STATE OF NORTH CAROLINA
v. Lenior County
No. 04 CRS 51802
KEITH JONES
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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