An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-799


Filed: 4 April 2006


         v.                        Cumberland County
                                No. 04 CRS 54381

    Appeal by defendant from judgment entered 11 February 2005 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 27 February 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Roberta A. Ouellette for the State.

    Anne Bleyman for defendant-appellant.

    ELMORE, Judge.

     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.
    Appeal dismissed.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

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