An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-869 NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Gaston County No. 12 CRS 57020 RALPH JUNIOR WILSON
Appeal by defendant from judgment entered 13 March 2013 by
Judge James W. Morgan in Gaston County Superior Court. Heard in
the Court of Appeals 9 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General Neal T. McHenry, for the State.
Richard J. Costanza, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Ralph Junior Wilson (“Defendant”) appeals from a judgment
and commitment sentencing him to 23–37 months imprisonment for
possession of a firearm by a felon. Defendant contends that the
trial court erred in assessing him with sentencing points for
his prior shoplifting and public disturbance convictions. In
the alternative, Defendant contends that he received ineffective
assistance of counsel during sentencing. For the following -2- reasons, we affirm the trial court’s judgment and dismiss
Defendant’s ineffective assistance of counsel claim.
I. Factual & Procedural History
On 13 March 2013, Defendant was convicted of possession of
a firearm by a felon.1 The evidence presented at Defendant’s
trial tended to show the following.
On 28 May 2012, Officer J.R. Hamrick (“Officer Hamrick”) of
the Gaston County Police Department was on a marine patrol of
Lake Wylie when he received a call from dispatch concerning an
emergency in the area. The reported emergency was near a part
of the lake known as the “hot hole.” As Officer Hamrick
approached the shoreline near the hot hole, a man began
motioning for Officer Hamrick and pointed him in the direction
of a nearby pier. When Officer Hamrick looked over in the
direction to which the man was pointing, he saw a woman who
appeared visibly upset arguing with Defendant on the shoreline.
Officer Hamrick disembarked from the police boat,
approached the couple, and stated “Stop,” “Police, don’t move.”
The woman stood still but Defendant took off running with a
Styrofoam bucket in his hand. Officer Hamrick chased Defendant
up a hill to a nearby restroom. When Officer Hamrick caught up
1 Defendant stipulated to a prior felony conviction at trial. -3- to Defendant at the restroom entrance, Defendant had dropped the
Styrofoam bucket on the ground and a .45 caliber semi-automatic
handgun was lying next to the bucket. Officer Hamrick
restrained Defendant and, after learning that Defendant was a
convicted felon, arrested Defendant for possessing the firearm.
After hearing the foregoing evidence, the jury found
Defendant guilty of possession of a firearm by a felon, a Class
G felony. See N.C. Gen. Stat. § 14-415.1(a) (2013). Thereafter,
the trial court commenced with sentencing. On the record,
defense counsel and the State stipulated to the accuracy of
Defendant’s prior record level worksheet (form AOC-CR-600).
Moreover, it was stipulated that based on Defendant’s prior
convictions listed in Section V of the worksheet, Defendant had
amassed 19 felony sentencing points and was therefore at a prior
record level of VI for felony sentencing purposes. Based on
this stipulation, the trial court concluded that Defendant had
19 prior record points and a prior record level of VI. The
trial court sentenced Defendant to a 23–37 month active
sentence, which is within the presumptive range for a Class G
felon at a record level of VI. See N.C. Gen. Stat. § 15A-1340.17
(2013). Defendant gave notice of appeal in open court. -4- II. Jurisdiction
Defendant’s appeal from the superior court’s final judgment
lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-
27(b), 15A-1444(a) (2013).
III. Analysis
Defendant’s appeal presents two questions for our review:
(1) whether the trial court erred in assessing Defendant with
felony sentencing points for his prior shoplifting and public
disturbance convictions; and (2) whether Defendant received
ineffective assistance of counsel during sentencing. We address
each in turn.
A. Defendant’s Sentencing Argument
Defendant contends that the trial court erred as a matter
of law by assigning him felony sentencing points for his
previous shoplifting and public disturbance convictions. As a
result, Defendant contends that the trial court should have set
his prior record level at V instead of VI and asks this Court to
remand for resentencing.
“The 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). “Under a de novo review, the court considers the matter -5- anew and freely substitutes its own judgment for that of the
lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363
N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and
citation omitted). Even so, an error by the trial court in
calculating a defendant’s prior record point total is harmless
if the error does not affect the determination of the
defendant’s prior record level. State v. Blount, 209 N.C. App.
340, 347, 703 S.E.2d 921, 926 (2011).
“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 that the court . . . finds to have
been proved in accordance with this section.” N.C. Gen. Stat. §
15A-1340.14(a) (2013). “The State bears the burden of proving,
by a 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.” N.C. Gen. Stat.
§ 15A-1340.14(f).
A prior conviction shall be proved by any of the following methods:
(1) Stipulation of the parties.
(2) An original copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the -6- Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
Id.
The number of prior record points for each class of felony
and misdemeanor offense is specified in N.C. Gen. Stat. § 15A-
1340.14(b). Pertinent here, the only non-traffic misdemeanor
offenses that are assigned prior record points under the statute
are Class A1 and Class 1 misdemeanors. See N.C. Gen. Stat. §
15A-1340.14(b)(5). Importantly, offenders with 18 or more prior
record points are assigned a prior record level of VI for felony
sentencing, while offenders with 14–17 points are assigned a
prior record level of V. See N.C. Gen. Stat. § 15A-1340.14(c).
Here, defense counsel and the State stipulated to the
accuracy of Defendant’s prior record level worksheet, which
indicated that Defendant had amassed 19 felony sentencing points
and was therefore at a prior record level of VI for felony
sentencing purposes. Defendant’s prior convictions for
shoplifting and public disturbance were listed on the worksheet
as follows: -7- Offenses File No. Class
. . . .
M – SHOPLIFTING 89CR3411 3
M – PUBLIC DISTURBANCE 11CR60879 1 2 . . . .
On appeal, Defendant contends that the trial court should not
have assigned points to these misdemeanor convictions because,
as a matter of law, they are not Class A1 or Class 1
misdemeanors.3
At the outset, we note that Defendant’s prior conviction
for shoplifting is listed on Defendant’s worksheet as a Class 3
misdemeanor. Moreover, our criminal shoplifting statute
specifies the crime as a Class 3 misdemeanor. N.C. Gen. Stat. §
14-72.1(e) (2013) (“For a first conviction . . . or for a
subsequent conviction for which the punishment is not specified
by this subsection, the defendant shall be guilty of a Class 3
2 The worksheet also indicated the date of each conviction and the county involved. This information has been edited out for ease of interpretation. 3 A review of the worksheet and the trial court’s judgment reveals that the trial court assigned 1 point for each of these convictions. -8- misdemeanor.”).4 Accordingly, it was error for the trial court
to assign one felony sentencing point for Defendant’s
shoplifting conviction, and the State concedes as much in its
brief before this Court. Nevertheless, the State contends that
this error is harmless because even if a point is deducted from
Defendant’s total (i.e., if Defendant’s prior record point total
drops from 19 to 18), Defendant would still be at a prior record
level of VI for felony sentencing purposes. The validity of the
State’s argument assumes that the trial court did not err in
assigning one point for Defendant’s public disturbance
conviction, a question we now consider.
Defendant contends that the trial court erred in assigning
one point for his prior public disturbance conviction because,
as a matter of law, a “public disturbance” is unambiguously a
Class 2 misdemeanor. Specifically, even though Defendant
stipulated to the accuracy of the prior record level worksheet,
which lists Defendant’s public disturbance conviction as a Class
1 misdemeanor, Defendant contends that his stipulation is not
binding and should have been corrected by the trial court. See
State v. Wingate, 213 N.C. App. 419, 420, 713 S.E. 2d 188, 189
(2011) (“Stipulations as to questions of law are generally held
4 There are no other prior shoplifting convictions listed on Defendant’s worksheet. -9- invalid and ineffective, and not binding upon the courts, either
trial or appellate.” (quotation marks and citations omitted)).
In support of his argument, Defendant directs our attention
to this Court’s decisions in Wingate and State v. Roseboro, ___
N.C. App. ___, 723 S.E.2d 583, 2012 WL 1308987 (2012)
(unpublished).5 In Wingate, the defendant stipulated that he had
been convicted of one count of “conspiracy to sell or deliver
cocaine” and two counts of “selling or delivering cocaine.”
Wingate, 213 N.C. App. at 420, 713 S.E.2d at 189. The defendant
further stipulated that these offenses were Class G felonies.
Id. On appeal, the defendant contended that
there was insufficient proof to establish whether he had previously been convicted of one count of conspiracy to sell cocaine and two counts of selling cocaine, which are Class G felonies, or whether he was convicted of one count of conspiracy to deliver and two counts of delivery of cocaine, which are Class H felonies.
Id. at 420, 713 S.E.2d at 189–90. In reviewing the trial
court’s decision, we said:
Defendant asserts that whether he was convicted of delivering cocaine or whether he was convicted of selling cocaine was a question of law, not fact, and, therefore, his stipulation to the Class G felonies was
5 Roseboro is an unpublished decision of this Court and therefore has no precedential value. Nevertheless, we consider Roseboro as persuasive authority. -10- invalid. We disagree and hold that, in this case, the class of felony for which defendant was previously convicted was a question of fact, to which defendant could stipulate, and was not a question of law requiring resolution by the trial court.
Id. at 420, 713 S.E.2d at 190. Additionally, we noted that:
[t]he prior conviction worksheet expressly sets forth the class of offense to which a defendant stipulates and defendant in this case has not cited to any authority, nor have we found any, that requires the trial court to ascertain, as a matter of law, the class of each offense listed.
Defendant in the case at bar stipulated that the three convictions at issue were Class G felonies. The trial court could, therefore, rely on this factual stipulation in making its calculations and the State’s burden of proof was met.
Id. at 421, 713 S.E.2d at 190.
In Roseboro, the defendant stipulated that he had
previously been convicted of “conspiracy to commit common law
robbery” and that this conviction was a Class G felony.
Roseboro, 2012 WL 1308987, at *1. On appeal, the defendant
contended that “the trial court erred in relying on this
stipulation because as a matter of law, conspiracy to commit
felony common law robbery is a Class H felony.” Id.
Distinguishing Wingate, we said:
In Wingate the question before the Court was whether defendant’s stipulation to the class -11- of an ambiguously titled felony was sufficient to establish that his conviction was for the Class G felony of sale of cocaine, rather than the Class H felony of delivery of cocaine. Here, there is no ambiguity in the prior felony to which Defendant stipulated. Defendant stipulated that he was previously convicted of conspiracy to commit felony common law robbery. As a matter of law, this conviction is a Class H felony. It was error to list the conviction as a Class G felony on the prior record level worksheet, and it was error for the trial court to rely on that stipulation to calculate Defendant’s prior record level. Properly counting Defendant’s prior conviction for conspiracy to commit felony common law robbery as a Class H felony, Defendant would have a prior record level of IV. Accordingly, we remand for resentencing.
Id. at *2.
Consistent with Roseboro, Defendant contends that a “public
disturbance” unambiguously refers to the conduct prohibited by
N.C. Gen. Stat. § 14-288.4(a), which, as a matter of law, is a
Class 2 Misdemeanor. See N.C. Gen. Stat. § 14-288.4(b) (2011).6
6 Offenders under this version of the statute, which was in effect when Defendant committed the offense for which he is currently being sentenced, were guilty of a Class 2 misdemeanor for a first offense irrespective of the particular subsection implicated under N.C. Gen. Stat. § 14-288.4(a). Under the current statute, offenders of N.C. Gen. Stat. § 14-288.4(a)(8) are guilty of a Class 1 misdemeanor for the first offense. See N.C. Gen. Stat. § 14-288.4(c) (2013). The older version of the statute is cited here because “[i]n determining the prior record level, the classification of a prior offense is the classification assigned to that offense at the time the offense -12- We disagree.
N.C. Gen. Stat. § 14-288.1(8) (2013) defines a “public
disturbance” as
[a]ny annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question which occurs in a public place or which occurs in, affects persons in, or is likely to affect persons in a place to which the public or a substantial group has access.
As defined, the term is subsequently used to describe a riot in
N.C. Gen. Stat. § 14-288.2 (2013) and to describe various types
of disorderly conduct in N.C. Gen. Stat. § 14-288.4.7 Thus,
unlike conspiracy to commit common law robbery, a “public
disturbance” is an ambiguous label that could refer to multiple
types of criminal activity. Furthermore, while a person is
guilty of a Class 2 misdemeanor for disorderly conduct under
N.C. Gen. Stat. § 14-288.4, N.C. Gen. Stat. § 14-288.2(c) states
that “any person who willfully engages in a riot is guilty of a
Class 1 misdemeanor.”
Accordingly, Defendant’s stipulation in the present case is
more akin to the stipulation in Wingate than the stipulation in
for which the offender is being sentenced is committed.” N.C. Gen. Stat. § 15A-1340.14(c). 7 Notably, N.C. Gen. Stat. § 14-288.4 is titled “Disorderly conduct,” not “public disturbance.” -13- Roseboro. Defendant has stipulated to an ambiguously labeled
crime and its punishment classification. Thus, consistent with
our decision in Wingate, “the class of [misdemeanor] for which
[D]efendant was previously convicted was a question of fact, to
which [D]efendant could stipulate, and was not a question of law
requiring resolution by the trial court.” Wingate, 213 N.C.
App. at 420, 713 S.E.2d at 190.
Finally, we note that on 19 September 2013, Defendant filed
a motion with this Court asking us to take judicial notice of a
certified copy of the judgment entered for his previous “public
disturbance” conviction in order to establish that the
conviction was for a violation of N.C. Gen. Stat. § 14-
288.4(a)(2).8 “[I]f requested by a party and supplied with the
necessary information,” this Court is required to take judicial
notice of an adjudicative fact that is “capable of accurate and
ready determination by resort to sources whose accuracy cannot
be reasonably questioned.” N.C. R. Evid. 201. A certified copy
of a court record is a source whose accuracy cannot be
reasonably questioned. Thus, we must take judicial notice of
8 Defendant has also requested that we take judicial notice of an uncertified computer printout allegedly showing the record of his previous shoplifting conviction as maintained by the Administrative Office of the Courts. -14- the information contained in Defendant’s judgment.9 See State v.
Thompson, 349 N.C. 483, 497, 508 S.E.2d 277, 286 (1998) (“This
Court may take judicial notice of the public records of other
courts within the state judicial system.”); State v. King, ___
N.C. App. ___, ___, 721 S.E.2d 327, 330 (2012) (taking judicial
notice of a certified public record signed by an assistant
clerk). The judgment, which matches the file number listed
beside “public disturbance” on the prior record level worksheet,
cites to N.C. Gen. Stat. § 14-288.4(a)(2) to describe
Defendant’s criminal conduct.
However, because this document was not presented to the
trial court, it cannot affect our review of the trial court’s
sentencing decision. In a similar context, we have stated that
[t]he Court of Appeals is not the proper place for the introduction of evidence. This Court is not a fact-finding court, and will not consider evidence, documentary or otherwise, that was not before the trial court. To allow such evidence would lead to interminable appeals and defeat the fundamental roles of our trial and appellate courts.
State v. Massey, 195 N.C. App. 423, 429, 672 S.E.2d 696, 699–700
(2009) (declining to consider a certified copy of the
9 We decline to judicially notice the computer printout detailing Defendant’s shoplifting conviction. As an uncertified document, its accuracy can be reasonably questioned. -15- defendant’s criminal record in reviewing the trial court’s
sentencing decision). Accordingly, we find no reversible error
in the trial court’s sentencing decision. Although the trial
court mistakenly added a point for Defendant’s shoplifting
conviction, this error was harmless. Defendant stipulated that
the ambiguously labeled “public disturbance” conviction was a
Class 1 misdemeanor. Considering Defendant’s stipulation to
this question of fact, which was the only evidence before the
trial court, we hold that the trial court did not err in
assigning a felony sentencing point for Defendant’s “public
disturbance” conviction nor in setting Defendant’s prior record
level at VI.
B. Defendant’s Ineffective Assistance of Counsel Argument
Defendant contends that if the trial court did not err in
its sentencing decision, we should find on direct review that he
received ineffective assistance of counsel during the sentencing
phase of his trial. Specifically, Defendant contends that his
trial counsel stipulated to inaccurate information and, but for
the error, Defendant would have received a shorter sentence.
To prevail on an ineffective assistance of counsel claim,
a defendant must first show that his counsel’s performance was deficient and then that counsel’s deficient performance prejudiced his defense. Deficient -16- performance may be established by showing that counsel’s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286
(citations and quotation marks omitted), cert. denied, 549 U.S.
867 (2006). However,
[i]t is well established that ineffective assistance of counsel claims “brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” Thus, when this Court reviews ineffective assistance of counsel claims on direct appeal and determines that they have been brought prematurely, we dismiss those claims without prejudice, allowing defendant to bring them pursuant to a subsequent motion for appropriate relief in the trial court.
State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881
(2004) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d
500, 524 (2001)), cert. denied, 546 U.S. 830 (2005).
Here, the cold record reveals that further information is
required to review Defendant’s ineffective assistance of counsel -17- claim. It is clear that an error was made with respect to
Defendant’s shoplifting conviction. This conviction is listed
on the prior record level worksheet as a Class 3 misdemeanor,
yet, defense counsel stipulated to a point total that included
one point for this conviction. Even so, further factual
development is needed concerning Defendant’s “public
disturbance” conviction. This conviction is listed as a Class 1
misdemeanor on the prior record level worksheet. The certified
judgment that we have judicially noticed also identifies this
conviction as a Class 1 misdemeanor. However, as previously
noted, the judgment also cites to N.C. Gen. Stat. § 14-
288.4(a)(2) to describe Defendant’s criminal conduct, which, as
a matter of law, is a Class 2 misdemeanor.10 See N.C. Gen. Stat.
§ 14-288.4(b). It is unclear on the current record whether
defense counsel looked at Defendant’s previous judgment, looked
up the statutory reference cited therein, or caught the
discrepancy. We believe that defense counsel should be given
the opportunity to explain why the stipulation was made and what
information was considered beforehand. Accordingly, we dismiss
10 The discrepancy in the judgment between the cited criminal conduct and the misdemeanor class level that was marked appears to be a clerical error. -18- IV. Conclusion
For the foregoing reasons, we find no error with the trial
court’s judgment and dismiss Defendant’s ineffective assistance
of counsel claim.
No error in part; dismissed in part.
Judges STROUD and DILLON concur.
Report per rule 30(e).