An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-266


Filed: 19 July 2005


v .                         Wayne County
                            No. 03 CRS 050173
                             02 CRS 054559
                             03 CRS 002859

    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.

    LEVINSON, Judge.

    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 hearing.
    We next address defendant's Motion for Appropriate Relief, in which he asserts that his sentence is unconstitutional under Blakely, 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 N.C.G.S. § 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 aggravating factors:
    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 with Blakely and Allen.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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