State v Welton
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-235 NORTH CAROLINA COURT OF APPEALS Filed: 18 September 2012 STATE OF NORTH CAROLINA v. Iredell County Nos. 09 CRS 056823-24, 09 CRS 056831-33 WILLIAM DARRELL WELTON, JR. Appeal by Defendant from judgments entered 18 July 2011 by Judge Joe Crosswhite in Superior Court, Iredell County. Heard in the Court of Appeals 28 August 2011. Attorney General Roy Cooper, by Assistant Attorney General Kimberly Grande, for the State. Don Willey for Defendant-Appellant. McGEE, Judge. William Darrell Welton, Jr. (Defendant) pleaded guilty to seven counts of assault with a firearm on a law enforcement officer, four counts of assaulting a government official with a deadly weapon, two counts of attempted first-degree burglary, one count of assault with a deadly weapon with intent to kill or cause serious injury, one count of felony speeding to elude, and -2one count of assaulting a government official. were committed on 25 August 2009. agreement, the charges were Pursuant to Defendant's plea consolidated felony and four class E felonies[,] other." Defendant's plea These offenses "into one class C each consecutive to the agreement further provided that Defendant would receive an active sentence of 116 to 149 months' imprisonment for assault with a deadly weapon with intent to kill or cause serious injury, "followed by four . . . sentences of 34-50 Defendant months had each[.]" a prior The record trial level court of determined III Defendant as set forth in his plea agreement. and that sentenced Defendant appeals the trial court's determination of his prior record level. Defendant argues on appeal that the trial court erred in sentencing him as a prior record level III offender. Defendant contends the State failed to prove by a preponderance of the evidence that Defendant's prior out-of-state conviction for "petit larceny" was substantially similar to North Carolina's crime of misdemeanor larceny. At the sentencing hearing, Defendant stipulated to the existence of his prior conviction for petit larceny in New York and that petit larceny was substantially similar to misdemeanor larceny in North Carolina. This issue is controlled by this Court's decision in State v. Palmateer, 179 N.C. App. 579, 634 S.E.2d 592 (2006). In -3Palmateer, the defendant stipulated to the existence classification of prior out-of-state convictions. 634 S.E.2d at 593. whether a statutes is court.'" similar a Id. at 581, This Court observed that "'the question of conviction substantially and under to question an of an out-of-state offense law to be under statute North resolved by is Carolina the trial Id. (quoting State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600, 604 (2006)). "'[s]tipulations as to This Court then observed that questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.'" therefore concluded regarding Id. that (citation "the [d]efendant's omitted). stipulation in out-of-state This the Court worksheet convictions ineffective" and remanded the case for resentencing. was Id. at 582, 634 S.E.2d at 594 (citation omitted). Regarding whether a prior out-of-state conviction is substantially similar to a North Carolina offense, this Court has consistently held in accordance stipulations are ineffective. App. ___, ___, 715 repeatedly held a S.E.2d the principle that See State v. Burgess, ___ N.C. 867, defendant's with 871 (2011) stipulation ("This to the Court has substantial similarity of offenses from another jurisdiction is ineffective because the issue of whether an offense from another -4jurisdiction is substantially similar to a North Carolina offense is a question of law."); accord State v. Bohler, 198 N.C. App. 631, 636-37, 681 S.E.2d 801, 806 (2009). Thus, in the present case, Defendant's stipulation regarding the similarity of his out-of-state conviction to a North Carolina conviction was ineffective. We must therefore address whether the State offered sufficient evidence to support the trial court's finding of substantial similarity. N.C. Gen. Stat. § 15A-1340.14(e) (2011) governs the classification of out-of-state convictions for the purpose of prior record level determinations. N.C.G.S. § 15A-1340.14(e) provides: Except as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I -5felony or higher, the conviction is treated as that class of felony for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points. Thus, the burden is on the State to prove by a preponderance of the evidence that an out-of-state conviction is substantially similar to a Class A1 or Class 1 misdemeanor in North Carolina. In the present case, the State presented the following to the trial court: [The State:] We had a prior - I had prepared a prior record level work sheet showing him at a prior record Level Three with six points and that includes convictions for petit larceny. Conviction date 10-16, 2001 out of New York. I have that as a Class One misdemeanor, and I think [Defendant's Counsel] said that he would stipulate and agree that that is substantially similar to our misdemeanor larceny, thus giving him one point for felony sentencing. Is that correct? [Defendant's Counsel]: I would, your Honor. That's not my issue with that conviction, but I certainly acknowledge that petit larceny and misdemeanor larceny, certainly look like they add up. The record contains copies of New York's statute governing driving while convictions. impaired, of which Defendant had two prior The record also contains a copy of a page from the -6New York Criminal Law Handbook which details the "Defense of Infancy." whether This Defendant exhibit was a was relevant juvenile conviction for petit larceny. at to the an issue time of involving his prior The prior conviction worksheet lists one prior conviction of "pettit [sic] larceny[,]" but does not include a statute number for the New York crime of petit larceny. In Burgess, this Court noted that: Although the State presented the trial court with Exhibit 3, printed copies of out-ofstate statutes purportedly serving as the basis for the nine out-of-state convictions the State used in computing defendant's prior record level, the "out-of-state crimes [on the State's worksheet] were not identified by statutes," but "only by brief and non-specific descriptions" and "could arguably describe more than one specific South Carolina and [Florida] crime," which makes it unclear whether those statutes were the basis for defendant's convictions. Burgess, ___ N.C. App. at ___, 715 S.E.2d at 870. The Court in Burgess emphasize[d] that "copies of the . . . statutes [from another jurisdiction], and comparison of their provisions to the criminal laws of North Carolina, [a]re sufficient to prove by a preponderance of the evidence that the crimes of which defendant was convicted in those states were substantially similar to classified crimes in North Carolina for purposes of G.S. § 15A 1340.14(e)." -7Id. at ___, 715 S.E.2d at 870 (citation omitted). The Court in Burgess ultimately held that the State had failed to prove the substantial similarity between the defendant's out-of-state convictions and a Class A1 or Class 1 misdemeanor because the State had failed to present sufficient evidence. noted that "[t]he State and defendant evidence at the resentencing hearing." may Id. offer The Court additional Id. Likewise, in State v. Wright, ___ N.C. App. ___, 708 S.E.2d 112, disc. review denied, 710 S.E.2d 10, ___ S.E.2d ___ (2011), "the State provided evidence that [d]efendant was convicted of 'robbery 3rd degree' under Ct. Gen. Stat. § 53a 136, but did not provide evidence of the New York statute under which [d]efendant was convicted." Id. at ___, 708 S.E.2d at 126. This Court noted that "the State neither provided copies of the applicable Connecticut and New York statutes, nor provided a comparison of their provisions to the criminal laws of North Carolina." Id. Further, not this Court observed that "the trial court did analyze or determine whether the out-of-state convictions were substantially similar to North Carolina offenses." Id. This Court held that "[s]ince the State failed to demonstrate the substantial similarity of [d]efendant's out-of-state convictions to North Carolina crimes and since the trial court failed to determine whether the out-of-state convictions were -8substantially similar to North Carolina offenses, we must remand for resentencing." Id. In the present case, as in Burgess and Wright, we conclude the State failed to prove by a preponderance of the evidence whether the out-of-state convictions were substantially similar to North Carolina offenses. The State failed to present even a copy of the New York statute governing petit larceny or to argue that it was substantially North Carolina. have accepted similar to misdemeanor larceny in Rather, the trial court and the State appear to Defendant's stipulation and ceased to present evidence on what they understood to be a resolved issue. therefore conclude We that, by accepting Defendant's stipulation and assigning one point for Defendant's petit larceny conviction without conducting its own analysis based on proof offered by the State regarding substantial similarity to a North Carolina offense, the trial court erred. In the present case, the trial court found that Defendant had five prior record level points. Prior to its amendment effective 1 December 2009 and applicable to offenses committed on or after that date, N.C.G.S. § 15A-1340.14(c) provided that, for felony purposes, prior record level III was assigned for individuals with five to eight points. See Act of August 28, 2009, ch. 555, sec. 1, 2009 N.C. Sess. Laws. 555. If the one -9point assigned, based on Defendant's conviction for petit larceny, is removed, Defendant would classify as a prior record level II. Therefore, the trial court's error in the present case was prejudicial to Defendant. Under the holdings of Wright and Burgess, we must remand for resentencing. Remanded for resentencing. Judges BEASLEY and THIGPEN concur. Report per Rule 30(e).
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