An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-508
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Filed: 6 January 2004


         v.                        Harnett County
                                Nos. 02 CRS 1736, 50103

    Appeal by defendant from judgment entered 1 November 2002 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 22 December 2003.

    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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