Appeal by defendant from judgment dated 14 November 2002 by
Judge A. Moses Massey in Stokes County Superior Court. Heard in
the Court of Appeals 19 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas M. Woodward, for the State.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
defendant-appellant.
BRYANT, Judge.
William David Case (defendant) appeals from a judgment dated
14 November 2002 entered pursuant to a guilty plea to robbery with
a dangerous weapon, possession of marijuana with intent to sell or
deliver, and maintaining a dwelling for the keeping and using of
controlled substances.
Following defendant's guilty plea, the trial court
consolidated the convictions and sentenced defendant as a prior
record level IV offender to 108-139 months imprisonment.
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The issues on appeal are whether: (I) the trial court
committed plain error by varying from the terms of the pleaagreement in sentencing defendant as a Level IV offender instead of
a Level II; and (II) the proof of defendant's prior criminal record
was insufficient.
Defendant first argues that the trial court committed plain
error by varying from the terms of the plea agreement in sentencing
him as a Level IV offender instead of a Level II. Specifically,
defendant bases this argument on the prior record level worksheet,
which shows “IV” next to a scratched-out “II” in the prior felony
level box and the handwritten addition of five convictions to the
prior convictions list.
N.C. Gen. Stat. § 15A-1024 provides: “If at the time of
sentencing, the judge for any reason determines to impose a
sentence other than provided for in a plea arrangement between the
parties, the judge must inform the defendant of that fact and
inform the defendant that he may withdraw his plea.” N.C.G.S. §
15A-1024 (2001).
In the instant case, the trial court did not vary from the
terms of the plea agreement in sentencing defendant. As reflected
on the plea agreement, “all the terms and conditions of [the] plea”
were that the parties agreed to “consolidate the 2 drug charges
into armed robbery and sentence [within] the presumptive range” and
that “[n]o other charges will arise from this incident.” The trial
court complied with the foregoing terms of the plea agreement by
consolidating the offenses and sentencing defendant within the
presumptive range. The plea agreement does not indicate defendantwas to be sentenced as a prior record Level II offender.
Accordingly, this assignment of error is overruled.
II
Defendant next contends the proof of defendant's prior
criminal record offered at the sentencing hearing was insufficient.
Specifically, defendant notes the additional, handwritten
convictions in the prior record level worksheet do not contain file
or case numbers, and except for one case, do not contain concise
dates of conviction.
In establishing a defendant's prior record level, prior
convictions may be proved by stipulation. N.C.G.S. § 15A-
1340.14(f) (2001). Even if uncontested, an unverified prior record
level worksheet alone is not sufficiently reliable proof of prior
convictions.
State v Bartley, 156 N.C. App. 490, 502, 577 S.E.2d
319, 326 (2003);
State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d
196, 205 (2002),
rev'd on other grounds, 357 N.C. 43, 577 S.E.2d
619 (2003). However, convictions listed on a worksheet may be
considered as properly proved to the extent the defendant states he
has no objection to the listed convictions or otherwise admits that
the convictions are correctly stated.
See State v. Eubanks, 151
N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002) (holding the defense
counsel's representation to the trial court that he had seen the
record level worksheet and did not have any objection to it “may
reasonably be construed as a stipulation by [the] defendant that he
had been convicted of the charges listed on the worksheet”);
State
v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000)(stating that the defense counsel's negative reply to the trial
court's question as to whether the defendant had any objection to
all but of one the convictions listed on the record level worksheet
“might reasonably be construed as an admission by [the] defendant”
that he had been convicted of the charges appearing on the
prosecutor's worksheet).
In the present case, defendant did not object to the listed
convictions on the record level worksheet. Moreover, defense
counsel made the following statement at sentencing: “Mr. Case, as
you're going to find out momentarily, Judge, before you sentence
him, has somewhat of an extensive criminal record. And to be
honest with you, I think the State has been very generous in the
record level four. . . . He's been in prison for a long period of
his life, adult life.” This statement may reasonably be construed
as an admission to the prior convictions listed on the record level
worksheet. Therefore, defendant's prior convictions were
sufficiently proved.
No error.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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