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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 August 2007
STATE OF NORTH CAROLINA
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.
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
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
[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
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
, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc.
, 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
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.
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
(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
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.
Judges McGEE and SMITH concur.
Report per Rule 30(e).
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