The Prior Record Level Worksheet with Missing Convictions: A Persistent Ethical Dilemma

Suppose you are a defender representing a client charged with Possession of Firearm by Felon. You receive a plea offer in the case, along with the AOC-CR-600B, the “Worksheet” regularly used for calculating the Prior Record Level (PRL) before sentencing. You review the worksheet and notice that it makes no reference to a prior felony conviction for which your client served prison time. You know of this missing conviction because you regularly verify the information the State provides to you, and you saw the conviction in the relevant database. You also discussed the conviction with your client when interviewing him about his past experiences and record in prison. Without the prior conviction, your client would be sentenced as a PRL III for felony sentencing purposes, but with the conviction, your client would be sentenced as a PRL IV. The general practice in your judicial district is for both parties to sign the PRL Worksheet, stipulating to the information set forth on the form and agreeing with the defendant’s PRL classification as indicated.

How should you proceed?

In teaching felony defenders here at SOG, I’ve seen this ethical dilemma threaten to swallow up the allotted ethics hour on multiple occasions. It is a challenging issue that, like many other dilemmas, involves a clash between ethical obligations.

Rule of Professional Conduct (RPC) 1.6 (Confidentiality of Information) prevents lawyers from revealing information learned during the representation of the client without the client’s consent, subject to certain narrow exceptions. In addition, the lawyer in an adversarial system has a responsibility to be a “zealous” advocate. See N.C. Rules of Pro. Conduct, Preamble. Were you to correct the State’s error and volunteer the missing conviction, it would elevate your client’s exposure to punishment and seem to run afoul of your duties of confidentiality and zealousness, as well as the duty of loyalty, see RPC 1.7, comment 1 (loyalty is an “essential element” in the relationship with the client).

However, signing the worksheet as is arguably runs afoul of RPC 3.3, Candor to the Tribunal. Handing up a signed PRL worksheet with missing convictions could be interpreted as a misrepresentation to the court.

Practitioners disagree on what it means to sign the stipulation at the top of Page 2. The “Stipulation” reads as follows:

“The prosecutor and defense counsel, or the defendant, if not represented by counsel, stipulate to the information set out in Sections I and V of this form, and agree with the defendant’s prior record level or prior conviction level as set out in Section II based on the information herein.”

In interpreting this language, a defender might believe that by signing the stipulation they are simply indicating that they are not challenging the convictions submitted by the State and that they agree with the calculation of the PRL based on those convictions. However, a defender may be concerned that the stipulation amounts to an affirmation by defense counsel that the record presented on the form is complete and accurate. Reasonable minds can differ.

The AOC form could have been written to avoid any ambiguity. The form could simply require that the defense “stipulate to the existence of the convictions listed below and stipulate that the convictions belong to the defendant,” rather than making any potential stipulation as to the completeness of the list (note that it is not necessary to include language stipulating to the accuracy of the point calculation, as the calculation can readily be performed by the court, and it is proper for the court to confirm its accuracy). The ethical dilemma would disappear with this revision. Notably, though the form cites two statutes in the caption, G.S. 15A-1340.14 and 15A-1340.21, neither statute requires that the defense stipulate to the completeness, or exhaustiveness, of the list of prior convictions. G.S. 15A-1340.14(f) provides that the existence of a prior conviction can be proven by stipulation, original or copy of court record, various other types of records, or other reliable method. G.S. 15A-1340.21 contains essentially the same language in the context of misdemeanor sentencing. But nowhere in the statute did the General Assembly contemplate that the defense should routinely be required to sign off on the completeness of the criminal history nor the accuracy of the PRL determination. The prosecutor generally has access to the relevant databases and it is ultimately the State’s burden to “prove up” the PRL. See G.S. 15A-1340.14(f) (State has burden of proving existence of prior conviction by a preponderance of the evidence).

(Relatedly, my colleague, Jamie Markham, addressed what may be stipulated to in the context of PRL calculation in blogs here and here; as he explains, questions of law generally may not be stipulated to by the parties, but there are complexities. See State v. Prevette, 39 N.C. App. 470 (1979) (citing Young v. United States, 315 U.S. 257 (1942).)

It is crucial to note that the State Bar has explicitly stated that it is permissible for the defense to remain silent and refrain from correcting the prosecutor when the State presents an incomplete driving record during a DWI sentencing in District Court (PRL Worksheets are not generally used in misdemeanor cases). See 98 Formal Ethics Op. 5 (Apr. 16, 1998) (discussed by Jamie here); see also 2003 Formal Ethics Op. 5 (July 25, 2003) (reaffirming 98 FEO 5 and applying the reasoning to criminal cases in which a PRL worksheet is used). Furthermore, the analysis in 98 FEO 5 affirms that it would indeed be a violation of Rule 1.6 for the defense to point out the inaccuracy to the court.

Considering all of the above, some defenders would sign the worksheet on the basis that it only attests to the existence of the listed convictions. Some defenders, concerned about the ambiguity of the form, adopt a practice of never, or nearly never, signing the stipulation on the worksheet. One benefit of such practice is that it avoids the problem that arises from routinely signing the form in a series of cases and then conspicuously refusing to sign the form when the defender is aware that a conviction is missing in a particular case, presumably tipping off the prosecutor to the error. Alternatively, defenders may choose to make a regular practice of striking out a portion of the language on the Worksheet or adding language to clarify that the stipulation is only to the existence of the listed convictions, not to the completeness of the list.

I’ve heard concerns that when the defense refuses to sign the worksheet, it creates needless delay as the State is forced to prove up each conviction using printouts from NCIC, CJLEADS, eCourts, or some other repository. I don’t believe this concern is warranted, however, as the defense can make a limited stipulation to the existence of the listed convictions, or alternatively state on the record that the defense has had the opportunity to review the list of convictions and does not wish to be heard, without forcing the State to prove up the convictions one by one. The Court of Appeals in State v. Eubanks, 151. N.C. App. 499 (2002), held that language from defense counsel to the effect that the defense had “seen” the worksheet and did not have any objections should be construed as a stipulation to the existence of the convictions (citing to State v. Hanton, 140 N.C. App. 679, 689 (2000)). This approach would seemingly avoid the ethical dilemma without affecting the expedience of the proceedings.

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