An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1389


Filed: 6 December 2005


    v.                            Wake County
                                No. 03 CRS 10750

    Appeal by defendant from judgment entered 4 March 2004 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 10 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.

    GEER, Judge.

    On 21 January 2004, defendant Bernard M. Williams entered into a plea agreement with the State. Pursuant to the terms of the plea agreement, defendant pled guilty to breaking or entering and felony larceny, the charges were consolidated for judgment, and defendant was to be sentenced to a term of 9 to 11 months imprisonment. At the plea hearing, the trial court accepted defendant's plea, found that he had 9 prior record level points, and sentenced him as a Class H, Level IV felon to a term of 9 to 11 months imprisonment. Defendant appeals.
    Defendant argues that the trial court erred in sentencing him as a prior record level IV when the State failed to prove theexistence of the convictions listed in his prior record level worksheet and when he did not stipulate to any prior record level. Based on the Supreme Court's recent decision in State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005), we disagree.
    N.C. Gen. Stat. § 15A-1340.14(f) (2003) 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." 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).
    The State in this case handed the trial court a worksheet filled out by the prosecutor and asserted that defendant had a prior record level of IV. See Riley, 159 N.C. App. at 557, 583 S.E.2d at 387 ("The State simply handed the trial court a worksheet filled out by the prosecutor and made the unsupported statements identified above as to defendant's prior record level."). A statement by the State that an offender has 9 points, and thus is a prior record level IV, if only supported by a prior record levelworksheet, "is not sufficient to meet the catchall provision found in N.C.G.S. § 15A-1340.14(f)(4), even if uncontested by defendant." Id. See also Alexander, 359 N.C. at 827, 616 S.E.2d at 917 ("There is no doubt that a mere worksheet, standing alone, is insufficient to adequately establish a defendant's prior record level."). The State acknowledges that it presented none of the types of evidence set forth in N.C. Gen. Stat. § 15A-1340.14(f)(2), (3), but argues that defendant stipulated to his prior record level.
    In Alexander, our Supreme Court held that a defendant had stipulated under N.C. Gen. Stat. § 15A-1340.14(f)(1) to the worksheet when defense counsel stated, "'up until this particular case he had no felony convictions, as you can see from his worksheet,'" holding that "[t]his statement indicates not only that defense counsel was cognizant of the contents of the worksheet, but also that he had no objections to it." 359 N.C. at 830, 616 S.E.2d at 918. Further, the Court held that the trial court's calculation of the defendant's prior record level could include reliance upon the plea agreement between defendant and the State. Id. at 832, 616 S.E.2d at 919. While defense counsel in this case was not as explicit in referring to the worksheet, we believe that the same circumstances present in Alexander are present in this case.
    First, defendant bargained for the State's recommendation of precisely the term of imprisonment that defendant received _ a term that presumed that defendant had a prior record level of IV. During the plea colloquy, the trial court specifically confirmed defendant's agreement to that term:    THE COURT: The prosecutor and your lawyer have informed the Court that these are all the terms and conditions of your plea: The cases will be consolidated for judgment, receive an active sentence, minimum of nine months, maximum of eleven months in the custody of the North Carolina Department of Corrections.

    Is this correct as being your full plea arrangement?

    THE DEFENDANT: Yes, sir.

    THE COURT: Do you now personally accept this arrangement?

    THE DEFENDANT: Yes, sir.

    Second, we believe that defense counsel's remarks during sentencing, when read in their entirety, indicate that counsel was, like Alexander, referring to the worksheet and effectively stipulating to the prior record level. Counsel stated:
    . . . History gone by five, six years ago, as far as offenses, and we go from misdemeanors to essentially to what you see now before you. He has confronted charges in Moore County.

    I talked to [defendant] the first time I got on this matter back in August. He does appear to be _ here's what your life has been to this date, here's what I did. He's owned up to it. That's where he stands before you now. He has indicated to me that he's trying to break up his history, because it's leading to a lot more serious stuff even than this, as bad as this is.

    He has no _ he's given me, to give to you, no explanation as to why this happened, but he has spoken to me in terms of confronting you, confronting the rest of the courts where everything's been pending, owning up to his responsibility, doing whatever he has to do in response to punishment and trying to turn his life around.
Defendant himself then stated: "I said the fact that I did it, I'm sorry for it. I'm just trying to get my life together. I mean, that's why I have all these charges. I accept my punishment."
    Defense counsel's description of defendant's history is consistent with the worksheet, which shows a list of misdemeanors followed by three felony convictions in 2003 and various pending felony charges that all occurred in 2003, including three charges in Moore County. Based on the context of the statement, we believe counsel's reference to "what you see now before you" was a reference to the convictions and pending charges on the worksheet before the trial court. We also believe that counsel's discussion of defendant's desire "to break up his history" because it was leading "to a lot more serious stuff even than this, as bad as this is" was a second reference to the worksheet _ especially in light of the fact that the charges before the trial court involved only one incident and in light of counsel's subsequent reference to defendant's accepting responsibility in "the rest of the courts where everything's been pending."
    Under Alexander, the plea bargain, including defendant's express acceptance of the proposed term of imprisonment, and defense counsel's argument were sufficient to establish that "the trial court's calculation of defendant's prior record level was based upon a method 'found by the court to be reliable.'" Id. (quoting N.C. Gen. Stat. § 15A-1340.14(f)(4)). Accordingly, we affirm.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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