Appeal by defendant from judgments dated 16 April 2003 by
Judge B. Craig Ellis in Superior Court, Scotland County. Heard in
the Court of Appeals 30 August 2004.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
George E. Kelly, III for defendant-appellant.
McGEE, Judge.
Ronald Jeffery (defendant) pled guilty on 16 April 2003 to six
counts of taking indecent liberties with a child, Class F felonies.
The plea was entered
pursuant to North Carolina v. Alford, 400 U.S.
25, 27 L. Ed. 2d 162 (1970)
.
The six bills of information to which
defendant pled guilty alleged that defendant took indecentliberties with B.L.L., defendant's minor stepdaughter, during the
following six time periods: between 7 May 2000 and 7 July 2000;
between 7 August 2000 and 6 October 2000; between 7 November 2000
and 7 January 2001; between 7 February 2001 and 7 April 2001;
between 7 May 2001 and 7 July 2001; and between 7 August 2001 and
7 October 2001. The trial court sentenced defendant to six
consecutive sentences of twenty to twenty-four months in prison.
In exchange for his plea, the State dismissed rape and sex offense
charges against defendant. Defendant appeals.
The State's factual basis for entry of defendant's plea tended
to show that B.L.L. resided with her mother and defendant.
Beginning in May 2000, when B.L.L. was eleven years old, defendant
engaged in various sex acts with B.L.L. On the first occasion,
defendant put a knife to B.L.L.'s throat and put his penis inside
her. Defendant threatened to kill B.L.L. and her mother if B.L.L.
told anyone. On other occasions, defendant would wake B.L.L. up
and "have sex with [her] on the [living room] floor." On two
occasions, defendant made B.L.L. "suck his penis." Defendant had
sex with B.L.L. for the last time "one or two weeks before
[defendant] was sent to prison" on other charges on 15 January
2002. In her statement, B.L.L. indicated that she did not know
exactly how many times defendant had sex with her but she stated
that "it has been a lot."
After defendant was sent to prison, B.L.L. told her mother
that defendant had been having sex with her. B.L.L. had medical
evaluations at both the Apex Center and the Purcell Clinic. Both
evaluations led to the conclusion that B.L.L.'s hymen had beenbroken and that there were "clear signs that she had had sexual
intercourse."
B.L.L.'s natural father had previously been convicted of sex
crimes against children. Although B.L.L. had seen her natural
father after his release from prison, B.L.L. was adamant that her
natural father had never abused her. According to the State,
B.L.L. was consistent and specific in her claims that defendant
committed these crimes against her.
I.
[1] Defendant argues in his first assignment of error that the
six bills of information upon which defendant was convicted were
unconstitutionally vague. Specifically, defendant argues that the
bills of information, by leaving open five one-month gaps during
the overall time period in which the State contends the offenses
occurred, unreasonably expose defendant to future charges,
violating his constitutional right against double jeopardy.
Defendant also contends that the bills of information were not
supported by the State's factual basis for the plea, since there
was evidence that B.L.L. was in fact sexually assaulted by her
natural father. In response, the State argues that defendant has
no right to appeal this issue. We agree with the State.
Under N.C. Gen. Stat. § 15A-1444 (2003), a defendant who
pleads guilty has a right to appeal only the following issues: (1)
whether a defendant's sentence is supported by evidence introduced
at the trial and sentencing hearing, but only if the minimum
sentence for imprisonment does not fall within the presumptive
range; (2) whether the sentence imposed resulted from an incorrectrecord level finding or was not of a type or duration authorized
for a defendant's class of offense or record level; or (3) when a
motion to withdraw a plea of guilty or a motion to suppress
evidence is denied.
Defendant entered an
Alford plea, yet this assignment of error
does not concern his sentencing, a motion to withdraw a guilty
plea, or a motion to suppress evidence. This assignment of error
therefore falls outside the scope of the matters that defendant is
statutorily entitled to appeal and is not properly before this
Court.
See,
e.g.,
State v. Jamerson, 161 N.C. App. 527, 528-29,
588 S.E.2d 545, 546-47 (2003) (finding a defendant who pled guilty
did not have an "appeal of right" regarding the issue of whether
his indictment was proper).
We also note that defendant did not challenge the
constitutionality of the bills of information before the trial
court. Our Supreme Court has stated that "[c]onstitutional issues
not raised and passed upon at trial will not be considered for the
first time on appeal."
State v. Lloyd, 354 N.C. 76, 86-87, 552
S.E.2d 596, 607 (2001);
see also State v. Williams, 355 N.C. 501,
528, 565 S.E.2d 609, 625 (2002),
cert. denied, 537 U.S. 1125, 154
L. Ed. 808 (2003). Defendant acknowledges that he failed to object
to the indictments at trial, yet urges us to apply plain error
review. However, we may only apply plain error review to issues
involving jury instructions or rulings on the admissibility of
evidence.
State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31
(1996). As a result, we do not review this assignment of error.
II.
Defendant argues in his remaining assignment of error that the
State did not meet its burden of proving defendant's prior record
level at sentencing because the State did not produce any evidence
of defendant's prior record other than the prior record level
worksheet. In reviewing this assignment of error, "our standard of
review is 'whether [the] sentence is supported by evidence
introduced at the trial and sentencing hearing.'"
State v. Deese,
127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (alteration in
original) (quoting N.C. Gen. Stat. § 15A-1444 (a1) (Cum. Supp.
1996)). The State bears the burden of proving a prior conviction
by a preponderance of the evidence. N.C. Gen. Stat. § 15A-
1340.14(f) (2003). Prior convictions may be proven by any one of
the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record
of the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the
Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be
reliable.
Id.
[2] The State contends that defendant has waived this argument
by failing to object as required by N.C.R. App. P. 10(b)(1).
However, "[o]ur Supreme Court has held that an error at sentencing
is not considered an error at trial for the purpose of N.C. Rule
10(b)(1) of the North Carolina Rules of Appellate Procedure" and
therefore no objection is required to preserve the issue for
appellate review.
State v. Hargett, 157 N.C. App. 90, 92, 577
S.E.2d 703, 705 (2003) (citing
State v. Canady, 330 N.C. 398, 410S.E.2d 875 (1991));
see also State v. Mack, 87 N.C. App. 24, 33,
359 S.E.2d 485, 491 (1987),
disc. review denied, 321 N.C. 477, 364
S.E.2d 663 (1998) (holding that the "defendant was not required to
object at the sentencing hearing in order to assert the
insufficiency of the [State's] remarks as a matter of law to prove
his prior convictions by a preponderance of the evidence.")
Therefore, this assignment of error is properly before this Court.
[3] The State does not satisfy its burden of proving
defendant's prior record level merely by submitting a prior record
level worksheet to the trial court.
See State v. Miller, 159 N.C.
App. 608, 614-15, 583 S.E.2d 620, 624 (2003),
aff'd per curiam, 358
N.C. 133, 591 S.E.2d 520 (2004);
State v. Bartley, 156 N.C. App.
490, 501-02, 577 S.E.2d 319, 326 (2003);
State v. Eubanks, 151 N.C.
App. 499, 505, 565 S.E.2d 738, 742 (2002). "[T]he law requires
more than the State's unverified assertion that a defendant was
convicted of the prior crimes listed on a prior record level
worksheet."
State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d
196, 205 (2002),
rev'd on other grounds per curiam, 357 N.C. 43,
577 S.E.2d 619 (2003).
In
State v. Riley, 159 N.C. App. 546, 556-57, 583 S.E.2d 379,
386-87 (2003), the State submitted only a prior record level
worksheet to the trial court as evidence of the defendant's prior
record level. This Court held that absent any records of the
defendant's prior convictions, either from the trial court or an
agency listed in N.C. Gen. Stat. § 15A-1340.14(f)(3), the worksheet
was an insufficient means for the State to prove the defendant's
prior convictions by a preponderance of the evidence.
Riley, 159N.C. App. at 557, 583 S.E.2d at 387;
accord Miller, 159 N.C. App.
at 615, 583 S.E.2d at 624;
see also Bartley, 156 N.C. App. at 502,
577 S.E.2d at 326.
In this case, the State has similarly failed to prove
defendant's prior record level by a preponderance of the evidence.
The State submitted only the prior record level worksheet listing
the purported convictions of defendant, which established his prior
record at level III. The State never tendered to the trial court
or entered into evidence any supporting court documents or other
statutorily authorized means of proof of defendant's prior
convictions. An otherwise unsupported worksheet tendered by the
State establishing a defendant's prior record level is not even
"sufficient to meet the catchall provision found in [N.C. Gen.
Stat.] § 15A-1340.14(f)(4), even if uncontested by defendant."
Riley, 159 N.C. App. at 556-57, 583 S.E.2d at 387;
see also
Bartley, 156 N.C. App. at 502, 577 S.E.2d at 326.
The State contends that defendant "impliedly stipulated" to a
prior record level III by entering into a plea agreement that
established defendant's sentence at twenty to twenty-four months in
prison for each charge, a sentence within the presumptive range for
Class F felonies committed by a record level III felon. We
recently rejected a similar argument in
State v. Alexander, 167
N.C. App. 79, ___ S.E.2d ___ (2004).
This Court has held that a defendant can stipulate to a prior
record level through a colloquy between defense counsel and the
trial court. In
Eubanks, we held that such statements made by
defense counsel could "reasonably be construed as a stipulation bydefendant that he had been convicted of the charges listed on the
worksheet."
Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 743. In
Eubanks, the following exchange occurred at the trial court:
THE COURT: Evidence for the State?
[THE PROSECUTOR]: If Your Honor please, under
the Structured Sentencing Act of North
Carolina, the defendant has a prior record
level of four in this case, Your Honor.
THE COURT: Do you have a prior record level
worksheet?
[THE PROSECUTOR]: Yes, sir, I do.
THE COURT: All right. Have you seen that, Mr.
Prelipp [attorney for defendant]?
MR. PRELIPP: I have, sir.
THE COURT: Any objections to that?
MR. PRELIPP: No, sir.
Id. at 504-05, 565 S.E.2d at 742.
Similarly, in State v. Johnson, 164 N.C. App. 1, 24, 595
S.E.2d 176, 189 (2004), we held that when defense counsel "answered
in the affirmative" in response to the trial court's statement that
the defendant had a prior record level III, the exchange was a
stipulation to the prior convictions listed on the worksheet.
Johnson and Eubanks are distinguishable from the case before
us. In both Johnson and Eubanks, defense counsel engaged in a
colloquy with the trial court that specifically mentioned the
defendants' prior record levels and elicited admissions by defense
counsel as to the validity of the worksheets upon which the record
levels were based. See Johnson, 164 N.C. App. at 22-23, 595 S.E.2d
at 188-89; Eubanks, 151 N.C. App. at 504-05, 565 S.E.2d at 742.
Such a colloquy is lacking in our present case. Defense counselmakes no reference to the worksheet in his discussion with the
trial court. In fact, the only mention of defendant's prior record
level is the trial court's statement that defendant has "seven
prior record points" and has a "prior record level three."
Furthermore, defendant's plea agreement, in which defendant
agreed to six consecutive sentences of twenty to twenty-four months
in prison, is of insufficient specificity to rise to the level of
a stipulation. Our Supreme Court has held that
"[w]hile a stipulation need not follow any
particular form, its terms must be definite
and certain in order to afford a basis for
judicial decision, and it is essential that
they be assented to by the parties or those
representing them. . . ."
. . . Silence will not be construed as assent
thereto unless the solicitor specifies that
assent has been given.
State v. Powell, 254 N.C. 231, 234-35, 118 S.E.2d 617, 619-20
(1961), overruled on other grounds by State v. Denning, 316 N.C.
523, 342 S.E.2d 855 (1986) (quoting 83 C.J.S., Stipulations, s.3,
p.3); see also State v. Mullican, 95 N.C. App. 27, 29, 381 S.E.2d
847, 848 (1989), aff'd, 329 N.C. 683, 406 S.E.2d 854 (1991).
Defendant's agreement to six presumptive range sentences is not a
"definite and certain" indication that defendant has a prior record
level III. It is merely indicative of the bargain into which he
entered with the State. Additionally, under Powell, defendant's
failure to object at the sentencing hearing to a prior record level
III cannot be interpreted as a stipulation. Powell, 254 N.C. at
235, 118 S.E.2d at 620.
Therefore, since the State introduced no evidence of
defendant's prior record level other than the worksheet, anddefendant did not stipulate to a prior record level III, defendant
is entitled to a new sentencing hearing for a determination of his
prior record points and level.
We find no error in the six bills of information to which
defendant pled guilty; we remand defendant's case for resentencing.
Affirmed; remanded for resentencing.
Chief Judge MARTIN and Judge WYNN concur.
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