STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 04 CRS 201402-03
EDWIN FITZGERALD FRANKLIN
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
David Childers for defendant-appellant.
MARTIN, Chief Judge.
On 10 May 2005, defendant was convicted of felonious breaking
and entering and felonious larceny after breaking and entering.
At
sentencing, the State contended defendant had a prior record level
of V. Defendant argued that based on the prior record level
worksheet, he only had fourteen points, making him a Level IV. In
response, the State admitted there was an error on the worksheet,
noting that a misdemeanor conviction for possession of drug
paraphernalia, which had been listed on the worksheet, had not been
included in the total. Defendant argued that he was misled by the
error, and requested that the court sentence him as a prior record
level IV. Defendant stipulated to the “felony convictions” listedon the worksheet. The State then provided records from the
Division of Criminal Information (“DCI”) and the Administrative
Office of the Courts
[“AOC”] as evidence of defendant's misdemeanor
conviction for possession of drug paraphernalia. The trial court
found defendant had fifteen points for a prior record level of V,
and sentenced him to consecutive terms of fourteen to seventeen
months imprisonment.
Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred in sentencing him as a prior record level V. Defendant
argues that the State failed to prove the existence of the
convictions listed in his prior record level worksheet. Defendant
claims that the records used to establish his prior record level
were not reliable.
After careful review of the record, briefs, and contentions of
the parties, we find no error. N.C.G.S. § 15A-1340.14 provides
that the State bears the burden of proving by the 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.” N.C. Gen. Stat. § 15A-1340.14 (2005). A
defendant's prior convictions may 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)
(emphasis added). See also State
v. Riley, 159 N.C. App. 546, 555-56, 583 S.E.2d 379, 386 (2003).
The trial court found that defendant had fifteen prior record
points for a Prior Record Level of V. Of the fifteen points,
defendant stipulated to fourteen points, agreeing that the felonies
listed in the record were accurate. Thus, the sole issue left for
the Court is to determine whether the State proved the existence of
the misdemeanor conviction for possession of drug paraphernalia.
Included in the record is an AOC printout listing a prior
conviction for Edwin F. Fitzgerald for possession of drug
paraphernalia on 28 September 2001. The printout describes
Fitzgerald as a black male, born on 31 October 1971, information
similarly reflected on the judgments. Additionally, included in
the record is a DCI printout including a prior conviction for a
Edwin F. Franklin for possession of drug paraphernalia on 28
September 2001. At sentencing, defendant did not dispute the
existence of this conviction, arguing only that he had been misled
by the State's inclusion of the conviction in its prior record
level calculation, and that he had relied on this error.
Thus, we
conclude that the State carried its burden of proving by the
preponderance of the evidence that defendant had committed the
misdemeanor offense. See N.C. Gen. Stat. § 15A-1340.14(f).
No error
.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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