State v. Sandefur

• Court: Court of Appeals of North Carolina
• Decided: October 15, 2024
• Docket: 23-1012
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1012

Filed 15 October 2024

Cleveland County, Nos. 22 CRS 51269, 22 CRS 51271, 22 CRS 538

STATE OF NORTH CAROLINA

v.

WILLIAM SHAWN SANDEFUR, Defendant.

Appeal by defendant from judgments entered 6 March 2023 by Judge Hugh B.

Lewis in Superior Court, Cleveland County. Heard in the Court of Appeals 24

September 2024.

Attorney General Joshua H. Stein, by Assistant Attorney General Tanisha D. Folks, for the State.

Sandra Payne Hagood for defendant-appellant.

STROUD, Judge.

Defendant William Shawn Sandefur appeals from judgments entered following

a jury trial finding him guilty of (1) possession of firearm by felon, (2) possession of

methamphetamine, (3) possession of drug paraphernalia, (4) misdemeanor carrying

a concealed gun, and (5) possession of burglary tools. Defendant argues the trial court

erred in sentencing him at prior record level V based upon its erroneous classification

of two prior convictions from Kentucky. Because the State failed to present sufficient

evidence to support the trial court’s classification of the two Kentucky felonies for

purposes of determining Defendant’s prior record level, we must remand for STATE V. SANDEFUR

Opinion of the Court

resentencing.

I. Background

The State’s evidence tended to show that on 14 April 2022 the Cleveland

County Sheriff’s Office received a call reporting suspicious activity and a potential

breaking and entering in progress at a house on Mooresboro Road. The caller,

Tamara McCurry, indicated a man, carrying bolt cutters, was at the house and was

driving a white Kia Soul with a yellow bumper sticker. The house was owned by Ms.

McCurry’s uncle, but Ms. McCurry had power of attorney to oversee the property

since her uncle’s transition into a nursing home in 2021.

Patrol Deputy Elijah Spurling was dispatched to the address. Before Deputy

Spurling could arrive on scene, however, Ms. McCurry called again to inform law

enforcement that the suspect had left the home and was traveling towards Ellenboro

Road. After redirecting and traveling in that direction, Deputy Spurling noticed a

vehicle matching the description parked outside of a convenience store, Deb’s Mini

Mart, on Ellenboro Road.

Deputy Spurling pulled into the convenience store parking lot at 7:56 p.m. and

parked his vehicle without initiating his blue lights. Deputy Spurling approached

the vehicle and started a conversation with Defendant. Deputy Spurling began

questioning Defendant as to what he was doing at the Mooresboro Road home.

Defendant admitted to being at the home, exited his vehicle, and proceeded to show

Deputy Spurling the contents of the vehicle’s trunk, which included bolt cutters.

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When asked what he was doing at the home with the bolt cutters, Defendant stated

he was obtaining some items from the home that belonged to him. Specifically,

Defendant indicated to Deputy Spurling he was going to see a friend, Rocky Sloan,

who was allegedly living at the home and had some tire rims and soundbars belonging

to Defendant.

After obtaining Defendant’s identification, Deputy Spurling returned to his

vehicle to begin running routine checks. Deputy Lesmeister, who was also on scene,

remained outside talking with Defendant while Deputy Spurling was conducting his

investigation. At some point, Deputy Spurling called for a K-9 unit, Deputy Bonino,

who arrived on scene at 9:00 p.m. Deputy Spurling asked for Deputy Bonino to

perform a K-9 sniff around Defendant’s vehicle. In performing the drug sniff, Deputy

Bonino’s K-9 alerted to the potential presence of narcotics within Defendant’s vehicle.

Based upon the K-9’s positive narcotics alert, Deputy Spurling returned to

Defendant’s vehicle to perform a search. This search revealed a Smith & Wesson 9-

millimeter handgun concealed within the vehicle’s center console, ammunition, and

a lockbox located in the rear of the vehicle. Inside the lockbox was about a gram of a

clear, crystal substance, and three glass pipes commonly used for smoking narcotics.

On 16 May 2022, a Cleveland County grand jury indicted Defendant for

possession of firearm by felon, possession of methamphetamine, possession of drug

paraphernalia, possession of burglary tools, misdemeanor carrying a concealed gun,

and misdemeanor driving while license revoked. The case came on for trial at the 1

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March 2023 session of the Superior Court, Cleveland County. At the close of the

State’s case, the State dismissed the driving while license revoked charge. On 6

March 2023, a jury found Defendant guilty of all remaining charges.

During sentencing, the trial court allotted Defendant 16 prior record level

felony points, placing him at prior record Level V for sentencing purposes. In

concluding this prior record level, the trial court relied on a prior record level

worksheet submitted by the State, identifying several out-of-state convictions

obtained by Defendant in Kentucky. Defendant appeals.

II. Analysis

On appeal, Defendant argues the trial court erred in calculating his prior

record level for sentencing purposes. Specifically, Defendant contends the trial court

improperly classified two prior, out-of-state convictions as G and F level felonies when

the State failed to meet its burden in establishing these convictions were

substantially similar to North Carolina offenses. Due to this alleged

misclassification, Defendant argues the trial court improperly sentenced him under

a prior record level V when he should have been sentenced under a prior record level

IV. We agree with Defendant and conclude the State failed to meet its burden in

establishing substantial similarity.

The determination of an offender’s prior record level is a conclusion of law that is subject to de novo review on appeal. It is not necessary that an objection be lodged at the sentencing hearing in order for a claim that the record evidence does not support the trial court’s determination of

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a defendant’s prior record level to be preserved for appellate review.

State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009) (citations omitted).

Under North Carolina General Statute Section 15A-1340.14, “[t]he prior record

level of a felony offender is determined by calculating the sum of points assigned to

each of the offender’s prior convictions that the court . . . finds to have been proved in

accordance with this section.” N.C. Gen. Stat. § 15A-1340.14(a) (2023). For the

classification of prior convictions occurring outside of North Carolina, “[e]xcept 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[.]” N.C. Gen. Stat. § 15A-1340.14(e)

(2023). If the State wishes to classify a prior out-of-state conviction as higher than

the baseline Class I, it must meet its burden of showing substantial similarity

between the out-of-state conviction and a North Carolina offense:

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 felony or higher, the conviction is treated as that class of felony for assigning prior record level points.

Id. Thus, to calculate prior record level, the baseline classification for out-of-state

felonies is Class I, unless the State can prove substantial similarity between the out-

of-state conviction(s) and their respective North Carolina offense classification(s).

See id.

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The main issue we are presented with is whether the State met its burden in

showing substantial similarity between Defendant’s past Kentucky convictions and

their respective North Carolina offenses for the purpose of determining his prior

record level. Defendant argues, and we agree, the State did not present sufficient

evidence to show the out-of-state convictions were substantially similar to North

Carolina offenses.

To show substantial similarity, the State must submit to the trial court a copy

of the applicable out-of-state statute it claims to be substantially similar to a North

Carolina offense. See State v. Sanders, 367 N.C. 716, 718, 766 S.E.2d 331, 332 (2014)

(“[T]he Court of Appeals has consistently held that when evidence of the applicable

law is not presented to the trial court, the party seeking a determination of

substantial similarity has failed to meet its burden of establishing substantial

similarity by a preponderance of the evidence.” (citations omitted)). After the State

has identified the applicable out-of-state statute, the “[d]etermination of whether the

out-of-state conviction is substantially similar to a North Carolina offense is a

question of law involving comparison of the elements of the out-of-state offense to

those of the North Carolina Offense.” State v. Fortney, 201 N.C. App. 662, 671, 687

S.E.2d 518, 525 (2010) (citation omitted).

During sentencing, the State submitted to the trial court Defendant’s prior

record level worksheet, which shows Defendant had several prior convictions in

Kentucky. Although this worksheet lists Defendant’s prior convictions obtained in

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states other than North Carolina, there is no reference to the applicable statutes

defining those offenses within their respective jurisdictions. Defendant argues on

appeal, and the State concedes, this worksheet was the only evidence submitted for

the purpose of identifying Defendant’s prior convictions.

The State also further concedes neither the State nor the trial court conducted

any comparative analysis of the elements of Defendant’s prior convictions. In

submitting the prior record level worksheet, the State stated “[a]s for sentencing,

Your Honor, I believe the record – the record speaks for itself and the prior convictions

speak for themselves and we just leave – obviously leave it in your discretion, but we

don’t have a position one way or another.” Neither the State nor the trial court

engaged in any further discussion of alleged similarity between the out-of-state

convictions and North Carolina offenses.

Because the State failed to identify the applicable statutes, and no comparison

of the elements took place at the trial court during sentencing, the State did not meet

its burden to establish substantial similarity for purposes of determining Defendant’s

prior record level. See State v. Wright, 210 N.C. App. 52, 71-72, 708 S.E.2d 112, 126

(2011) (concluding substantial similarity had not been established when the State

failed to provide sufficient evidence of the applicable out-of-state statutes under

which the defendant was previously convicted, and where the trial court failed to

conduct any form of analysis of the elements between the out-of-state convictions and

North Carolina offenses).

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Although the State concedes its failure to adequately identify the applicable

Kentucky statutes and to address the comparison of the elements, the State still

contends it should prevail on appeal. Specifically, the State argues these

shortcomings are harmless error and that under de novo review, this Court can

properly determine whether the Kentucky offenses are substantially similar to a

North Carolina offense. In making this argument, the State presents, for the first

time within its brief, the allegedly applicable Kentucky statutes “obvious[ly]”

referenced by Defendant’s prior record level worksheet. The State contends there are

no other potential crimes defined within Kentucky’s criminal code that could apply to

the alleged offenses.

But this Court has previously rejected this argument. In State v. Henderson,

the State failed to demonstrate substantial similarity before the trial court and on

appeal this Court noted:

[T]he State identifies in its brief the statutes under which it contends that defendant was convicted in South Carolina and Pennsylvania and argues that these statutes establish the necessary substantial similarity. The State did not identify these South Carolina and Pennsylvania statutes during sentencing before the trial court or in the record on appeal.

State v. Henderson, 201 N.C. App. 381, 388, 689 S.E.2d 462, 467 (2009). We

recognized “it may be possible for a record [on appeal] to contain sufficient

information regarding an out-of-state conviction for this Court to determine if it is

substantially similar to a North Carolina offense,” but that record did not contain

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sufficient evidence of the applicable out-of-state statutes and this Court “will not

speculate as to whether the State has for the first time, in its brief on appeal, properly

identified the out-of-state statutes for comparison.” Id. Here, as in Henderson, the

record before us does not contain sufficient evidence to identify the applicable

Kentucky statutes to conduct a substantial similarity analysis of our own.

Because the State failed to meet its burden to establish substantial similarity

of Defendant’s Kentucky offenses to North Carolina crimes which would carry the

sentencing points as assigned by the trial court and because we lack the information

necessary to conduct our own substantial similarity analysis for harmless error

purposes, we must remand for resentencing. At the resentencing hearing, the trial

court may consider additional information presented by the State or by Defendant

regarding Defendant’s prior offenses. See id.

III. Conclusion

We conclude the trial court erred in assigning Defendant 16 prior record level

points based on his out-of-state convictions where the State failed to meet its burden

to establish substantial similarity between the out-of-state convictions and North

Carolina offenses. Accordingly, we remand for resentencing.

REMANDED FOR RESENTENCING.

Judges ZACHARY and HAMPSON concur.

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