STATE OF NORTH CAROLINA
v. Jackson County
No. 97 CRS 3031
ROBERT CHARLES AUSTIN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Michael R. Epperly, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant-appellant.
Robert Austin, pro se, defendant-appellant.
GEER, Judge.
Pursuant to a plea agreement, defendant Robert Charles Austin
pled guilty to breaking or entering, larceny, possession of stolen
goods, second degree trespass, injury to personal property,
shoplifting, driving while impaired, driving while license revoked,
failing to heed a blue light or siren, resisting a public officer,
habitual impaired driving, and having attained the status of
habitual felon. The plea agreement provided that "[a]ll
convictions shall be consolidated for judgment into file number
3031, habitual felon, for sentencing." After the trial court
determined that defendant had 18 prior record level points and aprior record level V, the court imposed a sentence of 151 to 191
months imprisonment. This Court granted defendant's petition for
writ of certiorari on 31 January 2005 to review the trial court's
judgment, but limited review to only those issues set forth in N.C.
Gen. Stat. § 15A-1444(a1) and (a2) (2005).
Defendant's appellate counsel states that he is "unable to
identify an issue with sufficient merit to support a meaningful
argument for relief on appeal" and asks this Court to review the
record for possible prejudicial error. Counsel has shown to the
satisfaction of this Court that he has substantially complied with
the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed.
2d 493, 87 S. Ct. 1396 (1967), and State v. Kinch, 314 N.C. 99, 331
S.E.2d 665 (1985). Counsel advised defendant of his right to file
written arguments with this Court and provided him with the
documents necessary for him to do so. Defendant filed a pro se
brief with this Court on 26 September 2006.
In his pro se brief, defendant contends that the State failed
to prove the existence of any prior convictions pursuant to N.C.
Gen. Stat. § 15A-1340.14(f) (2005) and that the trial court,
therefore, erred in finding that he had a prior record level V.
This issue is properly before us under N.C. Gen. Stat. § 15A-
1444(a2).
At sentencing, the State bears the burden of proving
defendant's prior convictions by a preponderance of the evidence.
N.C. Gen. Stat. § 15A-1340.14(f). Our General Statutes specify
that the State may meet this burden in several ways, including by"[s]tipulation of the parties" and by "[a]ny other method found by
the court to be reliable." N.C. Gen. Stat. § 15A-1340.14(f)(1),
(4). It is well established, however, "that a worksheet, prepared
and submitted by the State, purporting to list a defendant's prior
convictions is, without more, insufficient to satisfy the State's
burden in establishing proof of prior convictions." State v.
Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002).
"Because a sentencing worksheet was the only proof submitted
to the trial court, we look to the dialogue between counsel and the
trial court to determine whether defendant stipulated to the prior
convictions" that resulted in the prior record level used in
sentencing. State v. Wade, __ N.C. App. __, __, 639 S.E.2d 82, 86
(2007). During sentencing, the following colloquy occurred:
THE COURT: Okay. Any information on his
prior record level?
[THE PROSECUTOR]: I do, Your Honor, we _
the State would be attempting to show that Mr.
Austin is Level V for purposes of the habitual
felon case, and would be Level III for the
misdemeanor sentencing. And I believe, also
it would be Level V as to the felony habitual
impaired driving cases, Your Honor, which show
a 1969 a [sic] conviction for misdemeanor
larceny; 1971 a misdemeanor escape; later in
1971 a felony escape; in 1982 there are two
separate uttering a forged instrument, one did
form the basis of the habitual felon, however,
one did not, so we would be using that for an
additional two points; in 1984 he was
convicted of driving while impaired, driving
while permanently revoked, speeding to elude,
assault on an officer, hit and run property
damage, and failure to stop for blue light and
siren, be an additional point for the assault
on an officer; 1985 escape as a misdemeanor; a
separate 1986 escape was as a misdemeanor;
1989 again we used that, let me double check
that one, Your Honor, we used the larcenycount of that case was the one used for
habitual felon status, however, he was also
convicted of felonious breaking or entering,
and we used that count to enhance the
sentencing; he was also convicted of failing
to stop for blue light and siren, reckless
driving and simple possession at that time;
1992 we did use a felony of sale and delivery
of marijuana to enhance _ or to make the
habitual felon; however, to enhance sentencing
he also had a conviction for possession with
intent to sell and deliver marijuana; and in
1995 he was convicted of felonious driving
while impaired, which would be four points to
add to the sentencing record.
I have set those out on a separate sheet
on top of his record, Your Honor, and as to
the _ it would be 17 points at that count, and
it would be one additional point for the plea
being to felonious breaking or entering and
larceny, that he did have prior conviction of
that same case.
THE COURT: Thank You, sir. Mr. Hilty
[defense counsel]?
[DEFENSE COUNSEL]: Your Honor, the record
does speak for itself. Mr. Austin has been in
and out of trouble for quite some time and
certainly faced a good bit today and in the
future, although, he has elected, although we
thought we had some defenses to some of this,
at least, to take this plea today.
Based on defendant's accrual of 18 points from prior convictions,
the court found "from the evidence and statements of counsel, that
the Defendant's a prior record Level V for felony sentencing
purposes . . . ."
This Court has held that "[a] stipulation does not require an
affirmative statement and silence may be deemed assent in some
circumstances, particularly if the defendant had an opportunity to
object and failed to do so." Wade, __ N.C. App. at __, 639 S.E.2d
at 85. See also State v. Alexander, 359 N.C. 824, 829, 616 S.E.2d914, 918 (2005) ("[D]uring sentencing, a defendant need not make an
affirmative statement to stipulate to his or her prior record level
. . ., particularly if defense counsel had an opportunity to object
to the stipulation in question but failed to do so."). In Wade,
the Court found a stipulation when "defendant had an opportunity to
object and instead of doing so, began describing mitigating factors
to the trial court." __ N.C. App. at __, 639 S.E.2d at 86. In
State v. Hurley, __ N.C. App. __, __, 637 S.E.2d 919, 923 (2006),
this Court held sufficient agreement occurred to support the prior
record level when "defendant had an opportunity to object and
rather than doing so, asked for work release. Defendant did not
object to any of the convictions shown on the worksheet at any time
during the hearing."
This case is materially indistinguishable from Wade and
Hurley. Defense counsel did not object to the worksheet or any of
the convictions set forth by the State, but rather simply said,
"the record does speak for itself." See also Alexander, 359 N.C.
at 830, 616 S.E.2d at 918 (holding that there was sufficient
evidence of a stipulation when defense counsel stated to trial
judge that "up until this particular case [the defendant] had no
felony convictions, as you can see from his worksheet"); State v.
Cromartie, 177 N.C. App. 73, 81, 627 S.E.2d 677, 682-83 (defense
counsel stipulated to prior record level by making specific
reference to worksheet and by not disputing its contents), disc.
review denied, 360 N.C. 539, 634 S.E.2d 538 (2006). We, therefore,
hold that the colloquy between the trial judge and defense counselconstituted a sufficient stipulation under N.C. Gen. Stat. § 15A-
1340.14(f), and the trial court committed no error in determining
defendant's prior record level.
In accordance with Anders, we have also fully examined the
record and found no other issues of arguable merit falling within
the scope of N.C. Gen. Stat. § 15A-1444(a1) and (a2). Although
defendant in his pro se brief raises additional arguments, we do
not consider them here because they are beyond the limited scope of
review established in our order granting defendant's petition for
writ of certiorari.
No error.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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