Opinion
No. COA10-157
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgment entered 8 June 2009 by Judge William Z. Wood, Jr. in Moore County Superior Court. Heard in the Court of Appeals 29 September 2010.
Attorney General Roy Cooper, by Assistant Attorney General Phillip Reynolds, for the State. Bryan Gates for defendant-appellant.
Moore County No. 06 CRS 5752.
Defendant Rodney Daniel McLeod appeals from the judgment entered based on his plea of guilty to the charge of voluntary manslaughter. Defendant contends that the State failed to meet its burden of proving, for purposes of defendant's prior record level, that the federal crime of possession of a firearm by a felon is substantially similar to a North Carolina Class G felony. We agree and remand for a new sentencing hearing.
Facts
On 8 June 2009, defendant agreed to plead guilty to voluntary manslaughter in exchange for the State's dismissal of charges of first degree murder, possession of a firearm by a felon, possession of cocaine, misrepresentation to obtain unemployment benefits, communicating threats, two counts of maintaining a dwelling for controlled substances, and three counts of having attained habitual felon status. The plea agreement provided that defendant would receive a sentence of 117 to 150 months imprisonment that would run concurrent with a federal sentence defendant was serving.
The State's prior record level worksheet listed defendant's prior record level as V based on 15 alleged prior record level points. That calculation included a federal offense labeled "felon in possession of a firearm" that the worksheet classified as a Class G felony.
At the sentencing hearing, defendant orally agreed that he was a prior record level V for felony sentencing purposes and stated that he had reviewed the worksheet with his attorney and that it was accurate. Defendant's trial counsel also signed the stipulation on the worksheet agreeing with the prior record level set out on the worksheet. At the hearing, the trial court did not specifically address whether the federal crime of possession of a firearm by a convicted felon is substantially similar to a Class G felony in North Carolina.
In accordance with defendant's plea arrangement, the trial court sentenced defendant to a presumptive-range term of 117 to 150 months imprisonment to be served concurrently with any other active sentence defendant was serving, including defendant's current federal sentence. Defendant timely appealed to this Court.
Discussion
Defendant's sole argument on appeal is that the State failed to meet its burden of showing substantial similarity between the federal offense of felon in possession of a firearm and a Class G felony in North Carolina. The legislature has established the following method for classifying felonies from other jurisdictions when calculating a defendant's prior record level:
Except 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. . . . 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.
N.C. Gen. Stat. § 15A-1340.14(e) (2009). Defendant contends that because the State failed to make the necessary showing, his federal conviction should have been classified as a Class I felony.
The State argues, as an initial matter, that "[d]efendant's stipulation [to his prior record level] mooted the sole issue [defendant] presents on appeal." Prior panels of this Court have, however, held repeatedly that a stipulation regarding out-of-state convictions is insufficient, absent a determination of substantial similarity by the trial court, to support the trial court's prior record determination. See, e.g., State v. Lee, 193 N.C. App. 748, 751, 668 S.E.2d 393, 395 (2008) (holding that defendant's stipulation to worksheet's prior record level "did not satisfy the State's burden of proof to show substantial similarity of the out-of-state offense to the corresponding North Carolina offense pursuant to N.C. Gen. Stat. § 15A-1340.14(e)"); State v. Moore, 188 N.C. App. 416, 425, 656 S.E.2d 287, 293 (2008) (holding that defendant's stipulation to prior record level worksheet submitted by State was ineffective with respect to prior out-of-state convictions); State v. Palmateer, 179 N.C. App. 579, 581-82, 634 S.E.2d 592, 593-94 (2006) (concluding that, when defendant's counsel signed prior record level stipulation without showing of substantial similarity for several out-of-state convictions, "the stipulation in the worksheet regarding Defendant's out-of-state convictions was ineffective"). This Court is bound by our prior holdings on this issue. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Here, defendant's stipulation as to his prior record level was binding as to the existence of defendant's prior conviction of the federal crime of possession of a firearm by a felon, but it was not binding as to the substantial similarity of the federal offense to a North Carolina felony. See State v. Chappelle, 193 N.C. App. 313, 333, 667 S.E.2d 327, 339 ("While the stipulation by defendant is binding as to the existence of the prior convictions (including the out-of-state convictions), it is not binding as to the substantial similarity of the out-of-state offenses under N.C. Gen. Stat. § 15A-1340.14(e)."), appeal dismissed and disc. review denied, 362 N.C. 684, 670 S.E.2d 568 (2008). The trial court, therefore, erred in not addressing the issue of substantial similarity.
This error is not harmless. The trial court's prior record level calculation relied upon the State's classification of the federal conviction as a Class G felony, which carries four prior record level points. If that conviction had been classified as a Class I felony, as it must be in the absence of a finding of substantial similarity, defendant would have been assigned only two prior record level points for that conviction, resulting in a prior record level IV rather than V. See N.C. Gen. Stat.§ 15A-1340.14(b)-(c). We, therefore, must remand for resentencing in accordance with Moore, Lee, and Palmateer.
Affirmed in part; reversed and remanded in part.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).