LEVINSON, Judge.
Lawrence Hanton (defendant) was convicted of second-degree murder on 24 March 1999. The State presented the trial court with a [251]*251prior record level worksheet that included several prior convictions of defendant in the State of New York. Based on the worksheet, the trial court found that defendant had a prior record Level V. The trial court further found one aggravating factor and one mitigating factor, concluding that the aggravating factor outweighed the mitigating factor. Defendant was sentenced to an aggravated term of 353 to 433 months imprisonment. Defendant appealed to this Court. We remanded defendant’s case for resentencing, concluding that the trial court had erred in sentencing defendant as a Level V offender when the State had not shown by a preponderance of the evidence that the out-of-state convictions were substantially similar to North Carolina offenses. State v. Hanton, 140 N.C. App. 679, 690-91, 540 S.E.2d 376, 383 (2000) (hereinafter Hanton I).
Defendant was resentenced on 22 June 2004. The State presented a prior record level worksheet in which three prior convictions that occurred in New York were used to calculate defendant’s prior record level: (1) second-degree robbery, (2) third-degree robbery, and (3) attempted assault in the second-degree. The State presented the trial court with certified copies of these three felony convictions and with copies of the New York statutes for “robbery; defined,” “robbery in the third degree,” “robbery in the second degree,” and “assault in the second degree.”
N.C. Gen. Stat. § 15A-1340.14(e) (2003) governs the classification of prior convictions from other states for purposes of determining a defendant’s prior record level. Pursuant to this statute, the trial court found defendant’s New York convictions for second-degree robbery on 15 January 1985, and for third-degree robbery on 3 March 1987, to be substantially similar to North Carolina common law robbery. The trial court therefore classified both of these New York robbery convictions as Class G felonies, and assigned four record points to each offense. The trial court further found that defendant’s New York conviction for attempted second-degree assault was substantially similar to North Carolina’s assault inflicting serious injury, which is a Class A1 misdemeanor, carrying one point. Defendant was therefore assigned a total of nine prior record points, which gave him a prior record Level IV. Defendant presented evidence of mitigating factors to the trial court, and the trial court sentenced defendant to 251 to 311 months in prison, the statutory maximum sentence in the presumptive range. Defendant appeals.
[252]*252I.
Defendant first argues that the trial court erred by sentencing defendant to 251 to 311 months in prison where the State did not prove to the jury beyond a reasonable doubt that defendant’s out-of-state convictions were substantially similar to North Carolina offenses. Specifically, defendant asserts that he is entitled to another resentencing in light of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), because the issue as to whether the out-of-state felonies were substantially similar to North Carolina offenses was not submitted to the jury and had the effect of increasing the penalty for defendant’s crime.
In Blakely, the United States Supreme Court held that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Blakely, 542 U.S. at 296, 159 L. Ed. 2d at 409 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed, 2d 435, 455 (2000)). The United States Supreme Court further stated that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413-14. In applying Blakely to our structured sentencing scheme, our Supreme Court determined that our “presumptive range” is the equivalent of “statutory maximum.” State v. Allen, 359 N.C. 425, 432, 615 S.E.2d 256, 262 (2005). Thus, the rule of Blakely, as applied to North Carolina’s structured sentencing scheme, is: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.” Allen, 359 N.C. at 437, 615 S.E.2d at 265 (emphasis added).
Although defendant was not sentenced beyond the presumptive range for a Level IV offender, he argues that the trial court’s findings regarding the similarity between the New York offenses and the North Carolina offenses increased defendant’s prior record level from Level III to Level IV. Defendant asserts that “[b]ut for the trial court’s findings that the three out-of-state offenses were to be classified as two Class G felonies and a Class A1 misdemeanor, these three offenses would have been classified as three Class I felonies” under N.C.G.S. § 15A-1340.14(e). Accordingly, defendant would have had only six prior record points and would have been only a Level III offender. Defendant thereby argues that he was sentenced in violation of [253]*253Blakely because without these findings by the trial court, the “statutory maximum” sentence that defendant could have received was 220 to 273 months, which is the maximum presumptive range sentence for a Level III offender. See N.C. Gen. Stat. § 15A-1340.17(c) and (e) (2003). Because of the trial court’s findings of substantial similarity, defendant was sentenced to an additional 31 to 38 months in prison.
Defendant concedes that Blakely exempts “the fact of a prior conviction” from its requirement that facts “that increase[] the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” See Blakely, 542 U.S. at 328, 159 L. Ed. 2d at 412. However, defendant does not argue that his convictions in New York for the prior offenses should have been submitted to the jury. Rather, defendant argues that “the fact that the three New York offenses were substantially similar to two Class G felonies and a Class A1 misdemeanor in North Carolina were facts that increasefd] the penalty for [the] crime beyond the statutory maximum.” Defendant accordingly argues that the question of whether the New York convictions were substantially similar to North Carolina offenses “must [have been] submitted to a jury, and proved beyond a reasonable doubt.”
Defendant supports his argument by citing language in Hanton I. In defendant’s first appeal, he argued that “the question of substantial similarity is a legal issue” that must be decided by the trial court, and that a defendant could not stipulate to whether an out-of-state offense was substantially similar to a North Carolina offense. However, our Court stated: “While we agree [with the State] that a defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses, we do not agree that defendant did so here.” Hanton I, 140 N.C. App.
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LEVINSON, Judge.
Lawrence Hanton (defendant) was convicted of second-degree murder on 24 March 1999. The State presented the trial court with a [251]*251prior record level worksheet that included several prior convictions of defendant in the State of New York. Based on the worksheet, the trial court found that defendant had a prior record Level V. The trial court further found one aggravating factor and one mitigating factor, concluding that the aggravating factor outweighed the mitigating factor. Defendant was sentenced to an aggravated term of 353 to 433 months imprisonment. Defendant appealed to this Court. We remanded defendant’s case for resentencing, concluding that the trial court had erred in sentencing defendant as a Level V offender when the State had not shown by a preponderance of the evidence that the out-of-state convictions were substantially similar to North Carolina offenses. State v. Hanton, 140 N.C. App. 679, 690-91, 540 S.E.2d 376, 383 (2000) (hereinafter Hanton I).
Defendant was resentenced on 22 June 2004. The State presented a prior record level worksheet in which three prior convictions that occurred in New York were used to calculate defendant’s prior record level: (1) second-degree robbery, (2) third-degree robbery, and (3) attempted assault in the second-degree. The State presented the trial court with certified copies of these three felony convictions and with copies of the New York statutes for “robbery; defined,” “robbery in the third degree,” “robbery in the second degree,” and “assault in the second degree.”
N.C. Gen. Stat. § 15A-1340.14(e) (2003) governs the classification of prior convictions from other states for purposes of determining a defendant’s prior record level. Pursuant to this statute, the trial court found defendant’s New York convictions for second-degree robbery on 15 January 1985, and for third-degree robbery on 3 March 1987, to be substantially similar to North Carolina common law robbery. The trial court therefore classified both of these New York robbery convictions as Class G felonies, and assigned four record points to each offense. The trial court further found that defendant’s New York conviction for attempted second-degree assault was substantially similar to North Carolina’s assault inflicting serious injury, which is a Class A1 misdemeanor, carrying one point. Defendant was therefore assigned a total of nine prior record points, which gave him a prior record Level IV. Defendant presented evidence of mitigating factors to the trial court, and the trial court sentenced defendant to 251 to 311 months in prison, the statutory maximum sentence in the presumptive range. Defendant appeals.
[252]*252I.
Defendant first argues that the trial court erred by sentencing defendant to 251 to 311 months in prison where the State did not prove to the jury beyond a reasonable doubt that defendant’s out-of-state convictions were substantially similar to North Carolina offenses. Specifically, defendant asserts that he is entitled to another resentencing in light of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), because the issue as to whether the out-of-state felonies were substantially similar to North Carolina offenses was not submitted to the jury and had the effect of increasing the penalty for defendant’s crime.
In Blakely, the United States Supreme Court held that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Blakely, 542 U.S. at 296, 159 L. Ed. 2d at 409 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed, 2d 435, 455 (2000)). The United States Supreme Court further stated that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413-14. In applying Blakely to our structured sentencing scheme, our Supreme Court determined that our “presumptive range” is the equivalent of “statutory maximum.” State v. Allen, 359 N.C. 425, 432, 615 S.E.2d 256, 262 (2005). Thus, the rule of Blakely, as applied to North Carolina’s structured sentencing scheme, is: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.” Allen, 359 N.C. at 437, 615 S.E.2d at 265 (emphasis added).
Although defendant was not sentenced beyond the presumptive range for a Level IV offender, he argues that the trial court’s findings regarding the similarity between the New York offenses and the North Carolina offenses increased defendant’s prior record level from Level III to Level IV. Defendant asserts that “[b]ut for the trial court’s findings that the three out-of-state offenses were to be classified as two Class G felonies and a Class A1 misdemeanor, these three offenses would have been classified as three Class I felonies” under N.C.G.S. § 15A-1340.14(e). Accordingly, defendant would have had only six prior record points and would have been only a Level III offender. Defendant thereby argues that he was sentenced in violation of [253]*253Blakely because without these findings by the trial court, the “statutory maximum” sentence that defendant could have received was 220 to 273 months, which is the maximum presumptive range sentence for a Level III offender. See N.C. Gen. Stat. § 15A-1340.17(c) and (e) (2003). Because of the trial court’s findings of substantial similarity, defendant was sentenced to an additional 31 to 38 months in prison.
Defendant concedes that Blakely exempts “the fact of a prior conviction” from its requirement that facts “that increase[] the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” See Blakely, 542 U.S. at 328, 159 L. Ed. 2d at 412. However, defendant does not argue that his convictions in New York for the prior offenses should have been submitted to the jury. Rather, defendant argues that “the fact that the three New York offenses were substantially similar to two Class G felonies and a Class A1 misdemeanor in North Carolina were facts that increasefd] the penalty for [the] crime beyond the statutory maximum.” Defendant accordingly argues that the question of whether the New York convictions were substantially similar to North Carolina offenses “must [have been] submitted to a jury, and proved beyond a reasonable doubt.”
Defendant supports his argument by citing language in Hanton I. In defendant’s first appeal, he argued that “the question of substantial similarity is a legal issue” that must be decided by the trial court, and that a defendant could not stipulate to whether an out-of-state offense was substantially similar to a North Carolina offense. However, our Court stated: “While we agree [with the State] that a defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses, we do not agree that defendant did so here.” Hanton I, 140 N.C. App. at 690, 540 S.E.2d at 383. “Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.... This rule is more important in criminal cases, where the interests of the public are involved.” State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (citations omitted). Defendant argues that because our Court stated in Hanton I that a “defendant may stipulate to the question of substantial similarity between out-of-state and in-state offenses, the question must be one of fact and not of law.” Defendant further asserts that if the question of substantial similarity “were a question of law, then it would violate public policy to allow a defendant to stipulate to it.” See Prevette, 39 N.C. App. at 472, 250 S.E.2d at 683 (“The due administration of the criminal law cannot be left to the stipulations of the parties.”).
[254]*254However, contrary to defendant’s argument, the language cited by defendant that “a defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses,” see Hanton I, 140 N.C. App. at 690, 540 S.E.2d at 383, is not controlling. In Hanton I, our Court addressed defendant’s contention that the State had not met its burden under N.C.G.S. § 15A-1340.14(e) to show that defendant’s New York convictions should be classified as a higher class felony than Class I. Hanton I, 140 N.C. App. at 689-90, 540 S.E.2d at 382-83. The State had argued that defendant had stipulated to the fact that the New York offenses were substantially similar to the North Carolina offenses, but we found that defendant had not so stipulated, and thus that the State had not met its burden under N.C.G.S. § 15A-1340.14(e). Hanton I, 140 N.C. App. at 690, 540 S.E.2d at 383. Our statement that “a defendant might stipulate that out-of-state offenses are substantially similar to corresponding North Carolina felony offenses” was not necessary to our decision to remand for resentencing. See id. “Language in an opinion not necessary to the decision is obiter dictum and later decisions are not bound thereby.” Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985); see also Kornegay v. Broadrick, 119 N.C. App. 326, 327, 458 S.E.2d 274, 275 (1995). In Hanton I, we did not consider the issue before us in the present case, as to whether or not the question of substantial similarity between out-of-state and in-state offenses was a question of law. Therefore, our Court’s statement in Hanton I, that a defendant might stipulate to this question, is non-binding dicta.
Upon examination of the issue, we conclude that whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court, not the jury. Determining a defendant’s prior record involves “a complicated calculation of rules and statutory applications].]” State v. Van Buren, 98 P.3d 1235, 1241 (Wash. Ct. App. 2004). “This calculation is a mixed question of law and fact. The ‘fact’ is the fact of the conviction,” id., which under Blakely is not a question for a jury. See Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412. “The law is the proper application of the law to the fact of [a] defendant’s criminal record],]” which often involves, as the present case does, comparing “the elements of a defendant’s prior convictions under the statutes of foreign jurisdictions with the elements of crimes under [North Carolina] statutes.” Van Buren, 98 P.3d at 1241. The comparison of the elements of an out-of-state criminal offense to those of a North Carolina criminal offense “does not require the resolution of disputed facts.” [255]*255Id. Rather, it involves statutory interpretation, which is a question of law. See Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 588, 492 S.E.2d 369, 371 (1997) (“Statutory interpretation presents a question of law.”).
Defendant argues that the United States Supreme Court’s recent decision in Shepard v. United States, - U.S. -, 161 L. Ed. 2d 205 (2005), supports defendant’s argument that a jury must decide the question of substantial similarity. However, our review of Shepard shows that it is inapposite to the present case. The issue before the United States Supreme Court in Shepard was the extent of what a sentencing court, in the context of the enhanced sentencing provisions of the Armed Career Criminals Act of 1986, 18 USC § 924(e), could review in determining whether a guilty plea of an offense defined in a nongeneric statute “necessarily admitted elements of the generic offense.” Id. at-, 161 L. Ed. 2d at 218. The Supreme Court held that a sentencing court could not, without violating the Sixth Amendment, “look beyond the charging document, the terms of a plea agreement, the plea colloquy, the statutory definition, or any explicit finding of the trial judge to which the defendant assented to determine a disputed fact about a prior conviction.” United States v. Collins, 412 F.3d 515, 521 (4th Cir. 2005) (summarizing Shepard) (emphasis added); see also Shepard, - U.S. at - n.4 & -, 161 L. Ed. 2d at 216 n.4 & 218. Since the trial court in the present case is not looking beyond the statutory definition of the New York offenses, and since the present case does not involve comparing nongeneric statutory offenses with generic offenses, Shepard has no bearing on the issue before us.
We conclude 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. Furthermore, the question is so related to a trial court’s calculation of a prior record that it is covered by the exception to the Blakely rule that “the fact of a prior conviction” does not need to be proven to a jury beyond a reasonable doubt. See Blakely, 542 U.S. at 301, 159 L. Ed. 2d at 412. The trial court in the present case did not err in not requiring that this issue be proven to the jury beyond a reasonable doubt, and defendant is not entitled to another resentencing in light of Blakely.
[256]*256II.
Defendant similarly argues that the trial court erred by sentencing defendant to 251 to 311 months in prison where the State did not allege in the indictment that defendant’s out-of-state convictions were substantially similar to North Carolina offenses. Defendant asserts that our Supreme Court, in State v. Lucas, held that “any fact that increases the maximum penalty for a crime must be alleged in an indictment.” See Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001), overruled in part by Allen, 359 N.C. at 437, 615 S.E.2d at 265. However, defendant misstates the holding in Lucas, which only referred to facts that would enhance a sentence under N.C. Gen. Stat. § 15A-1340.16A, which allows for sentence enhancement for carrying a firearm. See Lucas, 353 N.C. at 597-98, 548 S.E.2d at 731 (“[I]n every instance where the State seeks an enhanced sentence pursuant to N.C.G.S. § 15A-1340.16A, it must allege the statutory factors supporting the enhancement in an indictment[.]”). The evaluation of the elements in defendant’s prior New York convictions fell under N.C.G.S. § 15A-1340.14(e), and was thus part of traditional sentencing. Defendant’s sentence was enhanced because of his prior felonies, not because of any aggravating factors. Therefore, Lucas is inapplicable to the present case.
Moreover, the rule in Lucas cited by defendant was recently overruled by our Supreme Court. Allen, 359 N.C. at 438, 615 S.E.2d at 265 (overruling the “language of Lucas, requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment”). Furthermore, even before Allen, our Supreme Court, in examining short-form indictments, “recognized that the Fifth Amendment’s guarantee to indictment by a grand jury was not applicable to the states, and [that] as such, ‘all the elements or facts which might increase the maximum punishment for a crime’ do not necessarily need to be listed in an indictment.” State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603 (quoting State v. Wallace, 351 N.C. 481, 508, 528 S.E.2d 326, 343 (2000)), cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003). As such, defendant’s assignment of error is overruled.
III.
Defendant next argues that the trial court erred by finding that the New York offense of second-degree assault was substantially similar to the North Carolina offense of assault inflicting serious injury, when some of the acts that constitute second-degree assault in New York would only amount to simple assault in North Carolina. At defendant’s resentencing hearing, the State presented the trial court [257]*257with the 1993 version of the New York statute for second-degree assault. The trial court determined that the statute had not been modified since defendant had been convicted of second-degree assault in 1990. The statute provides that a person is guilty of second-degree assault when:
1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or
2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or
3. With intent to prevent a peace officer, police officer, a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman, or an emergency medical service paramedic or emergency medical service technician, from performing a lawful duty, he causes physical injury to such peace officer, police officer, fireman, paramedic or technician; or
4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or
6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or
7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of section forty of the correction law, pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person.
[258]*258NY CLS Penal § 120.05 (1993). The trial court in the present case found that the elements of New York’s second-degree assault were substantially similar to North Carolina’s assault inflicting serious injury, which is an A1 misdemeanor under N.C. Gen. Stat. § 14-33(c) (2003), because “both statutes require serious injury.” The trial court assigned defendant one point for the attempted second-degree assault, which raised defendant’s prior record level from Level III to Level IV.
N.C. Gen. Stat. § 14-33(c) provides that “any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray,” that person “[i]nflicts serious injury upon another person or uses a deadly weaponf.]” N.C. Gen. Stat. § 14-33(c)(l) (2003). Defendant argues that the trial court erred in finding NY CLS Penal § 120.05 to be substantially similar to N.C.G.S. § 14-33(c) when “at least two of the acts” described in the New York statute do not require the causation of serious physical injury. Specifically, defendant asserts that paragraphs six and seven of NY CLS Penal § 120.05 are not analogous to any North Carolina offense, aside from simple assault under N.C. Gen. Stat. § 14-33(a) (2003), which is a Class 2 misdemeanor.
Under paragraph six of NY CLS Penal § 120.05, a defendant is guilty of second-degree assault if the defendant “causes physical injury” to a person while committing another felony or while fleeing from the commission of a felony. Because a defendant need not cause “serious injury” under this section of New York’s statute on second-degree assault, this particular act does not correspond with assault inflicting serious injury under N.C.G.S. § 14-33(c)(l). Similarly, paragraph seven of NY CLS Penal § 120.05 provides that a defendant is guilty of second-degree assault if the defendant intentionally causes “physical injury to another person” while confined at a correctional facility. Again, absent the requirement that a defendant cause “serious injury,” this section of the New York offense does not correspond with N.C.G.S. § 14-33(c).
Defendant argues, and we agree for the reasons that follow, that because neither paragraphs six nor seven of NY CLS Penal § 120.05 require “serious injury”, the offense most substantially similar to the New York offense on this record was simple assault.
N.C.G.S. § 15A-1340.14(e) provides that either the State or the defendant may prove by a preponderance of evidence whether an out-[259]*259of-state offense is substantially similar to a North Carolina offense. However, the statute does not instruct the trial, court how to determine which North Carolina offense is most substantially similar to the out-of-state offense when the out-of-state offense has elements that are similar to multiple North Carolina offenses. In light of such an ambiguity in a criminal statute, the rule of lenity requires us to interpret the statute in favor of defendant. See State v. Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 681 (1985) (“[T]he ‘rule of lenity’ forbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention.”). As such, on this record, where the prosecuting authority relied only on the statutory offenses themselves in making its substantial similarity arguments, the New York second-degree assault offense is most substantially similar to North Carolina’s offense of simple assault set forth in N.C.G.S. § 14-33(a).
The State argues that our Court addressed this very issue in State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49 (1998), which the State argues controls the present case. The defendant in Rich argued that “his conviction of ‘assault with intent to cause serious injury,’ occurring in New York, should have been classified by the trial court as a Class A1 misdemeanor rather than a Class I felony for sentencing purposes.” Id. at 117, 502 S.E.2d at 52. However, we never reached the merits of this issue because the defendant had failed to preserve the issue for appeal pursuant to N.C.R. App. P. 10. Id. Therefore, Rich provides no authority regarding defendant’s assignment of error in the present case.
Thus, we conclude that the trial court erred in finding New York’s second-degree assault to be substantially similar to North Carolina’s assault inflicting serious injury, which is a Class A1 misdemeanor, as opposed to simple assault, which is a Class 2 misdemeanor. See N.C.G.S. § 14-33(a). Under N.C. Gen. Stat. § 14-2.5 (2003), “an attempt to commit a misdemeanor or a felony is punishable under the next lower classification as the offense the offender attempted to commit.” Therefore, defendant’s prior New York conviction for attempted second-degree assault should have been treated as a Class 3 misdemeanor, which would have not had any point value for prior record purposes. See N.C. Gen. Stat. § 15A-1340.14(b)(5) (2003). Since the trial court erroneously determined that defendant’s New York conviction for attempted second-degree assault was substantially similar to the North Carolina offense of assault inflicting serious injury, defendant was improperly assigned one prior record point for this offense. [260]*260This one record point raised defendant’s prior record level from a Level III to a Level IV. As noted above, the “statutory maximum” sentence that defendant could have received was 220 to 273 months, which is the maximum presumptive range sentence for a Level III offender. See N.C. Gen. Stat. § 15A-1340.17(c) and (e) (2003). However, defendant was sentenced to the maximum sentence for a Level IV offender, and the trial court’s error was therefore prejudicial.
We observe that the following issues are not presented by this appeal: whether (1) G.S. § 15A-1340.14(e) authorizes a determination of the underlying conduct giving rise to the out-of-state conviction when making a substantial similarity conclusion; and (2) if so, the extent to which Blakely may apply. Here, the State relied only on an evaluation of the statutes in making its substantial similarity arguments before the trial court, and we limit our holding to these circumstances.
We reverse the trial court’s order and judgment sentencing defendant to 251 to 311 months imprisonment, and grant defendant a new sentencing hearing.
Affirmed in part; reversed and remanded for resentencing.
Judge HUNTER concurs.
Judge McGEE concurs in part and dissents in part.