convicted of felony larceny. That the judge properly found one point under G.S. 15A-1340.14(b)(6) (all elements of current offense are included in offense for which defendant was previously convicted) in calculating prior record level. Attempted felony larceny is a lesser-included offense of felony larceny regardless of the theory of felony larceny. It was irrelevant that the defendant’s prior felony larceny convictions did not include the element that the defendant took property valued over $1,000.
In this Johnston County case, defendant appealed her convictions for three counts of larceny by an employee, arguing error in denying her motion to dismiss for insufficient evidence and calculating her prior record level. The Court of Appeals found no error.
From May 13 -15, 2021, defendant was responsible for making cash deposits from her Dollar General store to the bank. In the store’s deposit log, defendant recorded that deposits were made on each day; she quit her job at the store on May 17. An audit later determined that defendant never made the deposits and stole over $11,000 from the store. A loss prevention officer tried to contact defendant, but could not reach her, and the matter was reported to the local sheriff’s office. Defendant was finally located and served with arrest warrants in September of 2021. After being served with arrest warrants, defendant made deposits into the Dollar General bank account in March and April of 2022, totaling the missing amount. When the matter came for trial, defendant testified that she left the deposit bags containing the missing amount in her car, and assumed her daughter had made the necessary deposits. When asked where she obtained the money to make the deposits in 2022, defendant said that she scraped together the money from working jobs and borrowing from family members, admitting that it was not the same money that had been taken from the store.
The Court of Appeals explained the evidence supported a conclusion that defendant intended to take and deprive Dollar General of the money because defendant “quit her job the day after she falsely indicated that she had deposited Dollar General’s money into its bank account and left town.” Slip Op. at 7. The court rejected defendant’s argument that she did not have an intent to permanently deprive Dollar General of the funds, noting that defendant reimbursed the missing funds only after being arrested for larceny.
Moving to the record level calculation, the court noted that defendant pleaded guilty to misdemeanor possession of methamphetamine in 1999, but the same year the General Assembly reclassified the possession of any amount of methamphetamine as a felony. As a result, defendant’s plea agreement to the apparent misdemeanor was properly classified as a felony under G.S. 15A-1340.14(c), adding two points to her prior record level. The court explained that this did not breach defendant’s plea agreement, as “[s]he ‘bargained’ for a conviction to a lesser degree of possession of methamphetamine, dismissal of the possession of drug paraphernalia charge, and a sentence in accordance with that agreement.” Id. at 10.
There was no ex post facto violation in determining the defendant’s prior record level when prior record level points were calculated using the classification of the prior offense at the time of sentencing (Class G felony) rather than the lower classification in place when the defendant was convicted of the prior (Class H felony).
When calculating prior record level points for a new felony, points may be assigned based on a prior substantive felony supporting a prior habitual felon conviction, but not based on the prior habitual felon conviction itself.
Although the trial court incorrectly determined that the defendant had a total of 8 prior record level points rather than six, the error was harmless. The defendant was assigned to prior record level III, which requires 5-8 points. A correct calculation of defendant’s points would have placed him in the same level.
In this Cleveland County case, defendant petitioned for a writ of certiorari, arguing error in sentencing him at an inflated prior record level. The State conceded the error. The Court of Appeals vacated the judgment and remanded for resentencing with the appropriate prior record level.
In March of 2021, a jury convicted defendant of two charges related to controlled substances; after the verdict but before sentencing, defendant entered a plea agreement to two additional charges and attaining habitual felon status. During the sentencing hearing, the State submitted a worksheet showing sixteen points assigned to defendant based on his seven prior misdemeanors and three prior felonies, along with defendant being on probation at the time of the offenses. The court sentenced defendant as a level V offender.
Taking up defendant’s argument, the Court of Appeals explained that the trial court improperly calculated defendant’s prior record level, which should have been level IV. The State conceded that defendant was improperly assigned additional points based on previous convictions that should have been excluded. The court walked through the appropriate calculation, noting that the highest total that could be assigned to defendant was thirteen points, justifying level IV. As a result, the court remanded for resentencing.
The trial court erred in calculating the defendant’s prior record level points. Specifically, it made an arithmetic error, finding that the points totaled 18 when in fact they totaled 17. This error lead the trial court to sentence the defendant as a prior record level VI offender instead of as a record level V offender. The State conceded the mathematical error but argued the error was harmless. The court agreed, noting that it has repeatedly held that an erroneous prior record level calculation does not prejudice the defendant if the trial court’s sentence is within the presumptive range at the correct level, as it was here.
Criminal Procedure > Sentencing > Prior Record Level > Multiple Offenses in One Court Week & Related Issues
The trial court erred in calculating the defendant’s prior record level, which was proved by stipulation, by using a joinable offense as a prior conviction for sentencing purposes. In 2004 the defendant was convicted of first-degree murder and armed robbery based on an incident where he killed his father and took money from his father’s bedroom. The defendant was 15 years old at the time of the offenses but was tried as an adult and sentenced to life in prison without the possibility of parole. In 2014 post-conviction proceedings based on Miller v. Alabama, the first-degree murder conviction was vacated and the defendant pleaded guilty to second-degree murder. As part of that plea agreement, the State and the defendant stipulated that the defendant had a prior record level of III, a record level that was the result of six prior record points arising from the 2004 armed robbery conviction. Noting that a defendant’s stipulation regarding his or her prior record level does not preclude the court’s review where calculation of the record level requires answering a legal question, the court found that use of the 2004 armed robbery conviction violated the rule from State v. West, 180 N.C. App. 664 (2006) that a joinable offense may not be used in calculating a defendant’s prior record level.
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.
Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. A judge who dissented on a different issue concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.
(No. COA13-925). Citing, State v. West, 180 N.C. App. 664 (2006) (the same case cited in Perkins above), the court held that the trial court erred by increasing the defendant’s sentence based on convictions for charges that originally had been joined for trial with the charges currently before the court. The charges were joined for trial and at the first trial, the defendant was found guilty of some charges, not guilty of others and there was a jury deadlock as to several others. The defendant was retried on charges that resulted in a deadlock and convicted. The trial court used the convictions from the first trial when calculating the defendant’s PRL.
Although the trial court erred by assigning the defendant one point for a misdemeanor breaking and entering conviction when it also assigned two points for a felony possession of a stolen vehicle conviction that occurred on the same date, the error did not increase the defendant’s PRL and thus was harmless.
On appeal, a defendant is bound by his or her stipulation to the existence of a prior conviction. However, even if a defendant has stipulated to his or her prior record level, the defendant still may appeal the propriety of counting a stipulated-to conviction for purposes of calculating prior record level points. In this case, the trial court erred by counting, for prior record level purposes, two convictions in a single week of court in violation of G.S. 15A-1340.14(d).
In this New Hanover County case, defendant appealed his conviction for possessing a firearm as a felon, arguing error in the denial of his motion to suppress and improper sentencing. The Court of Appeals found no error.
In February of 2020, a Wilmington police officer observed defendant enter a parking lot known for drug activity and confer with a known drug dealer. When defendant exited the parking lot, the officer followed, and eventually pulled defendant over for having an expired license plate. During the stop, the officer determined that defendant was a “validated gang member,” and had previously been charged with second-degree murder; the officer was also aware that a local gang war was underway at that time. Slip Op. at 2. The officer frisked defendant and did not find a weapon, but defendant told the officer there was a pocketknife in the driver’s door compartment. When the officer went to retrieve the pocketknife he did not find it, but while looking around the driver’s area he discovered a pistol under the seat. During sentencing for defendant, his prior record level was calculated with nine points for prior crimes and one additional point for committing a crime while on probation/parole/post-release supervision, leading to a level IV offender sentence.
Reviewing defendant’s appeal, the court first noted that the initial traffic stop for an expired plate was proper. The frisk of defendant’s person and vehicle required the officer to have “a reasonable suspicion that the suspect of the traffic stop is armed and dangerous.” Id. at 7, quoting State v. Johnson, 378 N.C. 236 (2021). The court found the totality of the officer’s knowledge about defendant satisfied this standard, as defendant had just exited a parking lot known for drug transactions, had a history of being charged with murder, was a known gang member, and was in an area experiencing a local gang war. Because the officer had a reasonable suspicion that defendant might be armed and dangerous, the frisk of the vehicle leading to the discovery of the pistol was acceptable.
Turning to defendant’s sentencing, the court explained that under G.S. 15A-1340.14(b)(7), the state was obligated to provide defendant with notice of its intent to add a prior record level point by proving his offense was committed while on probation, parole, or post-release supervision. While the record did not contain evidence that defendant received the required notice 30 days before trial, the court found that the exchange between defense counsel and the trial court represented waiver for purposes of the requirement. While the trial court did not confirm the receipt of notice through the colloquy required by G.S. 15A-1022.1, the exchange between the trial court and defense counsel fell into the exception outlined in State v. Marlow, 229 N.C. App 593, meaning “the trial court was not required to follow the precise procedures . . . as defendant acknowledged his status and violation by arrest in open court.” Slip Op. at 18.
A police officer stopped the defendant for suspected texting while driving. When the officer returned to his vehicle to check on the defendant’s identity, the defendant fled. (1) Before his trial on charges of texting while driving and felony fleeing to elude, the defendant moved to suppress the evidence obtained during the stop. At the suppression hearing, the officer testified that he did not stop the defendant for merely using the phone, but rather for using it in a manner that he reasonably believed ran afoul of G.S. 20-137.4A(a), North Carolina’s prohibition on texting and emailing while driving. The officer testified that the defendant was using and handling the phone in a manner more consistent with texting or reading text messages than with using a mapping system. The trial court denied the defendant’s motion and the defendant was convicted of felonious fleeing to elude. On appeal, the defendant argued that the trial court committed plain error by concluding that the officer was justified in stopping his car solely based on his observation that the operator was using a cell phone while driving. The Court of Appeals disagreed, holding that under the specific facts of this case, which included additional indicia of criminal activity beyond mere phone use, the trial court did not err by finding that the officer had reasonable, articulable suspicion to believe that the defendant was using the phone in a manner proscribed by law. The Court emphasized that its holding should not be viewed as establishing a test for meeting the reasonable suspicion requirement in other texting while driving cases. (2) The Court remanded the case for the defendant to be sentenced at prior record level two instead of level three, as his prior record level worksheet improperly counted a point for a prior misdemeanor. The Court rejected the State’s argument that the improperly counted point could be offset by adding for the first time an additional point under G.S. 15A-1340-14(b)(7) for the defendant being on probation at the time of the offense, as the State did not comply with the statutory notice procedures for that point.
The trial court erred by assessing one prior record level point because the offense was committed while the offender was on probation, parole, or post-release supervision where the State did not give notice of its intent to seek this point. Including a prior record level worksheet in discovery materials is insufficient to meet the notice requirement.
The trial court erred by including a prior record level point under G.S. 15A-1340.14(b)(7) where the State did not provide the defendant with notice of intent to prove the existence of the point as required by the statute.
The trial court erred by sentencing the defendant as a PRL III offender when State failed to provide the notice required by G.S. 15A-1340.16(a6) and the defendant did not waive the required notice.
On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 845 (2017), the court reversed, holding that as part of a plea agreement a defendant may stipulate on his sentencing worksheet that a second-degree murder conviction justified a B1 classification. In 2015 the defendant entered into a plea agreement with the State requiring him to plead guilty to two charges and having attained habitual felon status. Under the agreement, the State consolidated the charges, dismissed a second habitual felon status count, and allowed the defendant to be sentenced in the mitigated range. As part of the agreement, the defendant stipulated to the sentencing worksheet showing his prior offenses, one of which was a 1994 second-degree murder conviction, designated as a B1 offense. Over a dissent, the Court of Appeals vacated the trial court’s judgment and set aside the plea, holding that the defendant improperly stipulated to a legal matter. The Court of Appeals reasoned that because the legislature divided second-degree murder into two classifications after the date of the defendant’s second-degree murder offense, determining the appropriate offense classification would be a legal question inappropriate for a stipulation. Reversing, the Supreme Court noted that the crime of second-degree murder has two potential classifications, B1 and B2, depending on the facts. It continued: “By stipulating that the former conviction of second-degree murder was a B1 offense, defendant properly stipulated that the facts giving rise to the conviction fell within the statutory definition of a B1 classification. Like defendant’s stipulation to every other offense listed in the worksheet, defendant’s stipulation to second-degree murder showed that he stipulated to the facts underlying the conviction and that the conviction existed.” The court went on to reject the defendant’s argument that he could not legally stipulate that his prior second-degree murder conviction constituted a B1 felony. It noted that before 2012, all second-degree murders were classified at the same level for sentencing purposes. However, in 2012 the legislature amended the statute, elevating second-degree murder to a B1 offense, except when the murder stems from either an inherently dangerous act or omission or a drug overdose. Generally, a second-degree murder conviction is a B1 offense which receives nine sentencing points; when the facts of the murder meet one of the statutory exceptions thereby making it a B2 offense, it receives six points. It is undisputed that the State may prove a prior offense through a stipulation. “Thus,” the court continued “like a stipulation to any other conviction, when a defendant stipulates to the existence of a prior second-degree murder offense in tandem with its classification as either a B1 or B2 offense, he is stipulating that the facts underlying his conviction justify that classification.” Here, the defendant could properly stipulate to the facts surrounding his offense by either recounting the facts at the hearing or stipulating to a general second-degree murder conviction that has a B1 classification. By stipulating to the worksheet, the defendant simply agreed that the facts underlying his second-degree murder conviction fell within the general B1 category because the offense did not involve either of the two factual exceptions recognized for B2 classification.
In this Mecklenburg County case, defendant appealed his convictions for first-degree felony murder and possession of a firearm by a felon, arguing plain error in admitting an interview recording and error in calculating his prior record level. The Court of Appeals found no plain error or error.
Defendant was convicted of a murder committed at a Charlotte bus stop in May of 2018. At trial, a recording of an interview conducted by detectives with defendant was published to the jury. The recording was redacted by agreement between the parties. Defendant did not object to the publication of the recording to the jury during trial. However, on appeal, defendant argued that admitting the recording was plain error as portions contained hearsay, inadmissible character evidence, was unfairly prejudicial, and shifted the burden of proving his innocence.
Although the State argued that defendant’s appeal was barred by the invited error doctrine, the Court of Appeals rejected this argument, noting that although defendant agreed to the redactions of the recording, he did not take any affirmative action to admit the recording. Despite this, the court found no plain error in admitting the recording, noting that the record also contained two eyewitnesses who identified defendant as the shooter, surveillance evidence showing someone dressed like defendant at the scene, and testimony from defendant himself corroborating the testimony of the witnesses and surveillance footage. The court also found no issue with the prior record level calculation, noting the trial court used computerized criminal history information known as DCI-CCH to establish defendant’s prior convictions. The court explained that “a DCI-CCH is a record maintained by the Department of Public Safety and may be used to prove Defendant’s prior convictions pursuant to N.C. Gen. Stat. § 15A-1340.14(f).” Slip Op. at 10.
The defendant was convicted at a jury trial of three felony drug charges for the possession, sale, and delivery of heroin, and pleaded guilty to attaining habitual felon status. The defendant stipulated to a sentencing worksheet that indicated a total of 12 record points, giving the defendant a prior record level IV for sentencing.The trial court found mitigating factors and sentenced the defendant to a term of 80 to 108 months.
The defendant argued on appeal that there was insufficient evidence in the record to support the determination that he had a level IV prior record with 12 points, and the appellate court agreed. The sentencing worksheet included several felony convictions that were used to establish defendant’s habitual felon status, along with a number of prior convictions from out-of-state, although most of those convictions were marked out. Next to the felony convictions was a notation indicating 18 points, but the total for this section of the worksheet was listed as 14, which was then crossed out and replaced by a 10 (plus 2 points for the defendant’s misdemeanor convictions). The appellate court agreed with the defendant that it was unclear from the record which felony convictions the trial court relied on in reaching this total. Moreover, in order to reach a total of 12 points, the trial court must have either found that one or more of the out-of-state convictions was substantially similar to a North Carolina offense, or included one or more of the felonies that were used to establish the habitual felon status, neither of which was permitted. The court disagreed with the state’s argument that the defendant’s stipulation was sufficient to support the record level determination, distinguishing this case from State v. Arrington, 371 N.C. 518 (2018), where the stipulations were limited to questions of fact. A defendant may stipulate to the existence of a prior conviction and whether or not it is a felony, but he may not stipulate that an out-of-state conviction is substantially similar to a North Carolina offense; that is a legal determination which must be made by the trial court based on a preponderance of the evidence standard, and there was no such showing or finding made in this case.
The case was remanded for a new sentencing hearing. The court noted that the prior worksheet may serve as evidence at that hearing of the defendant’s stipulation to the existence of the prior convictions, but the state must meet its burden of establishing the substantial similarity of any out-of-state convictions. Since the case was remanded for a new sentencing hearing, the court did not reach the defendant’s remaining arguments as to whether he received ineffective assistance of counsel at sentencing, or whether the trial court committed prejudicial error by miscalculating his record.
The defendant pled guilty to various offenses in Wilson County and the State offered a prior record level (“PRL”) worksheet alleging 12 points, making her a Level IV for felony sentencing purposes. The defendant did not expressly stipulate to the prior convictions and neither she nor her attorney signed the worksheet. The trial court sentenced the defendant as a record level IV without objection. The court then adjourned immediately without asking the parties if they wished to be heard. The defendant appealed, complaining that the State failed to prove her prior record level by a preponderance of the evidence. The Court of Appeals granted certiorari and reversed.
While the defendant did not object at sentencing, an error in prior record level calculation is automatically preserved under G.S. 15A-1444(a2)(1). A bare prior record level worksheet is insufficient to establish the defendant’s criminal record by a preponderance of the evidence, but “an explicit stipulation is not necessary for the State to carry its burden.” The court reviewed precedent regarding when and how the State meets its burden to prove prior record level. Where the defendant’s counsel acknowledged the worksheet and directed the court’s attention to it during sentencing, those acts were deemed a stipulation to the accuracy of the PRL worksheet. State v. Alexander, 359 N.C. 824 (2005). “[A] stipulation need not follow any particular form, [but] its terms must be definite and certain.” Silence can be deemed a stipulation if the trial court or prosecutor states the alleged record level and the defense is clearly given an opportunity to object but fails to do so. On the other hand, where the defendant is not clearly given an opportunity to object and does not otherwise acknowledge the PRL, “[n]either defense counsel’s lack of objection . . . nor the PRL worksheet, alone or in combination, is sufficient to meet the State’s burden.”
Here, there was no stipulation and counsel did not have an opportunity to object to the record level. That the defendant had signed a plea transcript with a notation “IV” under the “Pun. Cl.” (punishment class) column on the plea transcript next to a list of the offenses to which she was pleading did not amount to a stipulation.
[I]t 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.
Similarly, a reference by the defendant to her “criminal record” during the plea colloquy did not rise to the level of a stipulation. The State therefore failed to meet its burden and the matter was vacated and remanded for resentencing.
Judge Tyson would have denied the defendant’s petition for certiorari, finding no merit to the defendant’s arguments on appeal.
The defendant fired a gun from his car toward a park where over a dozen people were playing basketball and hanging out. He was later found asleep in his car in a ditch by a Highway Patrol officer, who arrested him for driving while impaired. He was convicted by a jury of second-degree murder and assault with a deadly weapon. The defendant argued that the trial court erred by admitting three phone calls the defendant made from the jail because they contained hearsay and violated the defendant’s confrontation rights. (1) As to the hearsay argument, the court of appeals concluded that any error was harmless in light of the overwhelming evidence of the defendant’s guilt. (2) As to the alleged violation of the Confrontation Clause, the court adopted the reasoning of a case from the Fourth Circuit, United States v. Jones, 716 F.3d 851 (4th Cir. 2013), and concluded that, despite automated warnings indicating that the calls were being recorded and monitored, the statements made by the woman the defendant was talking to on the jail phone were not intended to bear witness against him, and were therefore not testimonial. Because the statements were not testimonial, their admission did not violate the Confrontation Clause. (3) Next, the court declined to consider whether the trial court committed plain error by admitting, without objection, video interviews in which the defendant discussed prior assault and rape charges with the police. Again, in light of the overwhelming evidence of the defendant’s guilt, the defendant failed to show how the admission of the evidence resulted in a miscarriage of justice or an unfair trial. (4) At sentencing, the trial court did not err by sentencing the defendant as a Class B1 felon upon jury’s general verdict of guilty of second-degree murder when no evidence or jury instruction supported the depraved-heart malice that makes the crime a Class B2 felony. As in State v. Lail, 251 N.C. App. 463 (2017), it was readily apparent from the evidence here that the jury found the defendant guilty of a Class B1 second-degree murder. (5) Finally, the court of appeals rejected the defendant’s argument that his stipulation to a prior conviction identified as “M-PUBLIC DISTURBANCE” as a Class 1 misdemeanor was ambiguous in light of the multiple potential classifications of disorderly conduct. To the contrary, under State v. Arrington, 371 N.C. 518 (2018), when a defendant stipulates to a prior conviction of a particular offense classification, he or she also stipulates to the facts underlying that conviction. The trial court has no duty to enquire further in the absence of clear record evidence suggesting the defendant stipulated to an incorrect classification, and there was no such evidence here.
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.
Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. A judge who dissented on a different issue concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.
The court determined that the trial court erred in calculating the defendant’s prior record level (PRL) based on the defendant’s stipulation that a prior conviction for expired operators’ license was a Class 2 misdemeanor. At the time of the instant offense, driving with an expired license had been reclassified as an infraction. G.S. 15A-1340.21(b) provides that an offense may be included in determining a defendant’s PRL only “if it is either a felony or misdemeanor at the time the offense for which the offender is being sentenced is committed.” DistinguishingState v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that a defendant’s stipulation regarding the classification of a prior felony conviction was binding as a factual determination where two possible classifications existed for the offense at issue, the court explained that because “no misdemeanor category crime for possession of an expired operators’ license existed” at the relevant time, as a matter of law the defendant could not stipulate as he did.
The defendant pled guilty pursuant to Alford to drug and firearms offenses and to habitual felon status. The plea agreement specified that the offenses would be consolidated for judgment and the defendant sentenced in a specific mitigated range. The defense stipulated to a Prior Record Level Worksheet, identifying 19 prior conviction points and classifying the defendant as a Level VI for felony sentencing. On appeal, the defendant argued that three convictions on the record level worksheet were improperly counted. The three convictions at issue were (1) a 1994 drug paraphernalia conviction, listed as a class 1 misdemeanor on the worksheet; (2) a 1993 conviction for maintaining a vehicle/dwelling, listed as a class I felony; and (3) a 1993 conviction for carrying a concealed weapon, listed as a class 1 misdemeanor. A copy of the judgment for the maintaining a vehicle/dwelling was introduced at trial and classified the offense as a misdemeanor (but failed to identify the class).
- In the recent case of State v. Arrington, 371 N.C. 518 (2018), the North Carolina Supreme Court instructed: “[W]hen a defendant stipulates to a prior conviction on a worksheet, the defendant is admitting that certain past conduct constituted a stated criminal offense.” (internal citation omitted) As to the drug paraphernalia conviction, the court found that Arrington applied:
Here, on the Worksheet, Defendant—as ‘the person most familiar with the facts surrounding his offense’—stipulated that his 1994 Possession-of-Drug-Paraphernalia conviction was classified as a class 1 misdemeanor. Thus, Defendant was stipulating that the facts underlying his conviction justify that classification. (citing Arrington)
There was therefore no error to include a record level point for that conviction.
- As to the 1993 maintaining a vehicle/dwelling conviction, the court determined Arrington did not apply when a copy of the judgment of conviction was before the court, which showed the offense was classified as a misdemeanor. In the court’s words:
[W]hen evidence (such as a certified copy of the judgment) is presented to the trial court conclusively showing a defendant’s stipulation is to an incorrect classification—as is the case here—Arrington does not apply, and a reviewing court should defer to the record evidence rather than a defendant’s stipulation.
- As to the final conviction for carrying a concealed weapon, the defendant pointed out that that offense is typically a class 2 misdemeanor under G.S. 14-269, and therefore should not have been counted as a felony sentencing point. That offense may be elevated to a class H felony when the defendant has been previously convicted of the misdemeanor, but in no case is a violation of that statute a class 1 misdemeanor. Here, nothing showed the defendant had a prior conviction for the crime. The court acknowledged this was a “conundrum” under Arrington. The court identified one circumstance under the statutes where the offense could possibly be classified as a class 1 misdemeanor—when a defendant with a concealed weapon permit carries a concealed handgun while consuming alcohol, under G.S. 14-415.21(a1) (and by reference to G.S. 14-415.11). It was therefore possible for the conviction to be counted as a class 1 misdemeanor. However, the court observed:
[W]e do not believe the intent of Arrington was to require a reviewing court to undertake sua sponte a voyage of discovery through our criminal statutes to locate a possibly applicable statute and imagine factual scenarios in which it could apply. Rather, we defer to the parties who stipulated to the prior conviction as to what statute applies. Therefore, because Section 14-269 does not provide for a violation of its provisions to be classified as a Class 1 misdemeanor, we conclude Arrington is inapplicable and that the trial court erred in accepting the Defendant’s stipulation.
The maintaining a vehicle/dwelling and carrying concealed weapon convictions added two points to the defendant’s record level worksheet, without which the defendant would have been classified as a prior record level V. The errors were therefore not harmless. Because the defendant’s sentence was imposed pursuant to a plea bargain, remand for resentencing was inappropriate. The court instead vacated the judgment, set aside the entire plea, and remanded for trial or plea on the original charges.
The trial court did not err by accepting the defendant’s stipulation that a prior conviction for “No Operator’s License” was a Class 2 Misdemeanor. In making this stipulation, the defendant stipulated that the facts underlying his conviction justify that classification. The trial court was under no duty to pursue further inquiry or require the defendant to recount the facts regarding the prior conviction.
Because the State failed to meet its burden of proving that the defendant’s 2012 possession of drug paraphernalia conviction was related to a drug other than marijuana, the court remanded for resentencing. Since 2014, state law has distinguished possession of marijuana paraphernalia, a Class 3 misdemeanor, from possession of paraphernalia related to other drugs, a Class 1 misdemeanor. Here, where the State failed to prove that the 2012 conviction was for non-marijuana paraphernalia, the trial court erred in treating the conviction as a Class 1 misdemeanor.
The trial court did not err by sentencing the defendant as a PRL IV offender. The State used the defendant’s prior Michigan conviction at the default level as a Class I felony. On appeal the defendant argued that since the prior record level worksheet did not clearly show that the Michigan conviction was classified as a felony in Michigan and the State did not present any evidence regarding the conviction or its classification there, it was improperly treated as a felony. The worksheet clearly indicated that the offense would be classified as a Class I felony and the defendant stipulated to this classification.
The evidence supported sentencing the defendant as a PRL II offender where defense counsel’s lack of objection to the PRL worksheet, despite the opportunity to do so, constituted a stipulation to the defendant’s prior felony conviction.
There was sufficient evidence to sentence the defendant as a PRL IV offender. Defense counsel stipulated to the defendant’s prior record level as stated on the prior record level worksheet where counsel did not dispute the prosecutor’s description of the defendant’s prior record or raise any objection to the contents of the proffered worksheet. Additionally, counsel referred to the defendant’s record during his sentencing argument.
The trial court correctly calculated the defendant’s PRL. The defendant argued that the trial court erred by basing its PRL calculation on an ineffective stipulation. The defendant’s only prior conviction was one in Michigan for carrying a concealed weapon, which he contended is substantially similar to the NC Class 2 misdemeanor offense of carrying a concealed weapon. The court concluded that the defendant did not make any stipulation as to the similarity of the Michigan offense to NC offense. Instead, the prior conviction was classified as a Class I felony, the default classification for an out-of-state felony. Thus, defendant’s stipulations in the PRL worksheet that he had been convicted of carrying a concealed weapon in Michigan and that the offense was classified as a felony in Michigan, were sufficient to support the default classification of the offense as a Class I felony.
The court rejected the defendant’s argument that the trial court erred by sentencing the defendant as a PRL III offender without complying with G.S. 15A-1022.1 (procedure for admissions in connection with sentencing). At issue was a point assigned under G.S. 15A-1340.14 (b)(7) (offense committed while on probation). As a general rule, this point must be determined by a jury unless admitted to by the defendant pursuant to G.S. 15A-1022.1. However, the court noted, “these procedural requirements are not mandatory when the context clearly indicates that they are inappropriate” (quotation omitted). Relying on State v. Marlow, 229 N.C. App. 593 (2013), the court noted that the defendant stipulated to being on probation when he committed the crimes, defense counsel signed the PRL worksheet agreeing to the PRL, and at sentencing, the defendant stipulated that he was a PRL III..
The trial court did not err by accepting a stipulation to a PRL point under G.S. 15A-1340.14(b)(7) without engaging in the mandated colloquy where the context clearly indicated that it was not required.
The evidence supported the trial court’s determination that the defendant was in PRL V. The trial court based its determination on NC and NY DCI records. The defendant argued that the NY DCI record was not sufficient because it was inconsistent with the NC DCI record. The court found any inconsistencies to be minor clerical errors.
Sufficient evidence supported the trial court’s determination of the defendant’s prior record level. Counsel’s oral stipulation and the prior record level worksheet established the existence of an out-of-state felony conviction, even though neither the defendant nor defense counsel signed the worksheet.
Where the defendant stipulated that he was previously convicted of one count of conspiracy to sell or deliver cocaine and two counts of selling or delivering cocaine and that these convictions were Class G felonies, there was sufficient proof to establish his prior conviction level. The class of felony for which defendant was previously convicted was a question of fact, to which defendant could stipulate, and was not a question of law requiring resolution by the trial court.
The State’s evidence regarding the defendant’s prior record level was insufficient. The State offered only an in-court statement by the prosecutor and the prior record level worksheet. The court rejected the State’s argument that the prior record level was agreed to by stipulation, noting that defense counsel objected to the worksheet and to two listed convictions.
The defendant was properly assigned two prior record level points for a federal felony. The State presented a prior record level worksheet, signed by defense counsel, indicating that the defendant had two points for the federal conviction. During a hearing, the prosecutor asked defense counsel if the defendant stipulated to having two points and defense counsel responded: “Judge, I saw one conviction on the worksheet. [The defendant] has agreed that’s him. Two points.” Defense counsel made no objection to the worksheet. When the defendant was asked by counsel if he wanted to say anything, the defendant responded, “No, sir.” The worksheet, defense counsel’s remark, and defendant’s failure to dispute the existence of his out-of-state conviction are sufficient to prove that the prior conviction exists, that the defendant is the person named in the prior conviction, and that the prior offense carried two points.
A printed copy of a screen-shot from the N.C. Administrative Office of the Courts (AOC) computerized criminal record system showing the defendant’s prior conviction is sufficient to prove the defendant’s prior conviction under G.S. 15A-1340.14(f)(3). Additionally, the information in the printout provides sufficient identifying information with respect to the defendant to give it the indicia of reliability to prove the prior conviction under subsection (f)(4).
The trial court erred by sentencing the defendant at prior record level VI. Although the prosecutor submitted a Felony Sentencing Worksheet (AOC-CR-600), there was no stipulation, either in writing on the worksheet or orally by the defendant. The court noted that the relevant form now includes signature lines for the prosecutor and either the defendant or defense counsel to acknowledge their stipulation to prior conviction level but that this revision seems to have gone unnoticed.
A printout from the FBI’s National Crime Information Center (NCIC) contained sufficient identifying information to prove, by a preponderance of the evidence, that the defendant was the subject of the report and the perpetrator of the offenses specified in it. The printout listed the defendant’s prior convictions as well as his name, date of birth, sex, race, and height. Because the printout included the defendant’s weight, eye and hair color, scars, and tattoos, the trial court could compare those characteristics to those of the defendant. Additionally, the State tendered an official document from another state detailing one of the convictions listed in the NCIC printout. Although missing the defendant’s year of birth and social security number, that document was consistent in other respects with the NCIC printout.
A defendant’s stipulation to the existence of out-of-state convictions and their classification as felonies or misdemeanors can support a “default” classification for prior record level purposes. However, a stipulation to substantial similarity is ineffective, as that issue is a matter of law that must be determined by the judge.
The defendant’s stipulation that certain out-of-state convictions were substantially similar to specified North Carolina offenses was ineffective. However, the defendant could stipulate that the out-of-state convictions occurred and that they were either felonies or misdemeanors under the other state’s law, for purposes of assigning prior record level points. Based on the stipulation in this case, the defendant’s out-of-state convictions could be counted for prior record level purposes using the “default” classifications in G.S. 15A-1340.14(e).
A stipulation signed by the prosecutor and defense counsel in Section III of AOC-CR-600 (prior record level worksheet) supported the judge’s finding regarding prior record level. The court distinguished a prior case on grounds that the current version of the form includes a stipulation to prior record level.
The defendant’s stipulation that a New Jersey conviction was substantially similar to a North Carolina offense for prior record level points was ineffective. The “substantially similar” issue is a question of law that must be determined by a judge.
In this Cumberland County case, the Supreme Court affirmed the Court of Appeals decision finding no error in defendant’s convictions for human trafficking and promoting prostitution. The Court held that (1) defendant could be convicted of multiple counts of human trafficking for each victim under G.S. 14-43.11, and (2) the trial court erred in calculating defendant’s prior record level, but this error was not prejudicial.
Between 2012 and 2015, defendant supplied heroin to several women, and used their addiction to manipulate them into prostitution. Defendant used online solicitations to set up customers, and he transported the women to various locations to engage in prostitution. Defendant was ultimately indicted and convicted of multiple charges for each victim, and he appealed. At the Court of Appeals, the majority found no error, but the dissenting judge “argued that human trafficking is a continuing offense because the statute criminalizing human trafficking does not define the unit of prosecution.” Slip Op. at 4.
Taking up (1), the Supreme Court first examined the structure of G.S. 14-43.11, noting that subsection (a) provides the conduct representing an offense, and subsection (c) “clarifies that human trafficking is not a continuing offense . . . demonstrat[ing] that each distinct act of recruiting, enticing, harboring, transporting, providing or obtaining a victim can be separately prosecuted.” Id. at 7. The Court also noted the anti-merger provision in subsection (c). Having established that each act was a separate offense under the statute, the Court moved to a double jeopardy analysis, determining that defendant did not suffer “multiple punishments for the same conduct.” Id. at 12. The Court also considered the sufficiency of the indictments, as each “tracked the language of the statute but included variations for the names of the victims and the date ranges of the alleged violations.” Id. at 14. These were sufficient as “none of the indictments rendered the charged offenses uncertain” and the statute did not provide for alternative offenses, meaning defendant was given sufficient notice of the charges against him. Id. at 16.
The Court also considered (2), the calculation of defendant’s prior record level. Defendant did not stipulate to his prior convictions, and the State did not offer any evidence that defendant’s prior federal firearm conviction was similar to a North Carolina offense. However, the Court explained it was not prejudicial, as “[defendant’s] federal firearms conviction is substantially similar to a Class G felony in North Carolina . . . [and if] remanded for resentencing, defendant’s sentence would not change.” Id. at 19.
Justice Riggs, joined by Justice Earls, concurred in (2), but dissented from (1), and would have held “that the indictments are only sufficient to support one count of human trafficking per victim within the dates provided in the indictment.” Id. at 23.
The Court of Appeals properly applied the comparative elements test of State v. Sanders, 367 N.C. 716 (2014) in affirming the trial court’s consideration of the defendant’s Georgia conviction for statutory rape as equivalent to a North Carolina Class B1 felony for purposes of calculating the defendant’s PRL for sentencing. Comparing the elements of the Georgia statutory rape offense with the elements of G.S. 14-27.25, the Court found the offenses substantially similar despite variations in the states’ punishment schemes based on the ages of the offender and the victim.
Justice Earls, joined by Justice Ervin, dissented, expressing the view that the majority misapplied Sanders and that the offenses were not substantially similar because the Georgia statute “indisputably encompasses conduct which is not a Class B1 felony in North Carolina.” Justice Earls explained that, at the time of the defendant’s Georgia offense, a person who was 18 years old who had sexual intercourse with a 14-year-old would have violated the Georgia statute at issue but would not have violated any North Carolina statute creating a Class B1 felony.
(1) The trial court erred by determining that a Tennessee offense of “domestic assault” was substantially similar to the North Carolina offense of assault on a female without reviewing all relevant sections of the Tennessee code. Section 39-13-111 of the Tennessee Code provides that “[a] person commits domestic assault who commits an assault as defined in § 39-13-101 against a domestic abuse victim.” Section 39-13-101 defines when someone commits an “assault.” Here the State provided the trial court with a photocopy section 39-13-111 but did not give the trial court a photocopy of section 39-13-101. The court held: “We agree with the Court of Appeals that for a party to meet its burden of establishing substantial similarity of an out-of-state offense to a North Carolina offense by the preponderance of the evidence, the party seeking the determination of substantial similarity must provide evidence of the applicable law.” (2) Comparing the elements of the offenses, the court held that they are not substantially similar under G.S. 15A-1340.14(e). The North Carolina offenses does not require any type of relationship between the perpetrator and the victim but the Tennessee statutes does. The court noted: “Indeed, a woman assaulting her child or her husband could be convicted of “domestic assault” in Tennessee, but could not be convicted of “assault on a female” in North Carolina. A male stranger who assaults a woman on the street could be convicted of “assault on a female” in North Carolina, but could not be convicted of “domestic assault” in Tennessee.”
In this Cleveland County case defendant appealed after being convicted of firearm and drug possession charges and receiving a prior record level V during sentencing. Defendant argued the state improperly classified his two felony convictions from Kentucky. The Court of Appeals agreed, remanding for resentencing.
In March of 2023, defendant came for trial on charges related to possession of a firearm and methamphetamine. After the jury returned verdicts of guilty, the trial court proceeded to sentence defendant, calculating 16 prior record level felony points. The trial court relied on a worksheet from the State which identified two felony convictions from Kentucky as G and F level felonies, with no further evidence to support they were substantially similar to North Carolina offenses.
Taking up the argument, the Court of Appeals reviewed G.S. 15A-1340.14, noting that the default assumption is an out-of-state felony conviction is equivalent to a Class I felony, and the burden is on the State to show the out-of-state violation is substantially similar to a higher level felony. Here, the only evidence submitted was a record level worksheet, despite the requirement that “the State must submit to the trial court a copy of the applicable out-of-state statute it claims to be substantially similar to a North Carolina offense.” Slip Op. at 6. Neither the State nor the trial court conducted any comparative analysis of the violations, and the trial court simply accepted the worksheet with the information provided, which was error. As a result, the court remanded for resentencing, noting that the State could offer additional information at the resentencing hearing.
In this Mecklenburg County case, defendant appealed his convictions for attempted first-degree murder and various assault and firearms charges, arguing error in the determination of his prior record level by finding his federal carjacking conviction was substantially similar to common law robbery. The Court of Appeals found no error.
In 2018, defendant fired multiple shots during an altercation, one of which struck a child waiting at a bus stop, attracting the attention of an off-duty sheriff’s deputy. Defendant jumped into a vehicle, and as the driver sped away from the deputy, defendant fired multiple shots at the deputy’s vehicle. Defendant was eventually caught, and was convicted of all charges against him at trial. During the sentencing phase, the trial court considered whether defendant’s conviction for carjacking under 18 U.S.C. § 2119 was substantially similar to the North Carolina common law offense of robbery. After hearing from the parties, the trial court concluded that the State had proven by a preponderance of the evidence that the two offenses were substantially similar, increasing defendant’s prior record level by four sentencing points.
The Court of Appeals began by noting the similarities between the two offenses, as “[b]oth the federal carjacking statute and North Carolina’s common law robbery require the forceful and violent taking of property.” Slip Op. at 9. Defendant raised four arguments on appeal. First, defendant argued that the similarity between the two offenses failed the test from State v. Sanders, 367 N.C. 716 (2014). The Court of Appeals disagreed, explaining “[h]ere, unlike in Sanders, the elements of carjacking and common law robbery require similar conduct, and no elements are mutually exclusive.” Slip Op. at 11. In defendant’s second argument, he pointed to the connection to interstate commerce requirement for the federal offense, an element not present in common law robbery. The court dismissed this argument, pointing to a similar determination in State v. Riley, 253 N.C. App. 819 (2017), and explaining that the additional federal element of “interstate commerce” did not distinguish the two crimes. Slip Op. at 13.
Defendant pointed to the sentencing enhancements of the federal statute not present in the North Carolina offense for his third argument. The court again disagreed, noting the N.C. Supreme Court has explained “the test in Sanders does not ‘require identicalness between compared statutes from different states and mandate identical outcomes between cases which originate both in North Carolina and in the foreign state.’” Id. at 15, quoting State v. Graham, 379 N.C. 75, 84 (2021). Finally, defendant argued that the North Carolina offense was broader than the federal offense, as the federal offense is limited to theft of motor vehicles. This final argument also failed, as the court referenced State v. Key, 180 N.C. App. 286 (2006), and concluded that the two offenses were substantially similar as “both the federal carjacking statute and North Carolina common law robbery require a non-consensual taking of property under threat, force, or intimidation.” Slip Op. at 17.
(1) In this Buncombe County case, the State prepared the defendant’s prior record level worksheet and calculated that the defendant had fourteen prior record points based on ten out-of-state felony and misdemeanor convictions. The defendant and her counsel stipulated to these prior convictions by signing the sentencing worksheet. At the plea hearing, the state provided “the trial court with copies of each out-of-state misdemeanor statute as evidence that the offenses were ‘substantially similar’ to a North Carolina offense to support their classification as Class 1 misdemeanors.” Slip op. at ¶ 5. Upon accepting the copies, the trial court did not review them further, and only asked the defendant’s counsel whether they objected to the trial court finding that the out-of-state misdemeanors were of similar status in North Carolina. The defendant’s counsel did not respond because of an interruption by the prosecutor, but following the interruption, the defendant and her counsel agreed to “14 prior record points and a prior record level, therefore, of five for felony sentencing purposes.” Id. at ¶ 5.
On appeal, the defendant claimed that the trial court erred by failing to consider whether each conviction was substantially similar to any North Carolina Class A1 or Class 1 misdemeanor, and thus miscalculated her prior sentencing points. The Court of Appeals agreed that the trial court may not accept a stipulation that an out-of-state conviction is “substantially similar” to a particular North Carolina felony or misdemeanor. Instead, the trial court must compare the elements of the out-of-state statute with the elements of the North Carolina statute to determine as a matter of law whether they are substantially similar. The Court of Appeals remanded the case for resentencing.
(2) Prior to sentencing, the defendant’s counsel told the trial court that they were appointed, their hours on the case, and that it totaled to $990 in attorney’s fees. The trial court did not, however, ask the defendant herself about the attorney’s hours or fees. Under State v. Friend, 257 N.C. App. 516 (2018), indigent defendants have a right to notice and the opportunity to be heard before civil judgments are entered against them for court-appointed attorney’s fees. The trial court did not offer the defendant an opportunity to be heard and thus erred. The Court of Appeals vacated the imposed civil judgment for attorney’s fees.
The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.
At sentencing, the trial court concluded that a prior sex offense conviction from Georgia was substantially similar to a North Carolina offense classified as a B1 felony, adding 9 points to defendant’s criminal history. The Georgia statute was not formally introduced into evidence, but the appellate court determined the record was sufficient to review the issue and reject defendant’s argument. Although there were some minor differences in the statutes regarding the age requirements for perpetrators and victims, such that some acts might qualify under one statute but not the other, overall the prohibited conduct was substantially similar and “[b]oth N.C. Gen. Stat. § 14-27.25 and Ga. Code Ann. § 16-6-3 seek to protect persons under age sixteen from those who would engage in sexual intercourse with them, and seek greater deterrence for offenders significantly older than their victims by punishing them more severely.”
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.
Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. A judge who dissented on a different issue concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.
(1) In calculating prior record level, the trial court did not err by concluding that the defendant’s South Carolina conviction for criminal sexual conduct in the third degree was substantially similar to the North Carolina Class C felonies of second-degree forcible rape and second-degree forcible sex offense. The court rejected the defendant’s argument that the South Carolina conviction could be a violation of either second-degree forcible rape or second-degree forcible sexual offense, but not both because North Carolina’s rape statute only applies to vaginal intercourse and the sexual offense statute specifically excludes vaginal intercourse. This argument was “a distinction without a difference.” (2) Over a dissent, the court held that the trial court erred by concluding that the defendant’s South Carolina conviction for criminal sexual conduct in the first degree was substantially similar to the North Carolina Class BI felonies of statutory rape of a child by an adult and statutory sex offense with the child by an adult. These offenses are not substantially similar due to their disparate age requirements. Specifically, although both North Carolina statutes require that the offender be at least 18 years old, a person of any age may violate the South Carolina statute. Also, the North Carolina statutes apply to victims under the age of 13, while South Carolina’s protects victims who are less than 11 years old. Thus, the North Carolina and South Carolina statutes apply to different offenders and different victims and are not substantially similar.
To the extent the State failed to meet its burden at sentencing to establish that the defendant’s prior conviction in federal court was substantially similar to a Class G felony in North Carolina, the error was harmless. The court found that there is sufficient information in the record to conclude that the federal offense of being a felon in possession of a firearm is substantially similar to the North Carolina offense of possession of a firearm by a felon, a Class G felony.
The trial court did not err by assigning points for two out-of-state felony convictions. “[B]ecause defendant stipulated to his prior record and the prosecutor did not seek to assign a classification more serious than Class I to his out-of-state convictions for second-degree burglary and breaking and entering, the State was not required to offer proof that these offenses were considered felonies in South Carolina or that they were substantially similar to specific North Carolina felonies.”
The trial court correctly calculated the defendant’s PRL. The defendant argued that the trial court erred by basing its PRL calculation on an ineffective stipulation. The defendant’s only prior conviction was one in Michigan for carrying a concealed weapon, which he contended is substantially similar to the NC Class 2 misdemeanor offense of carrying a concealed weapon. The court concluded that the defendant did not make any stipulation as to the similarity of the Michigan offense to NC offense. Instead, the prior conviction was classified as a Class I felony, the default classification for an out-of-state felony. Thus, defendant’s stipulations in the PRL worksheet that he had been convicted of carrying a concealed weapon in Michigan and that the offense was classified as a felony in Michigan, were sufficient to support the default classification of the offense as a Class I felony.
The trial court did not err in calculating the defendant’s prior record level when it counted a New Jersey third-degree theft conviction as a Class I felony. The court rejected the defendant’s argument that because New Jersey does not use the term “felony” to classify its offenses, the trial court could not determine that third-degree theft is a felony for sentencing purposes, noting that the State presented a certification that third-degree theft is considered a felony in New Jersey. The court also rejected the defendant’s argument that the offense was substantially similar to misdemeanor larceny.
Although the trial court erred by accepting the defendant’s stipulation that a Tennessee conviction for “theft over $1,000” was substantially similar to a NC Class H felony, the error did not affect the computation of the defendant’s PRL and thus was not prejudicial.
Based on the elements of the two offenses, the trial court erred by concluding that a prior Ohio conviction was substantially similar to the North Carolina crime of assault with a deadly weapon with intent to kill.
Where the defendant stipulated to the worksheet’s classification of a South Carolina conviction as a Class I felony, the trial court correctly assigned two points for that conviction. The court reasoned that the defendant knew of the worksheet’s contents and had ample opportunity to object to them. It thus concluded that the defendant’s silence regarding the worksheet’s classification of the conviction as a Class I felony constituted a stipulation. Moreover, it reasoned, because Class I is the default classification for an out-of-state felony the State met its burden and was required to prove nothing further in support of that classification.
When determining prior record level, the trial court erroneously concluded that a Georgia conviction for theft was substantially similar to misdemeanor larceny without hearing any argument from the State. Additionally, the Georgia offense is not substantially similar to misdemeanor larceny; the Georgia offense covers both temporary and permanent takings but misdemeanor larceny covers only permanent takings.
The trial court did not err in calculating the defendant’s prior record level. The trial court considered the defendant’s two federal felony convictions as Class I felonies for purposes of calculating prior record level. Because the defendant made no showing that either conviction was substantially similar to a North Carolina misdemeanor, the trial court did not err by using the default Class I categorization.
In determining whether out-of-state convictions were substantially similar to NC offenses, the trial court erred by failing to compare the elements of the offenses and instead comparing their punishment levels.
The trial court did not err by finding that a NY drug conviction for third-degree drug sale was substantially similar to a NC Class G felony under G.S. 90-95. Comparing the two states’ statutes, the offenses were substantially similar, notwithstanding the fact that the states’ drug schedules are not identical. The court noted: the requirement in G.S. 15A-1340.14(e) “is not that the statutory wording precisely match, but rather that the offense be ‘substantially similar.’”
The trial court erred by determining that the defendant was a prior record level VI when the defendant’s Florida conviction for burglary was not sufficiently similar to the corresponding N.C. burglary offense. The Florida statute is broader than the N.C. statute in that it encompasses more than a dwelling house or sleeping apartment. Significantly, the Florida statute does not require that the offense occur in the nighttime or that there be a breaking as well as an entry. Based on these differences, the Florida burglary statute is not sufficiently similar to N.C.’s burglary statute. The court went on to find the Florida crime sufficiently similar to G.S. 14-54, felonious breaking or entering.
The trial court erred in calculating the defendant’s prior record level with respect to whether a federal conviction was substantially similar to a N.C. felony. The determination of substantial similarity is a question of law which cannot be determined by stipulation to the worksheet.
The trial court erred by sentencing the defendant as a level IV offender when the State failed to present sufficient evidence establishing that out-of-state offenses were substantially similar to North Carolina offenses. The State presented printed copies of out-of-state statutes purportedly serving as the basis for the out-of-state convictions. However, the State’s worksheet did not identify the out-of-state crimes by statute number and instead used brief and non-specific descriptions that could arguably describe more than one crime, making it unclear whether the statutes presented were the basis for the defendant’s convictions. Also, the State presented 2008 versions of statutes when the defendant’s convictions were from 1993 and 1994, and there was no evidence that the statutes were unchanged. Finally, the trial erred by accepting the classification of the defendant’s out-of-state offenses without comparing the elements of those offenses to the elements of the North Carolina offenses the State contended were substantially similar.
Since the State failed to demonstrate the substantial similarity of out-of-state New York and Connecticut convictions to North Carolina crimes and the trial court failed to determine whether the out-of-state convictions were substantially similar to North Carolina offenses, a resentencing was required. The State neither provided copies of the applicable Connecticut and New York statutes, nor provided a comparison of their provisions to the criminal laws of North Carolina. Also, the trial court did not analyze or determine whether the out-of-state convictions were substantially similar to North Carolina offenses.
For purposes of assigning one prior record level point for out-of-state misdemeanors that are substantially similar to a North Carolina A1 or 1 misdemeanor, North Carolina impaired driving is a Class 1 misdemeanor. Thus, the trial court did not err by assigning one prior record level point to each out-of-state impaired driving conviction. The state presented sufficient evidence that the out-of-state convictions were misdemeanors in the other state.