State v Graham, (05-1223) 07/05/2006

Appeal by defendant from judgment entered 7 December 2004 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 19 June 2006.

Attorney General Roy Cooper, by Assistant Attorney General Nancy Reed Dunn, for the State.

Michael J. Reece for defendant-appellant.

STEELMAN, Judge.

    Defendant, Vonsa Graham, pled guilty to possession with intent to sell or deliver methylenedioxymethamphetamine (MDMA) and admitted his status as a habitual felon. The trial court sentenced defendant
as a record Level IV and imposed a mitigated range sentence of 84 to 110 months active imprisonment. Defendant appeals.
    In his sole assignment of error, defendant contends the trial court erred in determining his prior record level because the State failed to provide sufficient evidence of his prior convictions. Under the Structured Sentencing Act, before imposing a felony sentence, the sentencing judge must determine a defendant's priorrecord level pursuant to N.C. Gen. Stat. § 15A-1340.14. N.C. Gen. Stat. § 15A-1340.13(b). A prior conviction can 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.

N.C. Gen. Stat. § 15A-1340.14(f). “'A copy' includes a paper writing containing a reproduction of a record maintained electronically on a computer or other data processing equipment . . . .” Id. “The State bears the burden of proving, by a 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.” Id.
    The trial court found defendant's prior record level to be level IV based upon thirteen prior record points, exclusive of the convictions used to establish defendant's habitual felon status. The trial transcript shows the State presented National Crime Information Center (NCIC) printouts from the Division of Criminal Information and a printout of the computer screen from ERMA, the Administrative Office of the Court's criminal record system, to support the convictions listed on defendant's prior record level worksheet. This Court has recognized that a computerized printout of a defendant's Division of Criminal Information record is aproper method to prove prior convictions under N.C. Gen. Stat. § 15A-1340.14(f)(3) and (4). See State v. Rich, 130 N.C. App. 113, 116, 502 S.E.2d 49, 51 (1998) (holding copy of an unverified computerized record maintained by the Division of Criminal Information constituted a reliable method of proving prior convictions); see also State v. Lowe, 154 N.C. App. 607, 610, 572 S.E.2d 850, 853 (2002) (finding no error where “the State submitted to the court a prior criminal record and that the court considered the record to be reliable.”)
    Defendant in this case admits the State presented some documents supporting its assertion that he was a prior record level IV offender and further admits there is no reason to doubt that they were in fact AOC printouts from the ERMA system and NCIC printouts from the Division of Criminal Information. Nevertheless, defendant argues that because these documents purportedly are not in the trial court's file and are not included in the record on appeal, the only evidence of his prior record level available for appellate review is the prosecutor's statements at the hearing and the prior record level worksheet, which are insufficient to support the trial court's finding. See State v. Jeffery, 167 N.C. App. 575, 579, 605 S.E.2d 672, 675 (2004) (“'The law requires more than the State's unverified assertion that a defendant was convicted of the prior crimes listed on a prior record level worksheet'”) (citations omitted). Defendant argues he is entitled to a new sentencing hearing. We find this argument meritless and note it is the appellant's duty to ensure the record is complete. State v.Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983).
    “An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.” State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968). Here, the trial transcript shows the trial court relied upon records previously recognized by this Court to be proper in proving prior convictions under N.C. Gen. Stat. § 15A-1340.14(f)(3) and (4) in determining defendant's prior record level. Rich, 130 N.C. App. at 116, 502 S.E.2d at 51. There is nothing in the record indicating these records were unreliable. We hold that defendant has failed to show the trial court erred in relying upon the NCIC printouts from the Division of Criminal Information and the printout of the computer screen from ERMA in determining defendant's prior record level and no error appears in the record before this Court.
    With the possible exception of a 1993 breaking and entering conviction, there is no evidence in the record indicating the convictions listed on defendant's prior record level worksheet do not belong to him. Assuming arguendo that the trial court erred in including the two points for defendant's breaking and entering conviction in determining his prior record level, any such error was harmless. Under the Structured Sentencing provisions of the Criminal Procedure Act, the prior record level for felony sentencing is determined by calculating the sum of the offender's prior conviction points. N.C. Gen. Stat. § 15A-1340.14. For a prior record “Level IV,” the offender must have “[a]t least 9, butnot more than 14 points.” N.C. Gen. Stat. § 15A-1340.14(c)(4). Defendant had a total of thirteen prior record points, excluding the convictions used to establish his status as a habitual felon. Even without the breaking and entering conviction, he still would have had eleven points. Accordingly, even if there was error in including the two points for this conviction, it was harmless because only nine points are needed to be a level IV offender. See State v. Smith, 139 N.C. App. 209, 219-20, 533 S.E.2d 518, 524 (2000).
    Other than defendant's testimony regarding the breaking and entering conviction, the only evidence he presented disputing his prior record level was his contention that he was sentenced as a prior record level II offender at a prior sentencing hearing for possession with intent to sell and deliver marijuana. Defendant asserts this conviction was in 2000, but was actually in 1999. Defendant argues that as a level II offender at the time of the prior hearing, he could only be a level III offender for the present offense with the addition of the two points from the possession with intent to sell and deliver marijuana conviction. Defendant testified as follows:
        Q. What other grounds do you base your objection to the record level IV being?

        A. That - - just in 2000 I was in front of this same Judge, Todd Burke, and you gave me a sentence, and you sentenced me on a level - - record Level II. I have not been in trouble since 2000 - - since 2000 when I got put on probation, and it's from my understanding that your record level only increases from your, when you are getting convicted of other charges. And if I haven't ever been chargedwith nothing and convicted of nothing else how is my record level going from a Level II to a Level IV? That's the question I have for the Courts (sic).

As stated by the sentencing judge and acknowledged by defendant's trial counsel at the hearing, “sometimes prosecution [sic] doesn't present all of the prior record, even though it's there they don't present it.” The fact that defendant may have benefitted from an incomplete record being presented in 1999 does not entitle him to the same treatment in 2004. As an appellate court, our role is to review this matter to determine whether the trial court erred in deciding defendant's prior record level based upon reliable information presented at the 2004 sentencing hearing. We conclude the trial court did not err. This argument is without merit.
    NO ERROR.
    Judges MCCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

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