STATE OF NORTH CAROLINA
v. Harnett County
Nos. 02 CRS 1736, 50103
JOHN PETE LOCKAMY
Attorney General Roy Cooper, by Assistant Attorney General
William McBlief, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
LEVINSON, Judge.
On 11 March 2002, defendant John Pete Lockamy was indicted on
charges of trafficking in cocaine by possession, trafficking in
cocaine by transportation, and being an habitual felon. On 8 April
2002, a superseding indictment was entered charging defendant with
being an habitual felon. On 1 November 2002, defendant was
convicted of trafficking in cocaine by possession. Defendant
subsequently admitted his habitual felon status. At the plea
hearing, the trial court found that defendant had five prior record
level points. The trial court then sentenced defendant as a Class
C, Level III felon to a term of 93 to 121 months imprisonment.
Defendant appeals. Defendant's sole argument on appeal is that the trial court
erred in sentencing him as a prior record level III felon.
Defendant contends that the State failed to prove the existence of
the convictions listed in his prior record level worksheet.
After careful review of the record, briefs and contentions of
the parties, we remand the matter for resentencing. We initially
note the State's contention that defendant waived appellate review
by failing to object at the sentencing hearing. However, we have
previously held that defendant need not object to the prior record
level calculation to preserve his right to appeal. See State v.
Mack, 87 N.C. App. 24, 33, 359 S.E.2d 485, 491 (1987) (“[D]efendant
was not required to object at the sentencing hearing in order to
assert the insufficiency of the [prosecutor's] remarks as a matter
of law to prove his prior convictions by a preponderance of the
evidence.”).
N.C.G.S. § 15A-1340.14 (f)(4) (2003) provides that the State
bears the burden of proving by the preponderance of the evidence
that “a prior conviction exists and that the offender before the
court is the same person as the offender named in the prior
conviction.” A defendant's prior convictions may be proven by any
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 [“DCI”], the
Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be
reliable.
G.S. § 15A-1340.14 (f) (emphasis added). See also State v. Riley,
__ N.C. App. __, __, 583 S.E.2d 379, 387 (2003).
In the instant case, the trial court found that defendant had
five prior record level points based upon one Class H or I
conviction (2 points), two misdemeanor convictions (1 point each),
plus an additional point because all the elements in the offense
for which defendant was convicted were present in a prior offense.
However, we do not find evidence in the record that would indicate
that the State carried its burden of proving each prior conviction
by a preponderance of the evidence.
First, there is no evidence in the record to prove either of
the misdemeanor convictions. The only mention of the misdemeanors
in the record is in the worksheet. See Riley, __ N.C. App. at __,
583 S.E.2d at 387 (“A statement by the State that an offender has
seven points, and thus is a record level III, if only supported by
a prior record level worksheet, is not sufficient to meet the
catchall provision found in N.C.G.S. § 15A-1340.14(f)(4)[.]”).
Second, the State failed to meet its burden of proving the
existence of the Class H felony relied upon by the trial court.
According to the worksheet, defendant was convicted on 6 December
1993 in 93 CRS 8707 of “sell or deliver cocaine.” The State cites
as evidence supporting the existence of the conviction the
testimony of Sergeant Dwayne Council of the Harnett County
Sheriff's Office. Sergeant Council testified that “we arrested you
and sent you to prison years ago for drug sales.” Sergeant Councilfurther testified that “I was in the unit then,” and that “[i]t'll
be nine years in April as far as working narcotics.” The State
contends that by cross-referencing Sergeant Council's testimony
with the worksheet, there was sufficient evidence to prove the
conviction in 93 CRS 8707. We disagree. Sergeant Council's
testimony does not mention a date of offense, a specific charge, or
provide any specific information to tie the “drug sales” to 93 CRS
8707. Thus, his testimony was not a reliable method to prove the
conviction. G.S. § 15A-1340.14(f)(4). Accordingly, we remand this
case for a resentencing hearing.
Remanded for resentencing.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).
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