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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-81


Filed: 21 August 2007


        v.                    Lenior County
                            No. 04 CRS 51802

    Appeal by defendant from judgment entered 19 April 2005 by Judge Ernest B. Fullwood in Lenoir County Superior Court. Heard in the Court of Appeals 6 August 2007.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Chris Z. Sinha, for the State.

    James N. Freeman, Jr., for defendant-appellant.

    JACKSON, Judge.

    Keith Jones (“defendant”) appeals from the judgment entered by the trial court upon his plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970), to a charge of attempted second degree rape. For the reasons stated below, we remand for resentencing.
    On 5 January 2005, the Lenoir County grand jury indicted defendant on a charge of second degree rape involving his wife (“victim”). At defendant's trial on 19 April 2005, the victim began testifying about the incident which occurred on 18 April 2004. Defense counsel requested a bench conference during the victim's testimony, and the trial court afterwards directed thejury to take its lunch recess. Following the recess, the State arraigned defendant on a charge of attempted second degree rape, and defendant then entered an Alford plea to the amended charge.
    The following exchange occurred during the trial court's examination of defendant:
        Q.    I'm advised from your transcript of plea the following are all the terms and conditions of your plea:

            That the state shall allow you to enter a plea of guilty to one count of attempted second degree rape at level three punishment within the mitigated range of 61 to 83 months in lieu of the original charge of second degree rape.

            Is this correct as being your full plea arrangement?

        A.    Yes, sir.

        . . . . 

        Q.    Do you have any questions about what I've said to you or about anything else connected with your case to this point?

        A.    No, sir.
After the trial court completed its examination of defendant, the State asked if “defendant would stipulate there is a factual basis and incorporate the victim's testimony from the trial as the factual basis.” Defense counsel stated that defendant did stipulate and had no objection to incorporating the victim's testimony. The trial court then accepted defendant's plea.
    When asked by the trial court if there was a showing for defendant, defense counsel responded as follows:
        I've discussed this with my client. We felt it in his best interest to plead guilty. We've already gone over the transcript, 61 to 83 months. My client just asks he be given credit for the one year he served here at the Lenoir County jail and also if DOC can arrange it at some point during this sentence if work release could be provided, if you could suggest that.
After asking if there was anything further from the State, the trial court made the following findings and conclusions:
        Madam Clerk, in this matter the court finds this is a Class D felony. Court finds the prior record points of this defendant are six. Consequently prior record level is three.

        Pursuant to the plea arrangement, court finds statutory mitigating factor number 15. Sentence the defendant to a minimum of 61 months and maximum of 83 months in the custody of the North Carolina Department of Corrections. Let him have credit against this sentence for whatever time he's spent in confinement prior to the date of this judgment as a result of these charges.
The trial court then set attorney fees, recommended defendant for immediate work release, and asked “[a]nything further that either party would have the court to confer in this matter?” The State responded in the negative, and defense counsel stated “[n]othing further.” From the trial court's judgment, defendant appeals.
    Defendant contends the trial court erred in determining his prior record level as a result of the State's failure to provide proper proof of his prior convictions. He argues that he did not stipulate to the prior record level worksheet, and that the State did not offer any proof at the sentencing hearing of the six prior convictions. We agree and remand for resentencing.
    In determining a defendant's prior record level, “[t]he 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). A prior conviction may be proven by:
        (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.
Id. The transcript from defendant's trial, plea, and sentencing, contain no reference to his prior record worksheet by the trial court or either of the parties. The State did not tender to the trial court, or enter into evidence, any statutorily authorized means of proof of defendant's prior convictions. See State v. Jeffery, 167 N.C. App. 575, 580, 605 S.E.2d 672, 675 (2004).
    Defendant's acknowledgment that he was pleading guilty to the charge “at level three punishment within the mitigated range of 61 to 83 months” was “merely indicative of the bargain into which he entered with the State.” Id. at 581, 605 S.E.2d at 676. Neither this acknowledgment nor defense counsel's “nothing further” comment after the trial court sentenced defendant can “reasonably be construed as a stipulation by defendant that he had been convicted of the charges listed on the worksheet.” State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002). This Court notes that defendant has neither asserted in his appellate brief that any of the prior convictions listed on the worksheet are erroneous nor contested the actual determination of his prior record level by thetrial court. However, since the State failed to introduce evidence of defendant's prior record level other than the worksheet and defendant did not stipulate to a prior record level III, defendant is entitled to a new sentencing hearing for a determination of his prior record points and prior record level. See Jeffery, 167 N.C. App. at 582, 605 S.E.2d at 676. The State and defendant may both offer additional evidence at the resentencing hearing.
    Remanded for resentencing.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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