Opinion
No. COA03-239
Filed 2 December 2003 This case not for publication
Appeal by defendant from judgment dated 14 November 2002 by Judge A. Moses Massey in Stokes County Superior Court. Heard in the Court of Appeals 19 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State. Hall Hall Attorneys at Law, P.C., by Douglas L. Hall, for defendant-appellant.
Stokes County Nos. 01 CRS 051204-05, 02 CRS 051212.
William David Case (defendant) appeals from a judgment dated 14 November 2002 entered pursuant to a guilty plea to robbery with a dangerous weapon, possession of marijuana with intent to sell or deliver, and maintaining a dwelling for the keeping and using of controlled substances.
Following defendant's guilty plea, the trial court consolidated the convictions and sentenced defendant as a prior record level IV offender to 108-139 months imprisonment.
The issues on appeal are whether: (I) the trial court committed plain error by varying from the terms of the plea agreement in sentencing defendant as a Level IV offender instead of a Level II; and (II) the proof of defendant's prior criminal record was insufficient.
I
Defendant first argues that the trial court committed plain error by varying from the terms of the plea agreement in sentencing him as a Level IV offender instead of a Level II. Specifically, defendant bases this argument on the prior record level worksheet, which shows "IV" next to a scratched-out "II" in the prior felony level box and the handwritten addition of five convictions to the prior convictions list.
N.C. Gen. Stat. § 15A-1024 provides: "If at the time of sentencing, the judge for any reason determines to impose a sentence other than provided for in a plea arrangement between the parties, the judge must inform the defendant of that fact and inform the defendant that he may withdraw his plea." N.C.G.S. § 15A-1024 (2001).
In the instant case, the trial court did not vary from the terms of the plea agreement in sentencing defendant. As reflected on the plea agreement, "all the terms and conditions of [the] plea" were that the parties agreed to "consolidate the 2 drug charges into armed robbery and sentence [within] the presumptive range" and that "[n]o other charges will arise from this incident." The trial court complied with the foregoing terms of the plea agreement by consolidating the offenses and sentencing defendant within the presumptive range. The plea agreement does not indicate defendant was to be sentenced as a prior record Level II offender. Accordingly, this assignment of error is overruled.
II
Defendant next contends the proof of defendant's prior criminal record offered at the sentencing hearing was insufficient. Specifically, defendant notes the additional, handwritten convictions in the prior record level worksheet do not contain file or case numbers, and except for one case, do not contain concise dates of conviction.
In establishing a defendant's prior record level, prior convictions may be proved by stipulation. N.C.G.S. § 15A-1340.14(f) (2001). Even if uncontested, an unverified prior record level worksheet alone is not sufficiently reliable proof of prior convictions. State v. Bartley, 156 N.C. App. 490, 502, 577 S.E.2d 319, 326 (2003); State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196, 205 (2002), rev'd on other grounds, 357 N.C. 43, 577 S.E.2d 619 (2003). However, convictions listed on a worksheet may be considered as properly proved to the extent the defendant states he has no objection to the listed convictions or otherwise admits that the convictions are correctly stated. See State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002) (holding the defense counsel's representation to the trial court that he had seen the record level worksheet and did not have any objection to it "may reasonably be construed as a stipulation by [the] defendant that he had been convicted of the charges listed on the worksheet"); State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000) (stating that the defense counsel's negative reply to the trial court's question as to whether the defendant had any objection to all but of one the convictions listed on the record level worksheet "might reasonably be construed as an admission by [the] defendant" that he had been convicted of the charges appearing on the prosecutor's worksheet).
In the present case, defendant did not object to the listed convictions on the record level worksheet. Moreover, defense counsel made the following statement at sentencing: "Mr. Case, as you're going to find out momentarily, Judge, before you sentence him, has somewhat of an extensive criminal record. And to be honest with you, I think the State has been very generous in the record level four. . . . He's been in prison for a long period of his life, adult life." This statement may reasonably be construed as an admission to the prior convictions listed on the record level worksheet. Therefore, defendant's prior convictions were sufficiently proved.
No error.
Chief Judge EAGLES and Judge LEVINSON concur.