STATE OF NORTH CAROLINA Durham County
No. 03 CRS 05666;
v
.
No. 03 CRS 045801;
No. 03 CRS 12321;
No. 03 CRS 13568-69;
STEVEN EARL RIGGS No. 03 CRS 44383;
No. 03 CRS 45801;
No. 03 CRS 45889;
No. 03 CRS 51560-61
Attorney General Roy Cooper, by Associate Attorney General
Kimberly Elizabeth Gunter, for the State.
George E. Kelly, III, for defendant.
LEVINSON, Judge.
Defendant (Steven Earl Riggs) appeals from judgment entered 18
December 2003 upon defendant's pleas of guilty. We affirm.
On 18 December 2003 defendant pled guilty to five felonies,
including attempted first degree burglary, and to the misdemeanors
of assault with a deadly weapon and hit and run. In addition,
defendant admitted his status as an habitual felon. At this
hearing the trial court followed the procedural mandates of
N.C.G.S. § 15A-1022, questioning defendant regarding the
voluntariness of his pleas. The State proffered a factual basis
for defendant's pleas and tendered a prior record level worksheet,form AOC-CR-600. According to the worksheet, defendant had
sufficient prior record points to be categorized as a level IV
offender. At sentencing, defense counsel addressed the trial court
as follows:
THE COURT: Do you want to be heard on the
sentence?
[DEFENSE COUNSEL]: Yes, Judge. Let me -- if
you look at Mr. Rigg's worksheet, it's a
lengthy one, which is why we're here on the
habitual felon. You'll find that the vast
majority of his charges are property crimes.
This is a man who in his late teens and
early twenties got into a lot of trouble, and
it was at a time when we might have saved this
man from what he's facing today. He was never
-- when he was arrested for all these charges,
he was never given an opportunity to be on
probation or to straighten things out. He
went to prison. He spent eight years in
prison during his twenties, late teens, early
twenties.
The man has become extremely
institutionalized. He was released into the -
- into society without any sort of halfway
house or anything of that type. He received
no drug treatment or anything while he was in
prison, no training for a trade or anything.
Found himself out on the street. And frankly,
Judge, he couldn't cope. And so he turned to
the one thing that he knew how to do, which
was drugs and crimes.
Again, even though there are some violent
crimes in here, Mr. Riggs is not, from what
I've dealt with him, a violent man. He's a
drug addict, and he -- he supported that with
property crimes.
The reason I'm putting this out, Judge,
is, I think that Mr. Riggs has recognized and
I think the State has been extremely generous
with the offer that he has in consolidating
all these habituals, and Mr. Riggs realizes
that -- that he cannot cope with the rest ofhis life with this kind of -- of history and
background.
We are asking the Court to accept the
plea, we're asking the Court to -- oh, Mr.
Riggs, this last time that he's been in jail,
he has entered the STARR Program, will
graduate tomorrow from the STARR Program. And
if it is within the Court's power, we're
asking that the Court hold Mr. Riggs in the
county jail to finish the GRAD Program, which
I believe starts the 1st of the year, and
would be completed the end of January.
. . . .
If he can be given the treatment he needs
and the training he needs, in ten years he
might be able to come out, Judge, and be a
productive citizen instead of the problem that
he has been for so long.
The trial court accepted defendant's pleas and sentenced
defendant as a prior record level IV offender. Defendant was
sentenced within the presumptive range to 120 - 153 months
imprisonment.
On appeal defendant argues the trial court erred by (1)
failing to conduct a competency hearing following defendant's court
ordered evaluation at Dorothea Dix Hospital, as required by
N.C.G.S. § 15A-1002(b); (2) accepting his pleas to misdemeanor
assault with a deadly weapon and attempted first degree burglary
because there was insufficient evidence to support these charges;
and (3) sentencing defendant as a level IV offender because the
State failed to prove defendant's prior convictions.
___________________________________
Defendant's first argument on appeal challenges the trial
court's acceptance of his guilty pleas due to the fact the trialcourt failed to hold a competency hearing following his court
ordered evaluation. Defendant contends he had a statutory right,
pursuant to N.C.G.S. § 15A-1002(b) (2003), to a competency hearing
following his evaluation at Dorothea Dix Hospital.
On 18 July 2003, several months prior to tendering his guilty
pleas, defendant moved for a court ordered evaluation of his
competency to stand trial. Defendant's motion alleged that:
Since Mr. Riggs was returned to the Durham
County Jail he has seemed more and more out of
touch with reality. He appears to be
delusional and has mentioned suicidal ideation
to his attorney. He has shown little or no
desire to help prepare his defense and
expresses the idea that everything will be
fine, just wait and see. He does not seem to
understand the seriousness of the charges
against him and appears to believe it will all
go away with time.
On 24 July 2003 Judge Stanback ordered that defendant be
evaluated at Dorothea Dix Hospital. The record includes no further
information pertaining to defendant's competency. As a result,
this Court is not privy to the results of the evaluation, if one
was conducted, and/or whether defendant was provided a hearing on
competency following such evaluation.
N.C.G.S. § 15A-1444 (2003) specifies the grounds which give
rise to an appeal as of right from entry of a guilty plea and
provides in pertinent part:
(a1) A defendant who has been found guilty,
or entered a plea of guilty or no contest to a
felony, is entitled to appeal as a matter of
right the issue of whether his or her sentence
is supported by evidence introduced at the
trial and sentencing hearing only if the
minimum sentence of imprisonment does not fall
within the presumptive range for thedefendant's prior record or conviction level
and class of offense. Otherwise, the
defendant is not entitled to appeal this issue
as a matter of right but may petition the
appellate division for review of this issue by
writ of certiorari.
(a2) A defendant who has entered a plea of
guilty or no contest to a felony or
misdemeanor in superior court is entitled to
appeal as a matter of right the issue of
whether the sentence imposed:
(1) Results from an incorrect finding of
the defendant's prior record level
under G.S. 15A-1340.14 or the
defendant's prior conviction level
under G.S. 15A-1340.21;
(2) Contains a type of sentence
disposition that is not authorized
by G.S. 15A-1340.17 or G.S. 15A-
1340.23 for the defendant's class of
offense and prior record or
conviction level; or
(3) Contains a term of imprisonment that
is for a duration not authorized by
G.S. 15A-1340.17 or G.S. 15A-1340.23
for the defendant's class of offense
and prior record or conviction
level.
. . . .
(e) Except as provided in subsections (a1)
and (a2) of this section and G.S. 15A-979, and
except when a motion to withdraw a plea of
guilty or no contest has been denied, the
defendant is not entitled to appellate review
as a matter of right when he has entered a
plea of guilty or no contest to a criminal
charge in the superior court, but he may
petition the appellate division for review by
writ of certiorari. . . .
The failure of a trial court to hold a post-evaluation
competency hearing is not expressly listed in G.S. § 15A-1444 as an
issue for which defendant has an appeal of right following entry of
a guilty plea. Defendant did not move to withdraw his guiltypleas. See G.S. § 15A-1444(e). Arguably, defendant does not have
the right to appellate review of this issue on direct appeal, and
he has not sought review in this Court of this issue by means of a
petition for writ of certiorari or by way of a motion for
appropriate relief. Moreover, the current record is not sufficient
to review the merits of defendant's assignment of error.
We dismiss this assignment of error without prejudice to
defendant's ability to bring a motion for appropriate relief in the
trial division pursuant to N.C.G.S. § 15A-1411, et seq. (2003)
should he have grounds to do so.
___________________________________
Defendant's second and third arguments contest the sufficiency
of the evidence supporting defendant's convictions of attempted
first degree burglary and misdemeanor assault with a deadly weapon.
According to G.S. § 15A-1444(a1), (a2) and (e), defendant has no
right to appeal the sufficiency of the evidence of these offenses
because he pled guilty to the same. Defendant's second and third
assignments of error are dismissed.
____________________________________
We next turn to defendant's final argument that the trial
court erred in sentencing defendant as a level IV offender.
Defendant contends the State failed to meet its burden of proving
defendant's prior convictions under N.C.G.S. § 15A-1340.14(f)
(2003). Because we hold defense counsel's statements to the trial
court constitute a stipulation to defendant's prior convictions, we
disagree. N.C.G.S. § 15A-1340.14(f) provides in pertinent part:
A prior conviction shall be proved 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.
The State bears the burden of proving, by a
preponderance of the evidence, that a prior
conviction exists . . . .
“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) (citation omitted).
While a worksheet alone is insufficient proof of a defendant's
prior convictions, his prior convictions may be proved by
stipulation. See G.S. § 15A-1340.14(f)(1) (“A prior conviction
shall be proved by . . . [s]tipulation of the parties.”). In
Eubanks, defense counsel's response to the trial court that he had
no objection to the worksheet was held to be a stipulation to
defendant's prior convictions listed on the worksheet. Eubanks,
151 N.C. App. at 506, 565 S.E.2d at 743. “This Court has held that
a defendant can stipulate to a prior record level through a
colloquy between defense counsel and the trial court.” State v.
Jeffrey, ___, N.C. App. ___, ___, 605 S.E.2d 672, 675 (2004). In the instant case, defendant did not object to the
worksheet, to any conviction listed thereon, or to the calculation
of points establishing him as a level IV offender. In fashioning
his remarks to the trial court for sentencing purposes, defense
counsel relied, in large measure, on the worksheet submitted by the
prosecutor. Defense counsel asked the court to “look” at the
offenses enumerated on the worksheet, and acknowledged the
worksheet was “lengthy”. He characterized the “vast majority” of
his client's offenses on the worksheet as “property crimes.”
Defense counsel stated that, even though “there are some violent
crimes [listed in the worksheet], defendant was not “a violent
man.” Again referring to the worksheet, defense counsel stated
that defendant supported his drug addiction with “property crimes.”
Because defense counsel affirmatively acknowledged defendant's
prior convictions listed on the worksheet, utilizing the same in
his arguments before the trial court, his collective statements to
the trial court are reasonably construed to be an admission of
defendant's prior convictions. We hold defendant has stipulated to
the prior convictions listed on the worksheet. This assignment of
error is overruled.
Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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