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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-401


Filed: 04 December 2007


    v.                        Buncombe County                                     No. 05 CRS 9564, 58306

    Upon defendant's Petition for Writ of Certiorari seeking review of two judgments entered 8 June 2006 by Judge Laura J. Bridges in Buncombe County Superior Court. Heard in the Court of Appeals 16 October 2007.

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

    Sue Genrich Berry, for the defendant-appellant.

    STEELMAN, Judge.

    A stipulation of counsel is not effective to establish that defendant's out-of-state convictions are substantially similar to a North Carolina offense.

Factual and Procedural Background
    Armando Matos Rosario (“defendant”) was found guilty by a jury of First Degree Sex Offense and Taking Indecent Liberties with a child on 8 June 2006. The trial court found defendant to be a prior record Level IV for felony sentencing purposes based upon three prior convictions in the State of Connecticut. Defendant received active sentences of 339 to 416 months and 25 to 30 months imprisonment, with the sentences to run concurrently. On 3November 2006, this Court granted defendant's Petition for Writ of Certiorari to review these judgments.
Determination of Prior Sentencing Level
    In his only argument, defendant contends that the trial court erred in not ruling as to whether defendant's out-of-state convictions were substantially similar to an offense under North Carolina law. We agree.
    At the sentencing hearing, counsel for the State and the defendant stipulated to defendant's three prior convictions, “including the classification and points assigned to any out-of- state convictions, and agree with the defendant's prior record level or prior convictions level as set out in Section II” of the Felony Sentencing Worksheet. Based upon this stipulation, the trial judge found that the defendant had nine prior record points and sentenced him at a prior felony record level IV.
    The question presented is whether this express stipulation of counsel as to defendant's out-of-state convictions is sufficient to support the trial court's prior record determination, in the absence of an independent legal determination by the trial court. In State v. Palmateer, 179 N.C. App. 579, 634 S.E.2d 592 (2006), this Court determined that it was not. We specifically held:
        However, our Court recently held in State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006), that “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.” . . . Our Court further stated that “'[s]tipulations as to questions of law are generally held invalidand ineffective, and not binding upon the courts, either trial or appellate.'”

Palmateer, 179 N.C. App. at 581, 634 S.E.2d at 593 (internal citations omitted).
     We are bound by the decisions of prior panels of this Court on the identical issue. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989). Accordingly, we hold that the stipulation of counsel was ineffective to support the trial court's prior record determination at sentencing.
    This matter is remanded to the trial court for a new sentencing hearing consistent with this opinion.
    Judges WYNN and GEER concur.
    Report per Rule 30(e).

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