Appeal by defendant from order entered 25 February 2005 by
Judge W. Osmond Smith, III and judgment entered 1 March 2005 by
Judge Donald Stephens in Caswell County Superior Court. Heard in
the Court of Appeals 12 January 2006.
Attorney General Roy Cooper, by Assistant Attorney General M.
Elizabeth Guzman, for the State.
James M. Bell for defendant-appellant.
Following the trial court's entry of an order finding
defendant Doyle Kent Terry competent to stand trial, defendant pled
guilty to two counts of second degree murder. On appeal, defendant
argues that the trial court erred in its competency determination
and in its calculation of defendant's prior record level. Since a
defendant has only a limited right to appeal from a guilty plea,
and we have been able to identify no basis for appellate
jurisdiction with respect to the competency order, we dismiss that
aspect of defendant's appeal. As for the prior record level, we
hold that the trial court properly determined that defendant's
Virginia conviction for possession of a sawed-off shotgun should beclassified as a Class F felony for sentencing purposes in our
State. Accordingly, we uphold the decisions of the trial court.
On 16 November 2003, defendant attempted to elude arrest for
a stop sign violation, which resulted in a high speed chase with
defendant exceeding 100 miles per hour. The chase began in
Virginia and proceeded south down a four-lane highway into North
Carolina. During the chase, defendant's truck glanced off a car
driven by Wallace Farthing. Mr. Farthing, who was elderly and
suffered from heart disease, managed to pull off the road and exit
his car, but collapsed and died as a result of the accident an hour
and a half later. Defendant then had a head-on collision with a
sport utility vehicle driven by James Villepigue. Mr. Villepigue's
vehicle spun out of control, was struck by a patrol car pursuing
defendant, and then overturned. Mr. Villepigue died at the scene
from multiple traumatic wounds. Defendant's blood alcohol level
shortly after his arrest was .13.
Defendant was charged with two counts of first degree murder
based on the deaths of Mr. Farthing and Mr. Villepigue. On 13
December 2004, defendant's trial counsel filed a motion challenging
defendant's capacity to proceed to trial on these charges. The
motion was supported by a letter from psychologist Dr. Brad Fisher,
which stated that Dr. Fisher believed defendant was not competent
to stand trial as a result of psychosis, depression, retardation,
and/or substance abuse-related issues. In response to the motion,
the trial court entered an order on 14 December 2004 committingdefendant to Dorothea Dix Hospital for determination of defendant's
capacity to proceed to trial. Defendant spent 15 days at Dorothea
Dix, where he was evaluated by Dr. Amy Trivette and Dr. Karla
On 18 February 2005, Judge W. Osmond Smith, III conducted a
competency hearing at which Dr. Trivette, Dr. deBeck, Dr. Fisher,
defendant's mother, and defendant testified. At that hearing, Dr.
Trivette and Dr. deBeck expressed the opinion that defendant was
malingering or feigning mental illness and that defendant was
competent to stand trial. Dr. Fisher expressed a contrary opinion.
Judge Smith entered an order on 25 February 2005, finding that
"[d]uring the course of his stay at Dorothea Dix for the court-
ordered evaluation, the defendant intentionally feigned his
responses in an attempt to mislead his evaluators and to distort
test results to such an extent to lead to a finding of
malingering." Judge Smith further found that "[t]he defendant does
not suffer from a mental disease or defect to such an extent to
render him unable to (1) [u]nderstand the nature and object of the
proceedings against him, (2) [t]o comprehend his own situation in
reference to the proceedings, or (3)[t]o assist in his defense in
a rational or reasonable manner." In accordance with these
findings, Judge Smith concluded that defendant had the capacity to
proceed within the meaning of N.C. Gen. Stat. § 15A-1001 (2005).
Subsequently, on 1 March 2005, defendant entered an Alford
plea to two counts of second degree murder. The plea agreement
provided that the charges would be consolidated into one judgmentand sentencing would be left up to the trial court. Judge Donald
Stephens sentenced defendant to a presumptive range sentence of 282
to 348 months imprisonment based on a prior record level of V.
Defendant first assigns error to the trial court's
determination that he was competent to stand trial. As an initial
matter, we must determine whether we have jurisdiction to review
this issue. "[A] defendant who has entered a plea of guilty is not
entitled to appellate review as a matter of right, unless the
defendant is appealing sentencing issues or the denial of a motion
to suppress, or the defendant has made an unsuccessful motion to
withdraw the guilty plea." State v. Pimental
, 153 N.C. App. 69,
73, 568 S.E.2d 867, 870, disc. review denied
, 356 N.C. 442, 573
S.E.2d 163 (2002).
In State v. O'Neal
, 116 N.C. App. 390, 395, 448 S.E.2d 306,
310, disc. review denied
, 338 N.C. 522, 452 S.E.2d 821 (1994), this
Court determined that a defendant who pled guilty did not have a
right to appeal the trial court's determination that no further
evaluation was necessary and the defendant was competent to stand
trial: "Hence, in the present case where defendant pled guilty, we
may not consider this assignment of error unless we treat his
appeal as a writ of certiorari with respect to this assignment of
error." The Court then elected to treat the appeal as a petition
for a writ of certiorari, granted the writ, and proceeded to review
the defendant's argument. But see State v. Dickson
, 151 N.C. App.
136, 137_38, 564 S.E.2d 640, 640 (2002) (holding that the appellatecourt "is limited to issuing a writ of certiorari 'in appropriate
circumstances . . . to permit review of the judgments and orders of
trial tribunals when the right to prosecute an appeal has been lost
by failure to take timely action, or when no right of appeal from
an interlocutory order exists, or for review pursuant to G.S.
15A-1422(c)(3) of an order of the trial court denying a motion for
appropriate relief'" (quoting N.C.R. App. P. 21(a)(1))).
explains, defendant has no appeal of right with
respect to the competency determination because the appeal does not
fall within any of the categories set out in N.C. Gen. Stat. §§
15A_979(b) and _1444 (2005). Further, even if, as in O'Neal
were to treat the appeal as a petition for writ of certiorari and
allow the writ, defendant still would not be entitled to relief.
N.C. Gen. Stat. § 15A-1001(a) provides:
No person may be tried, convicted, sentenced,
or punished for a crime when by reason of
mental illness or defect he is unable to
understand the nature and object of the
proceedings against him, to comprehend his own
situation in reference to the proceedings, or
to assist in his defense in a rational or
When the trial judge conducts the inquiry under N.C. Gen. Stat. §
15A-1001(a) without a jury, "the court's findings of fact, if
supported by competent evidence, are conclusive on appeal." State
v. Jackson, 302 N.C. 101, 104, 273 S.E.2d 666, 669 (1981). This is
true "even if there is evidence to the contrary." O'Neal, 116 N.C.
App. at 395, 448 S.E.2d at 310-11.
Here, defendant has not specifically assigned error to any of
the trial judge's findings of fact. Instead, defendant'sassignment of error states: "The trial court committed reversible
error by finding that the appellant had the capacity to proceed
with his case dispite [sic] overwhelming evidence to the contrary."
This assignment of error constitutes only a broadside challenge to
the trial judge's findings of fact and is not sufficient to permit
review of the sufficiency of the evidence to support the findings
of fact. State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554
(1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965, 120 S. Ct.
2694 (2000). Nevertheless, those findings are supported by the
testimony and report of Drs. Trivette and deBeck. Defendant's
argument on appeal that Dr. Fisher's testimony and defendant's
medical records are entitled to greater weight is not a proper
basis on appeal for overturning the trial judge's findings.
We, therefore, elect not to proceed pursuant to a writ of
certiorari. This aspect of defendant's appeal is dismissed.
With respect to his sentence, defendant argues that the trial
court, in calculating his prior record level, improperly classified
a prior Virginia conviction as a Class F felony rather than as a
Class I felony. Defendant has a right to appeal this issue. State
, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004).
The offense in question is a prior conviction for possession
of a sawed-off shotgun in violation of Va. Code Ann. § 18.2_300(B)
(See footnote 1)
N.C. Gen. Stat. § 15A-1340.14(e) (2005) givesinstructions on how to classify felony convictions from other
jurisdictions for purposes of North Carolina's structured
Except as otherwise provided in this
subsection, a conviction occurring in a
jurisdiction other than North Carolina is
classified as a Class I felony if the
jurisdiction in which the offense occurred
classifies the offense as a felony . . . . If
the State proves by a preponderance of the
evidence that an offense classified as . . . a
felony in the other jurisdiction is
substantially similar to an offense in North
Carolina that is classified as a Class I
felony or higher, the conviction is treated as
that class of felony for assigning prior
record level points.
In short, the default classification for out-of-state felonies is
I, the lowest class. A trial court may, however, alter this
classification if the State proves that the felony conviction in
question is "substantially similar" to a corresponding North
Carolina felony that falls under a more serious classification than
an I felony.
In this case, the State contends that defendant's Virginia
conviction for possession of a sawed-off shotgun is substantially
similar to a conviction under North Carolina's N.C. Gen. Stat. §
14_288.8(c)(3) (2005). N.C. Gen. Stat. § 14_288.8 lists various
weapons that are considered "weapon[s] of mass death anddestruction," including sawed-off shotguns in subsection (c)(3).
Possession of any of the listed weapons is a Class F felony. N.C.
Gen. Stat. § 14_288.8(d). During the sentencing hearing, the State
submitted to the trial judge copies of the relevant Virginia
statutes and pointed out the similarities between the Virginia
statutes and N.C. Gen. Stat. § 14_288.8. The trial court agreed
with the State and classified the conviction as a Class F felony.
Defendant argues on appeal that the State failed to offer
sufficient evidence to prove substantial similarity because
defendant did not stipulate to substantial similarity, and the
State did not present certified copies of the warrant, indictment,
and judgment related to the Virginia conviction. An examination of
the transcript of the sentencing hearing reveals that defendant's
counsel did stipulate to the fact of the Virginia conviction and
argued only that the felony should be classified as Class I rather
than Class F:
THE COURT: . . . [Y]our only dispute with
the Court as to the Court's ruling with regard
to the prior record level five, the
determination is, my ruling, that the
possession of a sawed-off shotgun is a Class F
felony as opposed to a Class I felony.
MS. PRESSLEY [defense counsel]: Yes.
THE COURT: If I rule as you contend on
each of these items [defendant's prior
felonies], you don't challenge that they
relate to your client? You only challenge the
one felony classification?
MS. PRESSLEY: Yes, sir . . . .
THE COURT: . . . All right. I'm going to
find the conviction _ have you stipulated to
MS. PRESSLEY: Yes.
With respect to the question of substantial similarity, this
Court has recently held that "whether an out-of-state offense is
substantially similar to a North Carolina offense is a question of
law that must be determined by the trial court, not the jury. . .
. The comparison of the elements of an out-of-state criminal
offense to those of a North Carolina criminal offense . . .
involves statutory interpretation, which is a question of law."
State v. Hanton
, __ N.C. App. __, __, 623 S.E.2d 600, 604 (2006).
Accordingly, we analyze the trial court's finding of substantial
similarity de novo
. Staton v. Brame
, 136 N.C. App. 170, 174, 523
S.E.2d 424, 427 (1999) ("We review questions of law de novo
Va. Code Ann. § 18.2_300
(B) provides: "Possession or use of a
'sawed-off' shotgun or 'sawed-off' rifle for any other purpose
[than violent crime] . . . is a Class 4 felony." The Virginia Code
defines a "sawed-off shotgun" as:
any weapon, loaded or unloaded, originally
designed as a shoulder weapon, utilizing a
self-contained cartridge from which a number
of ball shot pellets or projectiles may be
fired simultaneously from a smooth or rifled
bore by a single function of the firing device
and which has a barrel length of less than 18
inches for smooth bore weapons and 16 inches
for rifled weapons.
Va. Code Ann. § 18.2_299 (2004).
N.C. Gen. Stat. § 14-288.8 provides, in pertinent part:
(a) Except as otherwise provided in this
section, it is unlawful for any person to
manufacture, assemble, possess, store,
transport, sell, offer to sell, purchase,
offer to purchase, deliver or give to another,or acquire any weapon of mass death and
. . . .
(c) The term "weapon of mass death and
. . . .
(3) . . . any shotgun with a barrel
or barrels of less than 18
inches in length or an overall
length of less than 26 inches .
. . .
. . . .
(d) Any person who violates any
provision of this section is guilty of a Class
The plain language of the two statutes indicates that any weapon
violating the Virginia statute would also violate the North
We hold that the statutes are substantially similar for
sentencing purposes under N.C. Gen. Stat. § 15A-1340.14(e). The
trial court did not, therefore, err in classifying defendant's
Virginia conviction as a Class F felony when calculating
defendant's prior record level. Defendant's second assignment of
error is, therefore, overruled.
Dismissed in part; affirmed in part.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).