STATE OF NORTH CAROLINA
v. Edgecombe County
No. 01 CRS 50845
KENNETH EARL VICK
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Paul F. Herzog for defendant-appellant.
THORNBURG, Judge.
On 4 September 2001, defendant Kenneth Earl Vick was indicted
on charges of second degree rape and second degree sexual offense.
On 9 September 2003, defendant was convicted on both counts. At
the plea hearing, the trial court found that defendant had 20 prior
record level points. The trial court then sentenced defendant as
a Class C, Level VI felon to a term of 168 to 211 months in the
custody of the North Carolina Department of Corrections. Defendant
appeals.
Defendant's sole argument on appeal is that the trial court
erred in sentencing him as a prior record level VI felon.
Defendant contends that the State failed to prove the existence ofthe convictions listed in his prior record level worksheet, and
that he did not stipulate to any prior record level.
After careful review of the record, briefs and contentions of
the parties, we find no error. 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. Gen. Stat. . 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.
Id. See also State v. Riley, 159 N.C. App. 546, 556, 583 S.E.2d
379, 386 (2003).
In the instant case, the following colloquy occurred:
THE COURT: Do you have a worksheet, Mr.
Graham?
THE STATE: Your honor, I'd like to go over that with
counsel.
THE COURT: Have you seen the worksheet, Mr. Godwin?
[DEFENDANT'S COUNSEL]: Yes, sir.
THE COURT: And it's a prior record level VI, is that
correct?
[DEFENDANT'S COUNSEL]: Yes, sir.
THE COURT: And I see assault on a female multiple times
on here, is that right?
[DEFENDANT'S COUNSEL]: Yes, sir.
THE COURT: I see seven convictions for assault on a
female and other convictions for assault on law
enforcement officer, communicating threats, assault on a
child and so forth. Have you been over this? Is this
correct?
[DEFENDANT'S COUNSEL]: I did not have the one
about assault on a child.
The issue here is whether the comments by defendant's attorney
constitute a "stipulation" to the prior convictions listed on the
worksheet submitted by the State. We find State v. Eubanks, 151
N.C. App. 499, 565 S.E.2d 738 (2002) persuasive. In Eubanks, the
trial court asked counsel if he had seen the prior record level
worksheet, and if he had any objections to it. Counsel stated that
he had no objection. Id. at 505, 565 S.E.2d at 742. The Court
noted that “[t]here is no question that 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.” Id. (citing
State v. Hanton, 140 N.C. App. 679, 689, 540 S.E.2d 376, 382
(2000)). However, the trial court concluded that “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.” Eubanks, 151
N.C. App. at 505, 565 S.E.2d at 742; see also State v. Hanton, 140
N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000)(indicating thatdefense counsel's statement that he did not disagree with the
worksheet constituted an admission by defendant that he had been
convicted of the other charges appearing on the worksheet).
Similarly, we find that counsel's statement that the worksheet
was “correct” constituted an admission that he had been convicted
of the charges listed on his prior record level worksheet. We can
discern no meaningful difference between counsel's agreement here
that the worksheet was correct and counsel's statement in Eubanks
that he had no objection to the worksheet. Furthermore, the only
conviction not stipulated to by counsel was assault on a child.
However, this conviction was part of a group of convictions entered
on 2 April 1990. Thus, any of the offenses on this date could have
been used to calculate defendant's prior record level, and the
assault on a child conviction was not needed in the prior record
level calculation. N.C. Gen. Stat. . 15A-1340.14(d) (2003).
Accordingly, we find no error.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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