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 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 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 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). 

1. 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.

2. 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.

3. 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.

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.

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 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.

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.

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.

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). 

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.

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).