Opinion
No. COA03-271
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgments entered 22 July 2002 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 17 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General J. Philip Allen, for the State. Anne Bleyman for defendant-appellant.
Wake County Nos. 99 CRS 27102-04.
On 14 December 1999, defendant Carl Hill Hendrix was indicted on three counts of obtaining property by false pretenses. On 22 July 2002, defendant agreed to plead guilty to all three counts. There was no agreement as to the sentence that defendant would receive. At the plea hearing, the trial court found that defendant had 19 prior record level points. The trial court consolidated two of the counts and sentenced defendant as a Class H, Level VI felon to two consecutive terms of twenty to twenty-four months imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred in sentencing him as a prior record level VI felon. Defendant contends that the State failed to prove the existence of the convictions listed in his prior record level worksheet and that he did not stipulate to any prior record level.
After careful review of the record, briefs and contentions of the parties, we find no error. N.C. Gen. Stat. § 15A-1340.14 provides that the State bears the burden of proving by the 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) (2001). A defendant's prior convictions may be proven by any of the following methods:
(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.
Id. See also State v. Riley, ___ N.C. App. ___, ___, 583 S.E.2d 379, 386 (2003).
In the instant case, the following colloquy occurred:
THE COURT: . . . The worksheet says prior record level of six with 19 points; is that correct?
[DEFENDANT'S COUNSEL]: That's correct, Your Honor.
The issue here is whether the comments by defendant's attorney constitute a "stipulation" to the prior convictions listed on the worksheet submitted by the State. We find State v. Eubanks, 151 N.C. App. 499, 565 S.E.2d 738 (2002), persuasive. In Eubanks, the trial court asked counsel if he had seen the prior record level worksheet and if he had any objections to it. Id. at 505, 565 S.E.2d at 742. Counsel stated that he had no objection. Id. The Court noted that "[t]here is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions." Id. (citing State v. Hanton, 140 N.C. App. 679, 689, 540 S.E.2d 376, 382 (2000)). However, this Court concluded that "the statements made by the attorney representing defendant . . . may reasonably be construed as a stipulation by defendant that he had been convicted of the charges listed on the worksheet." Id. at 506, 565 S.E.2d at 743; see also Hanton, 140 N.C. App. at 690, 540 S.E.2d at 383 (holding that defense counsel's statement that he did not disagree with the worksheet constituted an admission by defendant that he had been convicted of the other charges appearing on the worksheet).
Similarly, we find that counsel's statement to the court that the worksheet was "correct" constituted an admission that defendant had been convicted of the charges listed on his prior record level worksheet. We can discern no meaningful difference between counsel's response here that the worksheet was correct and counsel's statement in Eubanks that he had no objection to the worksheet. Furthermore, we note that here, as in Eubanks, defendant does not dispute the existence of any of the prior convictions listed on the worksheet. Eubanks at 506, 565 S.E.2d at 743. Accordingly, we find no error.
No error.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).