Stipulations to Questions of Law for Sentencing Purposes

Defendants often stipulate to prior convictions for the purpose of establishing their prior record level. Form AOC-CR-600, the prior record level/prior conviction level worksheet, includes a section (Section III, at the top of Side Two) to note that that stipulation. The court of appeals said in State v. Hussey, __ N.C. App. __ (2008), that a signed stipulation in Section III is adequate to satisfy the State’s burden of proving a defendant’s prior record level, distinguishing prior cases (State v. Jeffery, 167 N.C. App. 575 (2004), for example) decided at a time when the form did not include Section III. The frequency and ease of stipulations gives rise to two potential traps for the unwary. The first involves prior record points for out-of-state convictions. Under G.S. 15A-1340.14(e), felony convictions from other jurisdictions are, by default, considered Class I felonies for prior record level purposes. Misdemeanors from other states are considered as Class 3 misdemeanors, and thus do not count at all for felony sentencing purposes. The State or the defendant may, however, attempt to depart from these default classifications through a preponderance-of-the-evidence showing that the offense is “substantially similar” to a North Carolina offense with a different classification. For example, the State might try to show that a defendant’s prior armed robbery conviction from another jurisdiction is substantially similar to our G.S. 14-87, and thus that it should count as a Class D prior conviction (6 points) instead of a Class I (2 points). Even if the State and a defendant [...]