An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
No. 03 CRS 050173
02 CRS 054559
03 CRS 002859
KEVIN HENRY WILLIAMS A/K/A
KELVIN HENRY WILLIAMS
Appeal by defendant from judgment entered 26 August 2003 by
Judge W. Allen Cobb in Wayne County Superior Court. Heard in the
Court of Appeals 3 November 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ted R. Williams, for the State.
Duncan B. McCormick for defendant.
Defendant (Kevin Henry Williams) appeals from judgment
imposing sentence for felony possession of a stolen 1999 Ford
Expedition and felony possession of a stolen 1986 Honda. Pursuant
to a plea arrangement, defendant pled guilty to both charges and
admitted his status as an habitual felon. Sentencing was left in
the discretion of the trial judge. The trial court determined that
defendant should be sentenced as an habitual felon with a Level III
prior record level and found three aggravating factors. The two
substantive offenses were consolidated for judgment, and defendant
was sentenced as an habitual felon to an aggravated term of 145 to
183 months imprisonment. Defendant contends the trial court erred by determining that
he was a Level III prior record level offender because the State
did not present sufficient evidence of his prior convictions.
Defendant has also filed a Motion for Appropriate Relief pursuant
to N.C.G.S. § 15A-1415(b)(7) and (b)(8), challenging the
constitutionality of his sentence under Blakely v. Washington, 542
U.S. 296, 159 L. Ed. 2d 403 (2004). We hold that defendant is
entitled to a new sentencing hearing to properly determine his
prior record level and that defendant must also be resentenced in
accordance with Blakely.
We first address defendant's argument that the trial court
erred by finding that he should be sentenced as a Level III prior
record level offender. We conclude that there was insufficient
evidence to support this finding.
There 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. State v. Eubanks, 151
N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002). Rather, a prior
conviction must be proved by one of the following methods: (1)
[s]tipulation of the parties[,] (2) [a]n 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[, or]
(4) [a]ny other method found by the court to be reliable. N.C.G.S. § 15A-1340.14(f) (2003). This Court has held that an
expression of agreement with the items listed on a sentencing
worksheet may constitute a stipulation by a defendant to the prior
record level asserted by the State. See State v. Morgan, 164 N.C.
App. 298, 595 S.E.2d 804 (2004).
In the instant case, the prosecution presented a prior record
level worksheet assigning defendant five total points: two points
for a prior Class H or I felony conviction, one point each for two
prior Class A1 or 1 misdemeanor convictions, and one point for
committing the offenses for which he was being sentenced while on
probation, parole, or post-release supervision. In addition, the
State offered certified copies of the judgments supporting
defendant's status as an habitual felon. When moving for the
admission of the judgments, the prosecutor stated, I think the
record reflects that, not including these indict--these cases[,]
he's still a--prior record level three, so these other convictions
are not reflected. The trial court inquired as to whether
defendant wanted to be heard with respect to the admission of the
judgments supporting defendant's status as an habitual felon, and
defense counsel responded, I do not, your Honor. We would not be
contesting those. The trial court did not seek, and the defendant
did not offer, a stipulation to the prior record level or the
convictions listed on the worksheet.
In his brief to this Court, defendant contends that the State
did not present sufficient evidence to establish that he had been
convicted of the two misdemeanors listed on the worksheet. Havingcarefully reviewed the record, we conclude that defendant did not
stipulate to his prior record level or to the misdemeanor
convictions. Further, we find no other evidence in the record
which supports the State's assertion that defendant was convicted
of the two misdemeanors listed on the prior record level worksheet.
Because subtracting the points assigned for these misdemeanors
would result in a reduction of his prior record level, see N.C.G.S.
§ 15A-1340.14(c) (2003), defendant is entitled to a new sentencing
We next address defendant's Motion for Appropriate Relief, in
which he asserts that his sentence is unconstitutional under
, 542 U.S. 296, 159 L. Ed. 2d 403, because the trial court
enhanced his sentence based on aggravating factors which were not
submitted to a jury and were not admitted by defendant. Because it
was filed while defendant's appeal was pending, this Court is the
appropriate forum for the motion, and the issue it raises may be
determined on the basis of the materials before us. See
§ 15A-1418(a) and (b) (2003). Defendant argues he is entitled to
a new sentencing hearing pursuant to Blakely
. We agree.
In the instant case, the trial court found the following
2. The defendant joined with more than one other
person in committing the offense and was not
charged with committing a conspiracy.
. . . .
12. The defendant committed the offense while on pre-
trial release on another charge.
The trial court sentenced defendant as an habitual felon, at the
top of the aggravated range, to a term of 145 to 183 months.
Aggravating factor number two was not found beyond a reasonable
doubt by a jury, and it was not admitted by defendant. The
findings associated with aggravating factor two, standing alone,
require that defendant be resentenced. Defendant's Motion for
Appropriate Relief is granted, and this case is remanded for
resentencing in conformity with the rulings in State v. Allen, ___
N.C. ___, ___ S.E.2d ___ (No. 485PA04) (filed 1 July 2005), and
Blakely, 542 U.S. 296, 159 L. Ed. 2d 403.
Our holding with respect to the foregoing issues makes it
unnecessary to address defendant's remaining arguments on appeal.
This matter is remanded for a new sentencing hearing. On remand,
the trial court shall determine defendant's prior record level
based on evidence of prior convictions as provided in G.S. § 15A-
1340.14(f), and shall ensure that defendant's sentence comports
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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