An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-945


Filed: 4 May 2004

                                Durham County
         v.                        Nos. 02CRS014028; 018952                                     050758; 052499 and
BERNADETTE TOOMER                        052500

    Appeal by defendant from judgments entered 17 December 2002 by Judge A. Leon Stanback, Jr. in Durham County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General John P. Scherer, II, for the State.

    Paul T. Cleavenger for defendant-appellant.

    HUNTER, Judge.

    Bernadette Toomer (“defendant”) pled guilty to two counts of habitual felon status, felonious breaking or entering, felonious larceny, possession of a stolen motor vehicle, misdemeanor larceny, fleeing to elude arrest, failure to report an accident, resisting a public officer, and driving while impaired. All convictions except for driving while impaired were consolidated for judgment and defendant was sentenced to 168 to 211 months. Defendant was separately sentenced to twenty-four months for driving while impaired.
    Defendant's sole contention is that the court erred in determining the prior record level. She argues the court erroneously assigned one point to an offense, transportation ofunsealed liquor in violation of N.C. Gen. Stat. § 18B-401(a), which is listed on the prior conviction worksheet as a Class 1 misdemeanor but which is actually a Class 3 misdemeanor. See N.C. Gen. Stat. § 18B-401(a) (2003). Prior record level points are not assigned to a Class 3 misdemeanor. See N.C. Gen. Stat. § 15A- 1340.14(b)(5) (2003) (only Class A1 and Class 1 non-traffic misdemeanor offenses, plus certain inapplicable traffic offenses, are assigned one point for the purpose of determining prior record level). Consequently, defendant's total prior record level points should be sixteen instead of seventeen as computed by the court. Her prior record level should be level V instead of level VI.
    The State concedes that the court incorrectly assigned a point to the offense but argues defendant waived the error by stipulating to the court's calculation of prior record level points. The State also argues the error is harmless because the court could have assigned a point for a present offense having all of the elements of a prior offense.
    We are not persuaded by the State's arguments. Any stipulation as to the number of record points attributable to an offense and as to the prior record level involves a question of law. As such it is not binding on the courts. See Carringer v. Alverson, 254 N.C. 204, 208, 118 S.E.2d 408, 411 (1961). The trial court did not find that an offense for which defendant was being sentenced contained all of the elements of the prior offense. It is not within our province as a reviewing court to make findings or to substitute our judgment for that of the sentencing court. SeeState v. Vandiver, 326 N.C. 348, 353-355, 389 S.E.2d 30, 33-35 (1990).
    Because of the incorrect determination of the prior record level, this matter is remanded to the trial court for re- sentencing.
    Remanded for resentencing.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***