Prior Record Level: What a Defendant Can and Cannot Stipulate To

Under G.S. 15A-1340.14(f), a defendant’s prior convictions can be proved by stipulation of the parties. And they often are. But that doesn’t mean every aspect of a person’s prior record level can be proved by stipulation. Today’s post collects the rules for what a defendant can and cannot stipulate to. A defendant CAN stipulate to the existence of a prior conviction. G.S. 15A-1340.14(f). That is true whether the conviction occurred in North Carolina or elsewhere. If the conviction is from a jurisdiction outside of North Carolina, the defendant CAN stipulate to whether it is a felony or a misdemeanor in the other jurisdiction. State v. Edgar, 242 N.C. App. 624 (2015); State v. Bohler, 198 N.C. App. 631 (2009). If the parties are content with the stipulated-to prior conviction counting for points according to North Carolina’s default rule for out-of-state offenses (felonies count as Class I felonies (2 points) and misdemeanors count as Class 3 misdemeanors (0 points)), there is no problem with the stipulation. State v. Hinton, 196 N.C. App. 750 (2009). If either of the parties wishes to establish that an out-of-state prior conviction is substantially similar to a North Carolina offense, and that it should thus count for points like its North Carolina counterpart, that is where we start to run into problems. The parties CANNOT stipulate to substantial similarity; it is a question of law, not fact. State v. Palmateer, 179 N.C. App. 579 (2005). The trial judge must evaluate substantial similarity based on a comparison of [...]