STATE OF NORTH CAROLINA
v. Cumberland County
No. 04 CRS 54381
SHAUN ADAM PENDERGRAPH
Attorney General Roy Cooper, by Assistant Attorney General
Roberta A. Ouellette for the State.
Anne Bleyman for defendant-appellant.
Indicted on charges of first degree murder and conspiracy to
commit first degree murder, defendant pled guilty to second degree
murder. The plea agreement provided that the conspiracy charge
would be dismissed and that both sides are free to argue as to the
sentence to be imposed. Defendant's counsel stipulated to the
prior record level worksheet showing that defendant had a single
prior conviction of statutory rape in the State of Pennsylvania,
that the classification of the offense is class E, that defendant's
prior record level points is 4, and that defendant's prior record
level is II. The court sentenced him within the presumptive range
to a minimum term of 189 months and a maximum term of 236 months.
Defendant filed timely notice of appeal. D
efendant contends the trial court incorrectly classified the
Pennsylvania offense as a Class E felony and incorrectly sentenced
him as a Level II offender. He argues the State failed to prove
that the crime of statutory rape in Pennsylvania is equivalent or
substantially similar to an offense classified as a class E offense
in North Carolina.
A prior conviction from another jurisdiction is classified as a Class I felony unless the State or defendant proves by a preponderance of the evidence that a substantially similar offense in this state is classified at a higher or lower classification. N.C. Gen. Stat. § 15A-1340.14(e) (2005). Just as the existence of a prior conviction may be proved by stipulation of the parties pursuant to N.C. Gen. Stat. § 15A-1340.14(f)(1), so may the classification of an out-of-state conviction. State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000). Here, defendant's counsel signed the prior record worksheet, stipulating not only that defendant had been convicted of the offense in Pennsylvania but that the classification of the offense is Class E. Counsel also stipulated in open court, as reflected in the worksheet, that defendant has four prior record level points and that his prior record level is level II. In response to questioning by the court, counsel indicated he had no issues with the prior record points or level determination. These stipulations waived defendant's right to appellate review of correctness of the classification of the offense and the prior record level points determination. State v. Hamby, 129 N.C. App. 366, 369-70, 499S.E.2d 195, 197 (1998). This contention is dismissed.
Defendant also contends that the plea must be vacated and the indictment dismissed on the ground the short form indictment used to charge defendant is insufficient to confer jurisdiction. Because this issue is not one which may be raised on appeal when a defendant pleads guilty or one which may be raised by a petition for writ of certiorari in the absence of a right to review, it is not properly before us. See State v. Jamerson, 161 N.C. App. 527, 529, 588 S.E.2d 545, 547 (2003). This contention is dismissed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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