An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-150


Filed: 18 November 2003


    v.                            Pitt County
                                Nos. 98 CRS 27559,
                                    98 CRS 52111-13

    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.


    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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