STATE OF NORTH CAROLINA
v. Rutherford County
No. 05 CRS 55044
KENNETH TRACY OWENS
Attorney General Roy Cooper, by Special Deputy Attorney
General Ted R. Williams, for the State.
James N. Freeman, Jr., for defendant-appellant.
ELMORE, Judge.
On 3 January 2006, Kenneth Tracy Owens (defendant) pled guilty
to one count of felony fleeing to elude arrest. On the same day,
the trial court sentenced defendant to eight to ten months'
imprisonment. Defendant appeals. For the reasons discussed below,
we find no error.
In a bill of information dated 3 January 2006, it was alleged
that defendant was fleeing and attempting to elude a law
enforcement officer while operating a motor vehicle. Defendant
waived return of a bill of indictment and, on 3 January 2006, he
pled guilty to one count of felony fleeing to elude arrest in
Rutherford County District Court. At the plea hearing, the trialcourt reviewed the transcript of plea with defendant, including the
terms of the plea agreement between defendant and the State. The
prosecutor summarized the factual basis for the plea and defense
counsel was given the opportunity to respond. Thereafter, the
trial court accepted defendant's plea and sentenced him as a prior
record level III offender.
In his sole argument on appeal, defendant contends that the
State failed to provide sufficient evidence of his prior
convictions as required by N.C. Gen. Stat. § 15A-1340.14(f). We
disagree.
“The State bears the burden of proving, by a preponderance of
the evidence, that a prior conviction exists[.]” N.C. Gen. Stat. §
15A-1340.14(f) (2005). “There is no question 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). However, a prior conviction may be proved by one
of the following four ways: “(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)
(2005). Our Supreme Court has held that “during 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.” State v. Alexander, 359 N.C. 824, 829, 616
S.E.2d 914, 918 (2005). Thus, depending on the circumstances, a
defense counsel's statements and/or inaction during sentencing may
represent a stipulation to the defendant's prior record level.
See, e.g., id. at 830, 616 S.E.2d at 918 (concluding defendant
stipulated to convictions listed on State's worksheet where his
counsel “specifically directed the trial court to refer to the
worksheet to establish that defendant had no prior felony
convictions” and his counsel made statements indicating “not only
that [he] was cognizant of the contents of the worksheet, but also
that he had no objections to it.”); State v. Mullican, 329 N.C.
683, 686, 406 S.E.2d 854, 855 (1991) (concluding defendant
stipulated to finding of aggravating factors where defense counsel
“made a statement which was consistent with the statement of the
prosecuting attorney” and declined “invitation . . . to object”
when “the prosecuting attorney said he would summarize the State's
evidence with the permission of the defendant. . . .”).
In this case, the following exchange occurred during
sentencing:
BY [THE DISTRICT ATTORNEY]: . . . Your Honor,
we have a four-sequence (inaudible). I
believe him to be a Level III for purposes of
felony judgment. It has been stipulated that
III _ that that's an accurate reflection ofhis (inaudible) record (inaudible) suspension.
BY THE COURT: Is there anything on a factual
basis?
BY [DEFENSE COUNSEL]: No, Your Honor. But if
I may, just briefly, Mr. Owens suffers from
some mental and emotional problems. . . .
On appeal, defendant acknowledges there is some assertion by
the district attorney that the parties had stipulated to
defendant's prior record level. Defendant, however, argues that
there was no signed stipulation by his counsel and the prior record
level worksheet was not signed by his counsel. Further, defendant
asserts that the above exchange indicates that his trial counsel
did not indicate that she stipulated to the accuracy of the
convictions on the worksheet that supported a prior record level of
III.
We initially note there is no requirement that a stipulation
of the parties be in writing. See Alexander, 359 N.C. at 829-30,
616 S.E.2d at 918; Mullican, 329 N.C. at 686, 406 S.E.2d at 855.
Here, defense counsel did not object either to the district
attorney's representation that the parties had stipulated that
defendant was “a Level III for purposes of a felony judgment,” or
to the trial court's later conclusion that defendant “has five
prior (inaudible) Level III.” Under these circumstances, we
conclude defense counsel's conduct at sentencing “constituted a
stipulation of defendant's prior record level pursuant to N.C. Gen.
Stat. § 15A-1340.14(f)(1).” See Alexander, 359 N.C. at 830, 616S.E.2d at 918. Thus, we further conclude that defendant's sentence
was imposed based upon a proper finding of his prior record level.
No error.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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