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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1457

NORTH CAROLINA COURT OF APPEALS

Filed: 7 August 2007

STATE OF NORTH CAROLINA

v .                         Beaufort County
                            Nos. 04 CRS 51405
RONALD TONY DAWSON                     04 CRS 51543

    Appeal by Defendant from judgment entered 6 June 2006 by Judge William C. Griffin, Jr., in Beaufort County Superior Court. Heard in the Court of Appeals 6 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

    John T. Hall for Defendant.

    STEPHENS, Judge.


    On 6 June 2005, a grand jury indicted Defendant for violating N.C. Gen. Stat. § 14-87. The indictment stated, in pertinent part:
        [O]n or about [12 April 2004] and in [Beaufort County] the defendant named above unlawfully, willfully and feloniously did steal, take and carry away and attempt to steal, take and carry away another's personal property, US Currency of the value of $190.00, from the place of business of Handy Mart #130, 5385 River Road, Washington, NC. The defendant committed this act having in possession and with the use and threatened use of a firearm, a handgun, whereby the life of Christina Villeda was endangered and threatened.

That same day, the grand jury also indicted Defendant for violating N.C. Gen. Stat. §§ 14-54(a) and 14-72(a). That indictment stated, in pertinent part:        [O]n or about [24 April 2004] and in [Beaufort County] the defendant named above unlawfully, willfully and feloniously did [(I)] break and enter a building occupied by John Washington d/b/a River Road Grill used as a restaurant located at 615 River Road, Washington, NC, with the intent to commit a felony therein.

        And . . . [(II)] steal, take, and carry away various frozen food products, the personal property of John Washington d/b/a River Road Grill pursuant to the commission of felonious breaking and entering described in Count I above.

Defendant pled guilty on 15 August 2005 to all charges. During the plea colloquy, the trial court asked Defendant questions listed on the Transcript of Plea (Form AOC-CR-300, rev. 2/2000), which Defendant had completed and signed . In response, Defendant affirmed, inter alia, that he understood the charges against him, he was giving up his right to a trial by jury, and he was pleading guilty to all charges . After the trial court addressed Defendant, the following exchange took place between the prosecutor, defense counsel, and the trial court:
        [PROSECUTOR]: Mr. Johnston, will you stipulate to a factual basis, waive formal presentation?

        [DEFENSE COUNSEL] Mr. Johnston: Yes, we do.

        [PROSECUTOR]: Judge, under the circumstances of the continued judgment, I don't know if you want any facts.

        THE COURT: No.

As part of the plea agreement, Defendant promised to testify truthfully against a co-defendant. Thus, the trial court continued sentencing until scheduled by the State so that Defendant could so testify. After the co-defendant pled guilty on 10 April 2006,Defendant's sentencing hearing was scheduled for 6 June 2006. On 26 May 2006, Defendant wrote a letter “To The Judge” seeking a new attorney and asking for “help.” The trial court did not appoint new counsel, and the sentencing hearing was held as scheduled. Pursuant to the plea agreement, the court consolidated all charges against Defendant and sentenced him in the mitigated range as a prior record level IV to 71 to 95 months in prison . Defendant appeals.
    On appeal, Defendant argues that the trial court erred in (1) accepting his plea in the absence of a factual basis and (2) sentencing him at prior record level IV. We find no error.
_________________________
    “In North Carolina, a defendant's right to appeal in a criminal proceeding is purely a creation of state statute.” State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Pursuant to section 15A-1444(a1) of North Carolina's General Statutes:
        A defendant who has . . . entered a plea of guilty . . . to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.

N.C. Gen. Stat. § 15A-1444(a1) (2005). A defendant who has entered a plea of guilty is, however, entitled to appeal as a matter ofright the issue of whether the sentence imposed results from an incorrect finding of the defendant's prior record level. N.C. Gen. Stat. § 15A-1444(a2)(1) (2005).
    In this case, Defendant entered a plea of guilty and was sentenced in the mitigated range. Thus, he is not entitled to appeal as a matter of right the issue of whether the trial court erred in accepting his plea in the absence of a factual basis. N.C. Gen. Stat. § 15A-1444(a1). Additionally, Defendant has not petitioned this Court for review of this issue by writ of certiorari, and we decline to treat Defendant's appeal as such. Defendant is only entitled to a determination of whether the trial court correctly calculated his prior record level. N.C. Gen. Stat. § 15A-1444(a2)(1).
    Before imposing a felony sentence, the trial judge must determine a defendant's prior record level pursuant to N.C. Gen. Stat. § 15A-1340.14. N.C. Gen. Stat. § 15A-1340.13(b) (2005). A prior conviction, in turn, can be proved 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) (2005). “The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists . . . .” Id.
    According to the prior record level worksheet submitted by the State to the trial court, Defendant had nine prior record points for previous convictions and was prior record level IV for sentencing. Defense counsel expressly stipulated that Defendant was prior record level IV for sentencing . Thus, the State met its burden of proving the existence of the prior convictions. See State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005) (finding trial court's imposition of felony sentence proper where defense counsel stipulated to defendant's prior record level worksheet which showed one point for a prior conviction). Moreover, Defendant does not now argue that any of the prior convictions used in calculating his prior record level do not, in fact, exist. Defendant's argument is overruled.
    AFFIRMED.
    Judges McGEE and SMITH concur.
    Report per Rule 30(e).

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