State v. Hines

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-793
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-793 NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Wilson County No. 12 CRS 52283 TYQUAN LEE HINES

Appeal by defendant from judgment entered 23 January 2013

by Judge Milton F. Fitch, Jr. in Wilson County Superior Court.

Heard in the Court of Appeals 30 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General Kathryn H. Shields, for the State.

James W. Carter for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Defendant Tyquan Lee Hines appeals from a judgment entered

pursuant to his guilty plea to selling or delivering marijuana.

The trial court found defendant had a prior record level of VI,

based on 19 prior record points, and sentenced defendant to a

term of 20 to 24 months imprisonment. Defendant filed written

notice of appeal on 1 February 2013. -2- We first note that defendant’s notice of appeal does not

include a certificate of service and thus does not conform to

Rule 4 of our Rules of Appellate Procedure. N.C. R. App. P.

4(a)(2) (providing that written notice of appeal must be served

upon all adverse parties). Failure to comply with Rule 4

constitutes a jurisdictional default, which “precludes the

appellate court from acting in any manner other than to dismiss

the appeal.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co.,

362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). Accordingly, we

dismiss defendant’s appeal, but, in our discretion, we allow

defendant’s petition for writ of certiorari to review the merits

of his arguments.

Defendant argues the trial court erred in concluding he had

a prior record level of VI, based on 19 points, because the

worksheet used to calculate his prior record level lists one

conviction twice. We agree.

“The prior record level of a felony offender is determined

by calculating the sum of the points assigned to each of the

offender’s prior convictions . . . .” N.C. Gen. Stat. § 15A-

1340.14(a) (2013). The State bears the burden of proving a

defendant’s prior convictions by a preponderance of the evidence

and may meet its burden through: -3- (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 reliable.

N.C. Gen. Stat. § 15A-1340.14(f) (2013). Although a defendant’s

stipulation to his prior convictions will relieve the State of

its burden of proving the existence of the convictions, such a

stipulation “does not preclude our de novo appellate review of

the trial court’s calculation of defendant’s prior record

level[.]” State v. Massey, 195 N.C. App. 423, 429, 672 S.E.2d

696, 699 (2009); see also State v. Fair, 205 N.C. App. 315,

318, 695 S.E.2d 514, 516 (2010) (“[W]hether [a] defendant’s

convictions can be counted towards sentencing points for

determination of his structured sentencing level is a conclusion

of law, fully reviewable by this Court on appeal.”).

Here, at the opening of the plea proceedings, the following

exchange occurred:

[Prosecutor]: The defendant has entered a plea of guilty to selling marijuana and being record Level Six. Is that correct . . . ? -4- [Defense Counsel]: That’s correct, Judge. Is he five or six[?]

[Prosecutor]: It has a six on the record sheet, I am sorry. Let me make sure-- Yes, I did put six.

The trial court subsequently signed a prior record level

worksheet prepared by the prosecutor concluding defendant had a

prior record level of VI. The Court found defendant had 19

prior record level points derived from 8 prior Class I

convictions (16 points total), 2 prior Class 1 misdemeanors (2

points total), and 1 additional point because defendant

committed the instant offense while on probation, parole, or

post-release supervision. However, defendant’s prior record

level worksheet contains an error on its face in that one of

defendant’s prior convictions for possession of a Schedule II

controlled substance is listed twice (file number 10 CRS 50930

from Wilson County on 4 April 2011). Excluding one of the

double-counted convictions gives defendant 17 prior record level

points and a prior record level of V. N.C. Gen. Stat. § 15A-

1340.14(c) (2013).

The State contends that defense counsel’s silence after the

prosecutor’s statement that he “put six” as defendant’s prior

record level constitutes a stipulation that defendant’s prior

record level was VI. However, the prosecution’s answer to -5- counsel’s question was merely that he “put six” on the prior

record level worksheet. Given defense counsel’s uncertainty as

to whether defendant’s prior record level was V or VI, we do not

believe counsel’s subsequent silence amounted to a stipulation

that defendant’s prior record level was VI. State v. Alexander,

359 N.C. 824, 828, 616 S.E.2d 914, 917 (2005) (“While a

stipulation need not follow any particular form, its terms must

be definite and certain in order to afford a basis for judicial

decision, and it is essential that they be assented to by the

parties or those representing them.” (citations and quotation

marks omitted)). Moreover, “[t]he determination of an

offender’s prior record level is a conclusion of law that is

subject to de novo review on appeal[,]” State v. Bohler, 198

N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009), and

“[s]tipulations as to questions of law are generally held

invalid and ineffective, and not binding upon the courts, either

trial or appellate.” State v. Hanton, 175 N.C. App. 250, 253,

623 S.E.2d 600, 603 (2006) (citation and quotation marks

omitted).

Accordingly, we hold the trial court erred in sentencing

defendant as having a prior record level of VI, and remand this -6- matter for resentencing. As we are remanding for resentencing

we need not address the remaining issues briefed by defendant.

Remanded for resentencing.

Chief Judge MARTIN and Judge DILLON concur.

Report per Rule 30(e).