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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 04 December 2007
STATE OF NORTH CAROLINA
v. Buncombe County
No. 05 CRS 9564, 58306
ARMANDO MATOS ROSARIO
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.
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
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.
REMANDED FOR RESENTENCING.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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