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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
20 November 2007
STATE OF NORTH CAROLINA
v. Dare County
Nos. 05 CRS 53613
KELLY ZIRKLE 06 CRS 3069 - 3077
Appeal by defendant from judgments entered 14 December 2006 by
Judge Jerry R. Tillett in Dare County Superior Court. Heard in the
Court of Appeals 16 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Yvonne B. Ricci, for the State.
Mercedes O. Chut, for defendant-appellant.
Kelly Zirkle (defendant) appeals from judgments entered
after pleading guilty to eight counts of forgery of instrument
pursuant N.C. Gen. Stat. § 14-119, eight counts of uttering a
forged instrument pursuant N.C. Gen. Stat. § 14-120, obtaining
property by false pretenses pursuant N.C. Gen. Stat. § 14-100, and
possession of more than five counterfeit instruments pursuant N.C.
Gen. Stat. § 14-119(b). We vacate and remand for resentencing.
On 29 July 2006, defendant was indicted: (1) for eight counts
of forgery and uttering using her home computer and printer to
create personal checks with nonexistent bank account numbers and
bank accounts, which defendant used these bogus checks to purchaseand obtain merchandise at K-Mart, Food Lion, and Home Depot during
the months of November and December 2005; (2) for obtaining
property by false pretense for presenting counterfeit checks for
the purchase of gift cards and merchandise from Wal-Mart in Kitty
Hawk, North Carolina from 21 November 2005 to 5 December 2005; and
(3) possessing more than five counterfeit instruments without
authority and with the intent to injure or defraud.
At trial on 14 December 2006, defendant entered a plea
agreement to eight counts of forgery, eight counts of uttering, one
count of obtaining property by false pretenses, and one count of
possession of more than five counterfeit instruments. The trial
court found defendant had three prior record points for convictions
in Maryland and sentenced her as a Prior Record Level II offender.
The trial court sentenced defendant to pay restitution on
seventeen fraudulent checks she had written and to: (1) a term of
fifteen to eighteen months imprisonment for possessing counterfeit
instruments; (2) a consecutive term of eight to ten months
imprisonment for obtaining property by false pretenses; and (3)
eight consecutive terms of eight to ten months imprisonment for
forgery and uttering. The trial court suspended defendant's
sentences for forgery and uttering and placed her on supervised
probation for sixty months. Defendant appeals.
Defendant argues the trial court erred in calculating her
prior record level by accepting the parties' stipulation to her
out-of-state convictions as being substantially similar to NorthCarolina convictions for sentencing purposes.
III. Prior Record Level
Defendant contends the trial court erred in calculating her
prior record level, asserts she was assigned one point for
committing the offense while on probation, and cites State v.
Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006), in support of her
position. We find defendant's reliance on Hanton to be misplaced
because no stipulation at trial appears in the record. Defendant
further asserts no stipulation in the plea agreement or evidence
presented at trial shows she had been on probation and that any
probation would have been in a foreign jurisdiction. We agree.
N.C. Gen. Stat. § 15A-1340.14(f) (2005) provides the State
bears the burden of proving by the preponderance of the evidence
that a prior conviction exists and that the offender before the
court is the same person as the offender named in the prior
conviction. A defendant's prior convictions may be proven by any
of the following methods:
(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
In the instant case, insufficient evidence was presented to
prove defendant's prior record level. The State presented noevidence in accordance with the statute above and there are no
stipulations in the plea agreement or in the record. Id. The
trial court apparently relied on the prior conviction worksheet and
concluded that defendant had three prior record level points.
The prior record level worksheet standing alone is
insufficient to prove the existence of prior convictions. See
State v. Riley, 159 N.C. App. 546, 557, 583 S.E.2d 379, 387 (2003)
(A statement by the State that an offender has nine points, and
thus is a record level IV, if only supported by a prior record
level worksheet, is not sufficient to meet the catchall provision
found in [N.C. Gen. Stat. §] 15A-1340.14(f)(4), even if uncontested
by defendant. (citations omitted)).
Because the existence of the out-of-state convictions was
neither proven by the State nor stipulated to by defendant, it is
unnecessary for us to reach the issue of whether the out-of-state
offenses were substantially similar to any offenses under the North
Carolina statute. The trial court erred in calculating defendant's
prior record level and in sentencing her in reliance thereon. We
vacate and remand for resentencing.
Vacated and Remanded for Resentencing.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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