An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1612


Filed: 2 August 2005


         v.                        Rowan County
                                No. 02CRS052985

    Appeal by defendant from judgment entered 16 October 2003 by Judge W. Erwin Spainhour in Rowan County Superior Court. Heard in the Court of Appeals 18 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Karen A. Blum, for the State.

    Moshera H. Mohamed for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was charged with one count of assault with a deadly weapon with intent to kill inflicting serious injury and two counts of assault with a deadly weapon with intent to kill. Defendant pled guilty, pursuant to a plea agreement, to the single count of assault with a deadly weapon with intent to kill inflicting serious injury. Under the terms of the agreement, the State agreed to drop the remaining assault charges. The evidence presented at the time of the plea tended to show that on 22 April 2002, defendant traveled with Daniel Tolliver and Kenneth Lark to the residence of Lark's girlfriend. Once there, defendant inexplicably shot Tolliver in the throat, both arms and back with a .45 caliberhandgun. Tolliver escaped from the car, crawled away and hid in a creek. Tolliver subsequently flagged down a passing vehicle while defendant and Lark searched for him.
    After defendant stipulated to his prior record level, the trial court sentenced defendant, as a prior record level II offender, to a presumptive term of 90-117 months imprisonment. Defendant appeals.
    Upon motion by the State, this Court dismisses defendant's appeal as untimely. See State v. Morris, 41 N.C. App. 164, 254 S.E.2d 241 (noting that absent timely notice of appeal, this Court does not acquire proper jurisdiction), appeal dismissed and cert. denied, 297 N.C. 616, 267 S.E.2d 657 (1979). However, in our discretion, we elect to treat defendant's failed appeal as a petition for writ of certiorari, and to that end, allow the petition to review the merits of defendant's argument(s). See N.C.R. App. P. 21(a)(1).


    Defendant argues that the trial court erred in calculating his prior record level in that the court included a prior out-of-state juvenile adjudication. Defendant concedes that he “reluctantly stipulated to a prior felony conviction as a minor in New Jersey.” Defendant, however, argues that he “clearly disagreed” with the conviction's use in calculating his prior record level. We disagree.
    It is well settled that a prior conviction may be proved by stipulation or any other reliable means. N.C. Gen. Stat. § 15A-1340.14(f)(2003). However, “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).
    In Eubanks, the State submitted a prior record level worksheet listing five prior convictions to the court. Id. at 504, 565 S.E.2d at 742. The trial court subsequently questioned defense counsel as to whether he had seen the worksheet and whether counsel had any objections to that worksheet. Counsel replied, “No, sir.” Id. at 504-05, 565 S.E.2d at 742. The trial court, then, went on to sentence defendant as a prior record level IV. On appeal, defendant argued that the State failed to adequately prove his prior convictions under N.C. Gen. Stat. 15A-1340.14(f). This Court found no error, concluding that defense counsel's responses to the court's questions “may reasonably be construed as a stipulation by defendant that he had been convicted of the charges listed on the worksheet.” Id. at 506, 565 S.E.2d at 743. The Court noted that “defendant has not asserted in his appellate brief that any of the prior convictions listed on the worksheet do not, in fact, exist.” Id. at 506, 565 S.E.2d at 743; see also State v. Morgan, 164 N.C. App. 298, 306-07, 595 S.E.2d 804, 810-11 (2004)(holding that defense counsel's acknowledgment of existence of convictions rose to the level of a stipulation, but remanding on other grounds); State v. Cunningham, 108 N.C. App. 185, 197-98, 423 S.E.2d 802, 810 (1992)(holding that defendant stipulated to his prior convictionswhere defense counsel acknowledged convictions but disagreed only with the length of confinement).
    In the case sub judice, the following exchange occurred during sentencing:
            [PROSECUTOR]: Mr. Whitaker, we would contend for sentencing he has a prior record II.

            THE COURT: Will he stipulate to that, Mr. Bingham?

            MR. BINGHAM: If Your Honor please, Mr. Whitaker reluctantly is a level II.
Defense counsel went on to explain what he meant by the use of the term “reluctantly.”
            MR. BINGHAM: If Your Honor please, going back to the beginning, you may recall that I told Your Honor that Mr. Whitaker reluctantly agreed that he was a prior record level II. When I was first appointed to represent Mr. Whitaker, I had received through-- I had received information from [the prosecutor] that Mr. Whitaker was a level II based on a felony conviction for some number of law in New Jersey. Mr. Whitaker took some unbridged [sic], that is to say, Mr. Whitaker took some unbridged [sic] because he acknowledged that he was convicted of a felony, but was convicted in New Jersey as a juvenile. At the time of the conviction he was 17 years old. I explained to him that in North Carolina, or as a minor rather, I explained to him that in North Carolina you remained a juvenile until you were 15 years, 364 days old, but when you turned 16, those points counted if any conviction after you're age 16 counted for points.
        . . . .
            MR. BINGHAM: Mr. Whitaker acknowledges that, but in the meantime, he had, in fact, written a letter to [the prosecutor] saying, I am guilty. We have conferred among ourselves, Your Honor, in the shooting case, I am not guilty in the shooting case, but one way orthe other, I ought to be a record level I because I don't have any-- because you shouldn't be able to count this New Jersey conviction. At that point, if Your Honor please, again, I've gone over the law with him and he understands his record level.
On the record before this Court, as in Eubanks and its progeny, we conclude that defense counsel's statements here constitute a stipulation to defendant's prior record level, and defendant's reluctance, based upon his own erroneous interpretation of the law, does not negate that stipulation. Accordingly, this argument is without merit.
    Having so concluded, we hold that defendant cannot show entitlement to a new sentencing hearing, and therefore, the judgment of the trial court is affirmed.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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