STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 05 CRS 054581
GREG ANTHONY PLATT
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Richard Moore, for the State.
Russell J. Hollers, III, for defendant appellant.
McCULLOUGH, Judge.
Greg Platt (“defendant”) appeals from judgments entered
consistent with the jury's verdict finding him guilty of 2 counts
of assault with a deadly weapon with intent to kill inflicting
serious injury.
The State presented evidence at defendant's trial tending to
show the following: Defendant and Tameki Christian (“Mrs.
Christian”) began talking on the phone in the spring of 2005 after
she and her husband, Terrian Christian (“Mr. Christian”), separated
in November 2004. In April of 2005 defendant came to visit Mrs.
Christian and spent several days at her house with his son. After
several days, Mrs. Christian asked defendant to leave. Before
defendant left he told Mrs. Christian that he had ripped some ofher clothes and furniture, poured water into her cell phone, cut
the cord to her VCR and taken several small items from her home
including CDS and videos.
Mrs. Christian testified that defendant agreed to meet her to
return the items on a Friday, but before they were scheduled to
meet he arrived at her house. That weekend, defendant again stayed
with Mrs. Christian. On Monday, Mr. Christian arrived at Mrs.
Christian's house where she and defendant were staying to discuss
the Christians' son's medical condition. Mrs. Christian asked
defendant to leave, but he refused and stated that he would leave
after he had eaten. An altercation ensued and resulted in defendant
stabbing Mrs. Christian approximately 6 or 7 times in the stomach,
upper chest, left breast and both arms with a kitchen knife.
Defendant also stabbed Mr. Christian several times in the neck,
chest, arms and back and then fled from the house.
Defendant testified at trial that he stabbed Mr. and Mrs.
Christian in self-defense after Mrs. Christian threw a skillet at
him and Mr. Christian attempted to reach for a knife and gun.
Defendant further testified, on direct examination, that he had a
prior assault conviction from 1993 in Kansas which resulted from
his stabbing a man with a kitchen knife in his ex-wife's house from
whom he was separated at the time. The jury returned a verdict of
guilty on 2 counts of assault with a deadly weapon with intent to
kill inflicting serious injury.
At the sentencing phase of the trial, the following exchange
took place between the court and the parties: State: I say I'm ready, I don't have a
worksheet with me, it should reflect
the only conviction on his record, a
conviction out of Kansas and because
I cannot say it's anymore than a
Class I felony, that would be his
sole conviction.
Court: So Level II then?
State: Yes, sir.
Court: Okay, Mr. Jordan, do you agree
that's the only record?
Jordan: Yes, sir.
Court: Level II?
Jordan: Yes, sir.
The trial court sentenced defendant to a term of 200 to 258
months' imprisonment. Defendant appeals.
Defendant contends on appeal the trial court committed plain
error in admitting evidence of defendant's 13-year-old conviction
from Kansas.
At trial the State informed the court that it intended to
offer evidence on cross-examination under N.C. Gen. Stat. § 8C-1,
Rule 404(b) (2005), regarding a conviction which occurred in Kansas
more than 10 years ago. The court ruled that it would allow the
evidence to be introduced under Rule 404(b). On direct examination
defendant testified as to the 1993 conviction and the events
underlying that conviction. On appeal defendant now attempts to
cite as error the admission of evidence that he himself testified
to on direct examination. However, “[a] defendant may not complain
of prejudice 'resulting from [his] own conduct.'” State v. Gay, 334N.C. 467, 485, 434 S.E.2d 840, 850 (1993) (citation omitted); N.C.
Gen. Stat. § 15A-1443(c) (2005). “Such 'invited error' does not
merit relief.” Id. (citation omitted). Therefore this assignment of
error is overruled.
Defendant further contends that the trial court erred in
sentencing Mr. Platt as a Level II offender where the State failed
to meet its burden of proof under N.C. Gen. Stat. § 15A-1340.14
(2005).
N.C. Gen. Stat. § 15A-1340.14(f)(1) states that proof of prior
convictions may be proven by stipulation of the parties. Id.
However, when a defendant has a prior out-of-state conviction, the
trial court must determine as a matter of law whether that
conviction is “substantially similar” to an offense under North
Carolina law for the purposes of sentencing. See N.C. Gen. Stat. §
15A-1340.14(e); State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d
600, 604 (2006). This Court has held that even a clear stipulation
to the classification and points assigned to an out-of-state
conviction is not sufficient to prove the nature of the out-of-
state conviction for sentencing purposes. State v. Palmateer, ___
N.C. App. ___, ___, 634 S.E.2d 592, 593 (2006).
Clearly “'the question of whether a conviction under an out-
of-state statute is substantially similar to an offense under North
Carolina statutes is a question of law to be resolved by the trial
court.'” Id. (citation omitted). In addition, “'“[s]tipulations as
to questions of law are generally held invalid and ineffective, andnot binding upon the courts, either trial or appellate.”'” Id.
(citations omitted).
In the instant case counsel for defendant stipulated to the
existence of defendant's prior conviction in Kansas and further
stipulated that defendant should be sentenced as a Level II
offender. However, the trial court failed to determine whether the
conviction prosecuted under Kansas law was substantially similar to
a felony offense under North Carolina statutes for sentencing
purposes and therefore we must remand for such determination.
Accordingly, we must remand defendant's case for resentencing.
Remanded for resentencing.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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