An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1115

NORTH CAROLINA COURT OF APPEALS

Filed: 7 June 2005

STATE OF NORTH CAROLINA

v .                         Carteret County
                            No. 04CRS914, 03CRS52678-
ALBERT M. TAYLOR,                81, 52685
    Defendant.

    Appeal by Defendant from judgments entered 3 March 2004 by Judge Jay D. Hockenbury in Superior Court, Carteret County. Heard in the Court of Appeals 17 May 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.

    Lynne Rupp, for defendant-appellant.

    WYNN, Judge.

    To determine a defendant's prior record level, a prior conviction may be proved by a stipulation between the parties. N.C. Gen. Stat. § 15A-1340.14(f)(1) (2003). In this case, defense counsel's affirmative response to the trial court's request for stipulation was a clear stipulation to the three prior convictions. For the reasons herein, we find no error by the trial court.
    In this appeal, Defendant does not challenge the merits of his convictions for resisting, delaying, or obstructing a public officer; possession of a firearm by a felon; assault on a government officer; operating a motor vehicle to flee to elude arrest; and attempted breaking and entering. Instead, he appeals from the sentences imposed -- thirteen to sixteen monthsimprisonment on the firearm and breaking and entering charges and a consecutive term of ten to twelve months imprisonment suspended to thirty-six months probation on the remaining charges.
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    Defendant argues that the trial court erred by (1) sentencing him at Level III without sufficient proof of his prior convictions, and (2) adding an additional sentencing point for committing the offense while on probation, serving a sentence, or while on escape, when no facts were decided by a jury. We disagree.
    First, Defendant argues the trial court erred in sentencing him at Level III because the State failed to prove by a preponderance of the evidence that his conviction from South Carolina was substantially similar to corresponding North Carolina offenses. We disagree.
    During the sentencing hearing, the State submitted Defendant's record to the trial judge who determined Defendant's prior record level based on applicable sentencing points. Defense counsel then stipulated to the amount of points for the prior convictions and the prior record level.
        The Court: All right, six points and Level III for the felony. How about for the misdemeanor?

        Mr. Spence [for the State]: Record Level II.

        The Court: Number of convictions, is it five?

        Mr. Spence: Less than five.

        The Court: What does he have, three convictions, Level II for the misdemeanors? Do you stipulate to that, as the State does, Mister Wallace?
        Mr. Wallace [for the Defendant]: Yes.

While reading the sentence the trial judge stated, “the court has found by stipulation of the parties that this defendant has six points with a prior record level III for the felony and three convictions, level II, for the misdemeanor.” Defendant made no objection to this statement.
    To determine a defendant's prior record level, a prior conviction may be proved by a stipulation between the parties. N.C. Gen. Stat. § 15A-1340.14(f)(1) (2003). An affirmative statement by counsel expressing agreement with the convictions listed on the prior record level worksheet is a stipulation sufficient to prove the prior conviction or record level. State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002); State v. Hanton, 140 N.C. App. 679, 689-90, 540 S.E.2d 376, 382-83 (2000). Clear and unequivocal statements expressing agreement with, or the lack of an objection to, the items listed on a sentencing worksheet have been held to be stipulations. See State v. Morgan, 164 N.C. App. 298, 306-07, 595 S.E.2d 804, 810-11 (2004) (holding defendant had stipulated to record level where defense counsel “conceded the existence of the convictions by arguing that Defendant should be sentenced at a level III on the basis of her prior record” and “made no objection to the prior record level worksheet except to the number of points [that a] third degree homicide conviction from New Jersey should receive”).
    Defense counsel's affirmative response to the trial court's request for stipulation was a clear stipulation to the three priorconvictions.   (See footnote 1)  N.C. Gen. Stat. § 15A-1340.14(f)(1). Therefore, we hold this assignment of error is without merit.
    Defendant also argues that the trial court erred by adding an additional point for committing the felony while on probation, serving a sentence, or while on escape, when no facts were decided by a jury nor alleged in the indictment violating the holding in Blakely v. Washington, __ U.S. __, 159 L. Ed. 2d 403 (2004).
    As noted earlier, Defendant stipulated to three prior convictions totaling five points.   (See footnote 2)  An additional point was added for the offense being committed while on probation, serving a sentence, or while on escape. This brought the total to six points. Defendant was then given a Level III prior record level. A defendant is sentenced as a Level III if he has “[a]t least 5, but not more than 8 points.” N.C. Gen. Stat. § 15A-1340.14(c)(3) (2003). As Defendant's prior convictions totaled five points, the convictions alone would have put him at Level III. Thus, even assuming arguendo that the trial court erred in adding an extra point based on facts not found by the jury in violation of Blakely, the error would have been harmless since subtracting the point would still put Defendant under Level III for sentencing.
    No error.
    Judges BRYANT and JACKSON concur.
    Report per Rule 30(e).


Footnote: 1
     The out-of-state felony conviction for breaking and entering and larceny was properly classified as Class H or I conviction pursuant to section 15A-1340.14(e) of the North Carolina General Statutes. N.C. Gen. Stat. § 15A-1340.14(e) (2003).
Footnote: 2
     Defendant had two prior felony Class H or I convictions and one prior Class A1 or 1 misdemeanor conviction.

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