On writ of certiorari from judgment dated 31 July 2000 by
Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard
in the Court of Appeals 29 October 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Dale Talbert, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
BRYANT, Judge.
William Winston Townsend (defendant), by writ of certiorari,
appeals a judgment dated 31 July 2000 entered pursuant to a plea of
guilty to assault with a deadly weapon inflicting serious injury,
attempted first-degree rape, and two counts of first-degree sexual
offense.
Following defendant's guilty plea, the trial court determined
defendant to have seven prior record points and to be at prior
record level III. As mitigating factors, the trial court found
that: (1) defendant was suffering from a physical condition that
significantly reduced his culpability for the offense and (2)
defendant had accepted responsibility for his criminal conduct. The trial court consolidated the offenses for judgment and
sentenced defendant to a prison term within the mitigated range for
a minimum of 240 months and the corresponding maximum of 297
months.
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The sole issue on appeal is whether the trial court properly
calculated defendant's prior record level. Specifically, defendant
contends that the evidence at the sentencing hearing was
insufficient to prove by a preponderance of the evidence that
defendant had been convicted of rape in Pennsylvania and that this
rape conviction carried six prior record points, thereby elevating
his prior record level to level III.
In order to preserve for appellate review a challenge to a
trial court's sentencing findings, the defendant must have objected
to the findings in the trial court.
State v. Kimble, 141 N.C. App.
144, 147, 539 S.E.2d 342, 344-45 (2000). In this case, defendant
failed to lodge such an objection to the trial court's findings of
defendant's prior record points or prior record level. Moreover,
as demonstrated by the following statement before the trial court,
defendant, through his counsel, acknowledged that he had a record
level of III:
Yes, your honor, I think that in this case
there was definitely something out there and
he went off the deep end. Don't have an
excuse[] for it and he understands that he is
going to a level three. We're looking at his
sheet, seven points, I have explained to him
the potential ranges that he is in. . . . We
ask the Court to find those two migrating
[sic] factors[] and sentence him on that
level, that range, level three.
See State v. Duffy, 109 N.C. App. 595, 598, 428 S.E.2d 695, 697
(1993) (“a defendant's prior record may be proved by the statements
of his counsel”);
State v. Brewer, 89 N.C. App. 431, 436, 366
S.E.2d 580, 583 (1988);
State v. Cook, 65 N.C. App. 703, 705, 309
S.E.2d 737, 739 (1983). Accordingly, this assignment of error is
overruled.
No error.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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