NO. COA03-1163
Appeal by defendant from judgment dated 9 June 2003 by Judge
E. Lynn Johnson in Cumberland County Superior Court. Heard in the
Court of Appeals 15 June 2004.
Attorney General Roy Cooper, by Assistant Attorney General
John F. Oates, Jr., for the State.
Anne Bleyman for defendant-appellant.
BRYANT, Judge.
Brian Michael Ragland (defendant) was charged with first-
degree murder by a true bill of indictment. In a separate bill of
indictment, defendant was also charged with attaining the status of
habitual felon. Defendant pled guilty to the lesser-included
offense of involuntary manslaughter and admitted his status of
habitual felon. The plea agreement provided that defendant would
plead guilty to involuntary manslaughter and habitual felon in
02 CRS 52465 and both sides would be free to argue as to the
sentence imposed as a Class C record Level IV defendant. The trial
court determined defendant's prior record level points to be eleven
and his prior record level to be IV. Defendant was thereafterdetermined to be a Class C felon with a record Level IV and
sentenced within the presumptive range of 133 to 169 months
imprisonment. Defendant appeals.
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On appeal, defendant raises three issues of whether: (I)
defendant's habitual felon indictment failed to sufficiently allege
three prior felony convictions; (II) the trial court improperly
calculated his prior record level; and (III) the habitual felon
statute is unconstitutional.
I & III
A defendant who pleads guilty to a crime has a limited
appellate review as a matter of right to certain narrow issues
related to sentencing, to review of the denial of a motion to
suppress, or to review of the denial of a motion to withdraw a
plea.
State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867,
870,
disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
Otherwise, review may be obtained only by a petition for a writ of
certiorari. N.C.G.S. § 15A-1444(e) (2003). Because arguments I
and III do not challenge the sentence, the denial of a motion to
suppress, or the denial of a motion to withdraw the plea, defendant
does not have an appeal of right as to those issues.
II
We now address defendant's remaining argument, which is his
contention the trial court erred in determining his prior record
level. Defendant argues the State failed to prove the existence of
the convictions listed in his prior record level worksheet and thathe did not stipulate to any prior record level.
N.C. Gen. Stat. § 15A-1340.14 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.”
N.C.G.S. § 15A-1340.14(f) (2003). 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, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
reliable.
N.C.G.S. § 15A-1340.14(f). A “worksheet, prepared and submitted by
the State, purporting to list a defendant's prior convictions is,
without more, insufficient to satisfy the State's burden in
establishing proof of prior convictions.”
State v. Eubanks, 151
N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002). In
Eubanks, this
Court upheld the defendant's sentence based on the submission of a
prior level worksheet where the defendant failed to object at the
time of its offer and where “the statements made by the attorney
representing defendant . . . may reasonably be construed as a
stipulation by defendant that he had been convicted of the charges
listed on the worksheet.”
Id. at 506, 565 S.E.2d at 743.
Here, the State submitted a prepared worksheet listing the
purported prior convictions of defendant. The trial courtsubsequently noted that “the State's worksheet does reflect, in
respect to the habitual felon status, that [defendant] has
accumulated eleven points and thus is a prior record level four.
I assume there's no issue about that?” In response, defense
counsel stated, “Yes, sir, that's correct.” As we believe this to
be, in effect, a stipulation to the record, we overrule this
assignment of error.
See Eubanks, 151 N.C. App. at 505, 565 S.E.2d
at 742. Accordingly, we find no error.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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