Opinion
No. COA09-1076
Filed 4 January 2011 This case not for publication
Appeal by defendant from order entered 10 February 2009 by Judge J. Richard Parker in Pasquotank County Superior Court. Heard in the Court of Appeals 11 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
Pasquotank County No. 06 CRS 51435.
Defendant Jason Jeremiah Chappelle appeals from the sentence imposed on remand following this Court's decision in State v. Chappelle, 193 N.C. App. 313, 333, 667 S.E.2d 327, 339, appeal dismissed and disc. review denied, 362 N.C. 684, 670 S.E.2d 568 (2008). While some of defendant's arguments on appeal are foreclosed by his stipulation to the existence of his out-of-state convictions in the first sentencing proceeding, we agree with defendant that the trial court failed to make properly supported findings regarding the substantial similarity of some of those convictions to corresponding North Carolina offenses. We, therefore, remand for a second resentencing hearing.
Facts
On 28 August 2006, defendant was indicted on one count of arson of a mobile home. Following a jury trial, defendant was found guilty of first degree arson on 11 January 2007. At the sentencing hearing, Judge Thomas D. Haigwood assigned defendant 12 prior record level points based on out-of-state convictions. Judge Haigwood sentenced defendant as a prior record level IV offender to a presumptive-range term of 117 to 150 months imprisonment.
Defendant appealed from that judgment to this Court. The Court found no error with respect to the trial, but remanded for resentencing based on Judge Haigwood's failure to determine whether defendant's out-of-state convictions were substantially similar to the corresponding North Carolina offenses. Id.
The resentencing was conducted by Judge J. Richard Parker on 2 February 2009. Judge Parker found that defendant possessed 11 prior record level points: one point for a Virginia petit larceny conviction; four points for a Virginia felony possession of a firearm by a felon conviction; four points for a Virginia second degree burglary conviction; and two points for a Virginia felony larceny conviction. Based on those convictions, Judge Parker determined that defendant was a prior record level IV offender. Judge Parker then "reaffirm[ed] the judgment entered by" Judge Haigwood and imposed a sentence of 117 to 150 months imprisonment. Defendant timely appealed from that order to this court.
De Novo Hearing
Defendant first contends that the trial court, on remand, failed to properly conduct a de novo sentencing hearing. Defendant points to Judge Parker's statement that he was "reaffirm[ing]" Judge Haigwood's sentence. He also notes that Judge Parker then imposed "the exact same active punishment sentence disposition Judge Haigwood imposed" even though he could have imposed any presumptive-range minimum sentence between 94 and 117 months. Defendant argues that the language used and the sentence itself demonstrate that Judge Parker did not exercise independent discretion.
Defendant further points to the fact that (1) Judge Parker made factual errors identical to those of Judge Haigwood regarding defendant's prior convictions, (2) the record contains no evidence that Judge Parker "knew anything about the facts of the case or had any rational basis for choosing any particular minimum sentence out of the wide 23-month statutory presumptive range," and (3) the State requested at resentencing that the trial court impose the same 117-month minimum sentence as was imposed by Judge Haigwood. He argues that these circumstances also tend to show that Judge Parker did not give de novo consideration to the sentence disposition.
In support of his argument, defendant relies on State v. Abbott, 90 N.C. App. 749, 370 S.E.2d 68 (1988). In Abbott, the judge who resentenced the defendant explained at the hearing that the first judge had "`felt it necessary based upon his perception of the evidence in this case to enter the sentence that he did; and I've tried to be consistent with [the first judge] and also my individual consideration of the factors that you offered me and have, therefore, imposed the sentences I have imposed.'" Id. at 750-51, 370 S.E.2d at 69. On appeal, this Court held that the defendant's right to a de novo sentencing hearing had been violated because the court on remand, in imposing an identical sentence to that first imposed, "based its decision in part upon the trial court's perception of the evidence and judgment at the prior sentencing hearing" and "not upon its independent decision-making process." Id. at 752, 370 S.E.2d at 69-70.
In this case, the transcript of the sentencing hearing before Judge Parker shows that rather than trying to be consistent with Judge Haigwood — as was the problem in Abbott — Judge Parker conducted an independent review of the convictions being included in the prior record level. Judge Parker's reference to "reaffirm[ing]" suggests more that Judge Parker was reviewing Judge Haigwood's decision than that he was trying to conform to that decision. Judge Parker heard argument by the parties, considered the Court of Appeals' opinion, reviewed the statutes admitted into evidence, and asked questions of the parties. He then made findings of fact on each offense at issue, calculated the prior record level points, and determined that defendant was a prior record level IV. Only after reaching his own determination did Judge Parker reference Judge Haigwood's decision.
We interpret Judge Parker's remarks as simply intending to indicate that after doing an independent calculation, he reached the same conclusion as Judge Haigwood and that, therefore, Judge Haigwood had imposed an appropriate sentence. Although Judge Parker's remarks regarding Judge Haigwood's sentence were unnecessary in a de novo resentencing, they do not indicate improper deference.
Calculation of Prior Record Level
Defendant further argues that even if Judge Parker did not improperly defer to Judge Haigwood, this Court should remand for resentencing because Judge Parker erred in calculating defendant's prior record level. N.C. Gen. Stat. § 15A-1340.14(a) (2009) provides that 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." Prior convictions may be proved by
(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). "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." Id.
Generally, "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, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor." N.C. Gen. Stat. § 15A-1340.14(e). If, however, "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. Accord State v. Hinton, 196 N.C. App. 750, 755, 675 S.E.2d 672, 675 (2009) ("Where the State seeks to assign an out-of-state conviction a more serious classification than the default Class I status, it is required to prove `by the preponderance of the evidence' that the conviction at issue is `substantially similar' to a corresponding North Carolina felony." (quoting N.C. Gen. Stat. § 15A-1340.14(e))).
With respect to the 6 October 1997 Virginia petit larceny conviction, defendant first contends that the trial court erred in finding that the date of the conviction was 6 October 1997 when it should have been 4 March 1998. Defendant, however, stipulated at the first trial that he was convicted of larceny on 6 October 1997.
At the initial hearing, defendant stipulated in writing and orally to the convictions on the prior record level worksheet. That worksheet indicated that defendant was convicted of petit larceny on 6 October 1997. Although defendant argues on appeal that he hesitated in stipulating to the worksheet, a review of the transcript indicates that defendant readily agreed to stipulate to everything on the worksheet except for the second degree burglary conviction, which the State acknowledged was actually a statutory burglary conviction. After the court expressed a willingness to wait until the next day to receive copies of the statutes, defendant, after conferring with stand-by counsel, then agreed to the burglary conviction as well.
Stipulations, this Court has explained, "are judicial admissions which, unless limited as to time or application, continue in full force for the duration of the controversy." Fox v. Fox, 114 N.C. App. 125, 131, 441 S.E.2d 613, 617 (1994). Consequently, having previously stipulated to the 6 October 1997 petit larceny conviction, defendant cannot now challenge the existence of that conviction.
There does not appear to be any issue of a mistaken date. The record suggests that defendant was convicted twice of petit larceny, once in October 1997 and once in March 1998.
Even if defendant had not stipulated to this conviction in the first hearing, he did so in the second hearing. The transcript of the second sentencing hearing reveals that defense counsel said of the misdemeanor larceny offense, "I don't have any contention with respect to the felony — I mean excuse me, the misdemeanor larceny — I believe it was October." He then agreed with the judge that it is "October 6th of `97." Defense counsel also agreed that the 6 October 1997 conviction should count for one point. Defendant, therefore, stipulated to the fact that he was convicted of petit larceny on 6 October 1997.
We do not find Judge Parker's reference to this conviction as "misdemeanor larceny" rather than, as Virginia calls it, "petit larceny" to be a material error.
Defendant's stipulation cannot, however, resolve the question whether the Virginia conviction is substantially similar to North Carolina's misdemeanor larceny. Whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law to which a defendant cannot stipulate. State v. Lee, 193 N.C. App. 748, 750, 668 S.E.2d 393, 395 (2008). As a question of law, we review de novo a trial court's determination of substantial similarity. State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604 (2006).
A determination whether an out-of-state conviction is substantially similar to a North Carolina offense requires "comparison of the elements of the out-of-state offense to those of the North Carolina offense." State v. Fortney, ___ N.C. App. ___, ___, 687 S.E.2d 518, 525 (2010). N.C. Gen. Stat. § 15A-1340.14(e) does not require that the statutes' "wording precisely match, but rather that the offense be `substantially similar.'" State v. Sapp, 190 N.C. App. 698, 713, 661 S.E.2d 304, 312 (2008), appeal dismissed and disc. review denied, 363 N.C. 661, 685 S.E.2d 799 (2009). "Substantially is defined as `[e]ssentially; without material qualification[.]'" State v. Parisi, 135 N.C. App. 222, 225, 519 S.E.2d 531, 533 (1999) (quoting Black's Law Dictionary 1428 (6th ed. 1990)).
Virginia defines larceny as "the taking and carrying away of the goods and chattels of another with intent to deprive the owner of the possession thereof permanently." Lund v. Commonwealth, 217 Va. 688, 691, 232 S.E.2d 745, 748 (1977), superseded by statute on other grounds as stated in Evans v. Commonwealth, 226 Va. 292, 308 S.E.2d 126 (1983). North Carolina likewise defines larceny as "(1) the taking of the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to permanently deprive the owner of the property." State v. Barbour, 153 N.C. App. 500, 502, 570 S.E.2d 126, 127 (2002).
Va. Code Ann. § 18.2-96 (2008), the statute under which defendant was convicted, specifically provides that any person who:
1. Commits larceny from the person of another of money or other thing of value of less than $ 5, or
2. Commits simple larceny not from the person of another of goods and chattels of the value of less than $ 200, except as provided in subdivision (iii) of § 18.2-95, shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor.
At the resentencing hearing, the State alleged that Va. Code Ann. § 18.2-96 was substantially similar to N.C. Gen. Stat. § 14-72 (2009).
Subsection (a) of § 14-72 indicates that except as provided by subsections (b) and (c) of § 14-72, "larceny of property, or the receiving or possession of stolen goods knowing or having reasonable grounds to believe them to be stolen, where the value of the property or goods is not more than one thousand dollars ($1,000), is a Class 1 misdemeanor." Subsection (b)(1) of § 14-72 provides that larceny is a felony, without regard to the value of the property, if the larceny is from the person.
In arguing that the Virginia petit larceny offense is not substantially similar to North Carolina's misdemeanor larceny, defendant makes no contention that petit larceny is not at least a Class 1 misdemeanor in North Carolina. Rather, he points out a variety of ways that, depending on the circumstances, petit larceny in Virginia could be found to be substantially similar to a felony in North Carolina. We conclude that a conviction of petit larceny in Virginia is at least substantially similar to a Class 1 misdemeanor in North Carolina. Since we cannot say that a Virginia conviction of petit larceny is not at least substantially similar to misdemeanor larceny in North Carolina, we cannot say that the trial court erred its finding of substantial similarity.
Defendant next challenges the sufficiency of the evidence to establish substantial similarity between his prior federal felon in possession of a firearm conviction and the corresponding North Carolina possession of a firearm by a felon offense. At the resentencing hearing, the State submitted a copy of the judgment convicting defendant of the federal offense of being a felon in possession of a firearm. The State also presented an annotated copy of the Virginia statute regulating possession or transportation of firearms by convicted felons in Virginia. The record does not reveal that the State provided a copy of the federal statute under which defendant was convicted.
Although defendant alleges that the court erred in finding (1) that he was convicted of "felonious possession of a firearm by a felon," when the evidence showed he was convicted of the offense of "felon in possession of firearm," and (2) that defendant's firearm possession conviction occurred on 22 October 1998, when the evidence showed that the date of conviction was 1 October 1999, we do not believe that these errors are material.
We agree that the State's evidence was insufficient to provide the court with a basis for comparing the elements of the federal offense to the North Carolina offense. See State v. Morgan, 164 N.C. App. 298, 309, 595 S.E.2d 804, 812 (2004) (holding State failed to produce sufficient evidence of substantial similarity where State presented copy of 2002 New Jersey homicide statute, but defendant had been convicted under 1987 version of statute, and State presented no evidence that 2002 version was unchanged from 1987 version).
Although the State contends that defendant essentially agreed before Judge Parker that the offenses were substantially similar, this argument simply invites this Court to find that defendant stipulated to substantial similarity — an invitation that we cannot accept given binding precedent. Likewise, we cannot grant the
State's request that we review the elements of the federal offense ourselves. See State v. Cao, 175 N.C. App. 434, 442-43, 626 S.E.2d 301, 306-07 (rejecting State's argument on appeal that Texas statute classified defendant's crime as felony because "no such argument was presented to the trial court during Defendant's trial"), appeal dismissed and disc. review denied, 360 N.C. 538, 634 S.E.2d 537 (2006); State v. Ayscue, 169 N.C. App. 548, 556, 610 S.E.2d 389, 395 (2005) (rejecting State's comparison of elements of relevant New York and North Carolina statutes because "no such argument was presented to the trial court during defendant's trial"). The trial court's finding of substantial similarity is, therefore, not supported as to the federal conviction of felon in possession of a firearm.
We next consider whether Judge Parker properly determined that defendant's Virginia conviction of burglary is substantially similar to the North Carolina offense of second degree burglary.
At the hearing before Judge Parker, the State compared Va. Code Ann. § 18.2-89 (2008), a copy of which it offered into evidence, to N.C. Gen. Stat. § 14-51 (2009) (second degree burglary). The State's evidence, however, showed that defendant was not convicted under Va. Code Ann. § 18.2-89, but rather was convicted under Va. Code Ann. § 18.2-91 (2008). Although defendant offered into evidence Va. Code Ann. § 18.2-91, the State continued to argue that substantial similarity should be decided based on Va. Code Ann. § 18.2-89.
Defendant argued below that Va. Code Ann. § 18.2-91 is more substantially similar to the North Carolina offense of felony breaking and entering, a class H felony. N.C. Gen. Stat. § 14-54 (2009).
Since there is no dispute that defendant was convicted of Va. Code Ann. § 18.2-91, the issue before the trial court was whether Va. Code Ann. § 18.2-91 is substantially similar to North Carolina's offense of second degree burglary. The trial court found: "The Court further finds that the State of North Carolina has proved by a preponderance of the evidence that the offense of felonious second degree burglary committed by the Defendant in the State of Virginia with a conviction date of March 4th, 1998, is substantially similar to the offense of second degree burglary in the State of North Carolina which constitutes a Class G felony carrying four prior record points for sentencing purposes." Critically, there is no such offense as "second degree burglary" in Virginia. Va. Code Ann. § 18.2-91 characterizes the offense as "statutory burglary." We cannot, therefore, determine from the trial court's finding if the court determined, as it was required to do, whether Va. Code Ann. § 18.2-91 was substantially similar to North Carolina's second degree burglary or if it compared Va. Code Ann. § 18.2-89 to second degree burglary, as urged by the State. Thus, we must remand for the trial court to make a finding regarding the substantial similarity of a conviction under Va. Code Ann. § 18.2-91 to a North Carolina offense.
Turning to the Virginia grand larceny conviction, we note that defendant's sole challenge to Judge Parker's determination that two points should be included for that conviction is his contention that Judge Parker erred in characterizing the conviction as "felonious larceny" when Virginia classifies it as "grand larceny." Defendant does not, however, dispute that Judge Parker properly determined that the Virginia offense is substantially similar to the offense of felonious larceny in the State of North Carolina and should be included as a Class H felony carrying two prior record points. Judge Parker's failure to use the Virginia label of "grand larceny" is not, therefore, a material error.
Finally, we address the resentencing hearing to occur on remand. In the first appeal, this Court remanded for findings as to the substantial similarity of various out-of-state offenses. Because the trial court failed to make proper findings with respect to the federal felon in possession of a firearm offense and the conviction under Va. Code Ann. § 18.2-91, we are required to again remand for a substantial similarity determination as to those two offenses. Findings as to the substantial similarity of crimes that defendant was not convicted of — a State of Virginia offense of possession of a firearm by a felon and Va. Code Ann. § 18.2-89 — do not comply with this Court's mandate.
Defendant urges that, rather than giving the State a third bite at the apple, this Court should provide a special instruction regarding the prior record level to be used for resentencing. Because the errors in this case involve a question of law, defendant's citation of State v. Frazier, 80 N.C. App. 547, 548-49, 342 S.E.2d 534, 535 (1986) — which involved the sufficiency of the evidence to support a finding of fact as to the existence of an aggravating factor — is not pertinent. Thus, although we do not understand why the State, on the first remand, was arguing the substantial similarity of statutes under which defendant was not convicted, we are constrained to again remand for a second resentencing hearing.
Reversed and remanded.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).