An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.



Filed: 3 August 2004

v.                        Durham County
                            Nos. 02 CRS 010308
                                02 CRS 045869

    Appeal by defendant from judgment dated 15 January 2003 by Judge Stafford G. Bullock in Superior Court, Durham County. Heard in the Court of Appeals 18 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    McGEE, Judge.

    Troy Lee Howard (defendant) pled guilty on 15 January 2003 to possession with intent to distribute a counterfeit controlled substance in violation of N.C. Gen. Stat. § 90-95(a)(2) and of attaining the status of habitual felon. Pursuant to a plea agreement, defendant was sentenced to a minimum term of 101 months and a maximum term of 131 months in prison. Defendant appeals.     The State's evidence at trial tended to show that on 10 April 2002, Officer Eric Hoagland (Officer Hoagland) of the Durham Police Department responded to a report of a disturbance at the Town & Country convenience store on East Lawson Street. Officer Hoaglandarrived at the store and talked to Janice Simmons (Simmons). Officer Hoagland noticed that Simmons was very upset and that there was minor swelling on her face around her left eye. Simmons stated that defendant hit her. Simmons gave Officer Hoagland defendant's name and description, and told Officer Hoagland the direction in which defendant had walked.
    Shortly thereafter, Officer M.D. Gottlieb (Officer Gottlieb) located defendant. Officer Gottlieb testified that he asked defendant if he objected to being patted down for weapons. Defendant consented and Officer Gottlieb proceeded with the pat- down and discovered what felt like "a hard item in [defendant's] pocket." When Officer Gottlieb asked defendant about the item, defendant replied that it was "just a bottle." With defendant's consent, Officer Gottlieb examined the bottle and discovered two substances. One of the substances was an off-white rock-like substance and had the appearance of crack cocaine. The other substance had the appearance of heroin. Both substances were field-tested for illegal controlled substances. The test results were negative, and subsequent testing confirmed these results. Defendant was arrested for assault on a female and for possession with intent to sell and deliver a counterfeit controlled substance.
    Prior to the date of the offenses charged in this case, defendant had been convicted of three felonies. Defendant was convicted of felony larceny from a person on 26 May 1992, felony possession of a schedule II substance on 7 November 1994, and felony sale of a counterfeit controlled substance on 7 February2001. The State used evidence of these prior convictions in determining that defendant was an habitual felon. However, these three convictions were not included in calculating defendant's prior record level.
    Defendant first argues in assignment of error number two that the trial court erred in its findings regarding defendant's prior record level and prior record points. Essentially, defendant argues that the State's evidence supporting these convictions was insufficient. Defendant contends that the State bears the burden of proving prior convictions by a preponderance of the evidence. Defendant asserts that such burden was not met in this case because the State did not offer sufficient evidence of defendant's prior convictions, such as testimonial evidence or official records, to find defendant to have a prior record level VI. Defendant further argues that the State's sole evidence of defendant's prior convictions was the record level worksheet, which the State prepared. Defendant contends that this worksheet alone was insufficient evidence of his prior convictions.
    We note that the State indeed presented a record level worksheet. However, we need not decide whether the worksheet alone constituted sufficient evidence of prior convictions because it was not the only evidence presented. In fact, defendant agreed to his status as an habitual felon and to his potential prison term. Pursuant to N.C. Gen. Stat. § 15A-1340.14(f)(2003), the following methods can be used to determine a defendant's prior record level for sentencing purposes:        (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.

    In the case before us, defendant entered a plea agreement in which he agreed to "[p]lead guilty to Poss[ession] With Intent to Sell and Deliver a Counterfeit Controlled Substance. Admit status of Habitual Felon [and] serve minimum of 101 months, maximum of 131 months active[.]"
    This Court has held that when a defendant agrees to a prior record level as part of a plea agreement, there is no need to inquire into other evidence of a defendant's convictions or record level. In State v. Hamby, our Court stated the following:
        In her plea agreement, defendant admitted that her prior record level was II, that punishment for the offense could be either intermediate or active in the trial court's discretion and that the trial court was authorized to sentence her to a maximum of forty-four months in prison. By these admissions, defendant mooted the issues of whether her prior record level was correctly determined, whether the type of sentence disposition was authorized and whether the duration of her prison sentence was authorized.

129 N.C. App. 366, 369-70, 499 S.E.2d 195, 197 (1998). Accordingly, our Court dismissed the defendant's appeal. Id. at 370, 499 S.E.2d at 197. Unlike Hamby, in the case before us, defendant did not admit his prior record level. However, he did agree to a specific sentence, which is the very thing a prior record level is meant to determine. Thus, as in Hamby, by agreeingto his sentence, defendant mooted the issue of whether his prior record level was determined correctly. Accordingly, we overrule this assignment of error.
    In assignment of error number one, defendant argues that the trial court erred by imposing defendant's sentence in the habitual felon case file, rather than imposing the sentence in the underlying felony file. Although the trial court properly determined defendant's prior conviction level and properly imposed a sentence in open court, the written judgment and commitment does not accurately reflect the sentence imposed. For the substantive criminal offense in this case, the trial court entered judgment in the habitual felon file, file number 02 CRS 10308. However, being an habitual felon is not a criminal offense, but rather is an enhancement applied to the sentence on the predicate offense. See State v. Penland, 89 N.C. App. 350, 351, 365 S.E.2d 721, 722 (1988). The predicate felony, not its enhancement, should be the lead file number. In fact, the State concedes that the trial court should have listed the predicate felony offense as the lead file number. Accordingly, we remand for correction of this clerical error. See State v. Coleman, 161 N.C. App. 224, 237, 587 S.E.2d 889, 897 (2003) (remanding to the trial court for correction of a clerical error where the trial court marked the improper verdict on a form); State v. Murray, 154 N.C. App. 631, 639, 572 S.E.2d 845, 850 (2002) (remanding to the trial court for correction of improper dates on judgments), cert. denied, 357 N.C. 467, 586 S.E.2d 778 (2003).     The State brings another error to the attention of this Court. Although the trial court found defendant guilty of a Class I felony that was enhanced to Class C by defendant's habitual felon status, the trial court failed to mark the appropriate block on the judgment and commitment form. Block five should have been marked indicating that the trial court "adjudges the defendant to be an Habitual Felon to be sentenced as a Class C pursuant to Article 2a of N.C.G.S. Chapter 14." We also remand for correction of this clerical error.
    We remand this case to the trial court for correction of clerical errors in accordance with this decision.
    Affirmed; remanded for correction of clerical errors.
    Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).

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