Opinion
No. COA10-1601
Filed 5 July 2011 This case not for publication
Appeal by defendant from judgment entered 9 August 2010 by Judge F. Lane Williamson in Cleveland County Superior Court. Heard in the Court of Appeals 24 May 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State. Guy J. Loranger for defendant appellant.
Cleveland County Nos. 10 CRS 968, 10 CRS 27.
On 9 August 2010, Michael Dean Murray ("defendant") pled guilty to one count of felony larceny and admitted to attaining habitual felon status. On appeal, defendant contends the trial court erred in (1) sentencing defendant at a prior record level IV and (2) ordering defendant to pay $5,000 in restitution. We affirm the trial court's sentencing defendant at prior record level IV, but we vacate the trial court's award of restitution and remand for rehearing on that issue.
I. Background
On 18 May 2010, a grand jury indicted defendant for one count of felony larceny of personal property and with attaining habitual felon status. At a sentencing hearing before the trial court on 9 August 2010, pursuant to a plea arrangement, defendant pled guilty to the felony larceny charge and admitted attaining habitual felon status. During the sentencing hearing, the trial court recited the terms and conditions of the plea arrangement to defendant. The plea arrangement provided that defendant would be sentenced in the mitigated range to 80-105 months' imprisonment. Defendant acknowledged that those terms were correct and consented to a recitation of the facts by the prosecutor.
The prosecutor's presentation of the facts tended to show the following: In August 2009, Jack Barrett ("Barrett") discovered a trail leading through the woods behind his property to an adjacent residence. At the adjacent residence, Barrett discovered a large quantity of metal pieces, including panels and joists belonging to a metal building previously purchased by Barrett. Barrett then called the police to report the theft of his metal building pieces. When the police arrived at the adjacent residence, they spoke to Angela Murray, who identified defendant as the person responsible for the metal pieces. At that time, defendant was in prison on unrelated charges. Police officers went to speak with defendant at the prison, and during the interview, defendant admitted to the officers that he had taken the metal from Barrett's property over to his property. Defendant also admitted to the officers that he had sold a portion of the metal pieces as scrap.
After reciting the factual basis for the felony larceny charge at the sentencing hearing, the prosecutor then provided the factual basis for defendant's attaining habitual felon status, reciting three prior felony convictions of defendant. The prosecutor then announced the State's position that with those three prior felony convictions removed, defendant should be sentenced at a prior record level of IV, having 13 points. The prosecutor then asked the trial court to award restitution in the amount of $24,645 — the purchase price for the metal building reflected on Barrett's sales receipt — since defendant had taken a good portion of the metal pieces thereby requiring Barrett to replace the entire building. The prosecutor asked the trial court to order such restitution as a condition of defendant's work release and submitted both a prior record level worksheet and a restitution worksheet.
Defense counsel responded by contesting the amount of requested restitution based on the sales receipt, stating that Barrett had purchased the metal building many years ago and had left the metal pieces sitting out in the elements all those years. Defense counsel then acknowledged that "[defendant] does have a record" and that "with the habitual status [defendant] . . . is looking at a pretty stiff sentence in this case." Defense counsel recited mitigating factors to the trial court and asked that the trial court recommend work release for defendant.
The trial court entered judgment on defendant's plea, and in accordance with the terms of the plea arrangement, sentenced defendant in the mitigated range to 80-105 months' imprisonment, with credit for two days served while defendant awaited trial. The trial court determined that the mitigated sentence was appropriate under the facts of this case, finding that defendant had accepted responsibility for his criminal conduct and that defendant had a support system in the community. The trial court further recommended work release for defendant. In addition, the trial court ordered defendant pay $5,000 in restitution to Barrett as a condition of his work release. Defendant appeals.
II. Prior Record Level
Defendant first contends the trial court erred in sentencing defendant at prior record level IV. Defendant argues the State failed to prove the existence of his prior convictions by a preponderance of the evidence and that his defense counsel did not stipulate to his prior convictions. Therefore, defendant argues he is entitled to a new sentencing hearing. Alternatively, the State maintains that, because defendant consented to the prosecutor's recitation of the facts, the prosecutor stated that defendant's prior record level is level IV for sentencing, and defense counsel did not object to or otherwise contest that statement, defendant impliedly stipulated to the trial court's determination of his prior record level being level IV. Our standard of review on this issue is "`whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.'" State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (alteration in original) (quoting N.C. Gen. Stat. § 15A-1444(a1) (Cum. Supp. 1996)).
Any sentence imposed by the trial court must be consistent with the provisions of North Carolina's Structured Sentencing Act. N.C. Gen. Stat. § 15A-1331(a) (2009). Even if a defendant enters a guilty plea pursuant to a plea arrangement which provides for a specific sentence, that sentence must still be consistent with the structured sentencing guidelines for the requisite class of offense and prior record level. State v. Quick, 170 N.C. App. 166, 169, 611 S.E.2d 864, 866 (2005). Therefore, before imposing any sentence, the trial court must determine a defendant's prior record level "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) (2009).
"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) (2009). Pursuant to N.C. Gen. Stat. § 15A-1340.14(f), a defendant's prior convictions may be proved 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.
Regarding the method of proof by stipulation, "[t]his Court has held that a defendant can stipulate to a prior record level through a colloquy between defense counsel and the trial court." State v. Jeffery, 167 N.C. App. 575, 580, 605 S.E.2d 672, 675 (2004). In proving a defendant's prior record level by stipulation, our Courts have repeatedly held that "[a] stipulation does not require an affirmative statement and silence may be deemed assent in some circumstances, particularly if the defendant had an opportunity to object and failed to do so." State v. Wade, 181 N.C. App. 295, 298, 639 S.E.2d 82, 85 (2007); see also State v. Alexander, 359 N.C. 824, 829, 616 S.E.2d 914, 918 (2005); State v. Hurley, 180 N.C. App. 680, 684, 637 S.E.2d 919, 923 (2006). It is well-settled that a sentencing worksheet prepared by the State listing a defendant's prior convictions, standing alone, is insufficient to satisfy the State's burden of proof in establishing a defendant's prior convictions. Wade, 181 N.C. App. at 298, 639 S.E.2d at 85; see also State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002) ("There 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.").
In the present case, defendant principally relies on Jeffery, 167 N.C. App. 575, 605 S.E.2d 672, in support of his contention that defense counsel's actions in the present case do not constitute a stipulation as to defendant's prior record level. In Jeffery, the defendant pled guilty to six counts of taking indecent liberties with a child, Class F felonies. Id. at 576, 605 S.E.2d at 673. At sentencing, the only evidence submitted by the State to prove the defendant's prior convictions was a prior record level worksheet listing the defendant's purported convictions and establishing the defendant's prior record level at level III. Id. at 579-80, 605 S.E.2d at 675. The defendant appealed, arguing, inter alia, that "the State did not meet its burden of proving defendant's prior record level at sentencing because the State did not produce any evidence of defendant's prior record other than the prior record level worksheet." Id. at 578, 605 S.E.2d at 674.
On appeal, the State contended that defendant had "impliedly stipulated" to the existence of the necessary prior record points by entering into a plea arrangement resulting in a sentence that fell within the presumptive range for Class F felonies committed by a record level III offender. Id. at 580, 605 S.E.2d at 675. This Court rejected the State's argument, finding that a plea arrangement itself "is of insufficient specificity to rise to the level of a stipulation," and "is merely indicative of the bargain into which [the defendant] entered with the State." Id. at 581, 605 S.E.2d at 676. Further, after acknowledging that "a defendant can stipulate to a prior record level through a colloquy between defense counsel and the trial court," this Court found that such a colloquy was lacking in Jeffery. Id. at 580, 605 S.E.2d at 675-76. Accordingly, this Court held that the defendant in Jeffery was entitled to a new sentencing hearing since the State introduced no evidence of defendant's prior convictions other than the worksheet and the defendant had not stipulated to his prior record level through his counsel's interactions with the trial court. Id. at 582, 605 S.E.2d at 676.
Alternatively, the State principally relies on Wade, 181 N.C. App. 295, 639 S.E.2d 82, for its contention that defense counsel's actions at the sentencing hearing in the present case constituted a stipulation to defendant's prior record level. In Wade, as in Jeffery, the only proof of the defendant's prior convictions submitted to the trial court at sentencing was the defendant's prior record level worksheet. Wade, 181 N.C. App. at 298, 639 S.E.2d at 86. However, in determining whether the defendant had stipulated to the prior convictions on his sentencing worksheet, this Court "look[ed] to the dialogue between counsel and the trial court." Id. After the prosecutor submitted the defendant's sentencing worksheet to the trial court establishing the defendant's prior record level at level II, defense counsel responded by describing mitigating factors to the trial court. Id. at 298-99, 639 S.E.2d at 85-86. This Court held that "defendant had an opportunity to object and instead of doing so, began describing mitigating factors to the trial court," which, under those circumstances, "constituted stipulation to defendant's prior convictions." Id. at 299, 639 S.E.2d at 86.
Similarly, in State v. Hurley, 180 N.C. App. 680, 637 S.E.2d 919 (2006), at the sentencing hearing, the prosecutor submitted a sentencing worksheet to the trial court establishing the defendant's prior record level at level V. Id. at 684, 637 S.E.2d at 923. Thereafter, the prosecutor asked the trial court to impose a sentence at the top of the presumptive range for a level V, Class D offender. Id. Defense counsel responded by asking the trial court to grant the defendant work release and did not object to the prosecutor's statement. Id. at 684-85, 637 S.E.2d at 923. In "examin[ing] the dialogue between counsel and the trial court at the sentencing hearing," this Court held "the conduct of defendant's counsel during the course of the sentencing hearing constituted a stipulation of defendant's prior convictions sufficient to meet the requirements of N.C. Gen. Stat. § 15A-1340.14(f)." Id.
In addition, in State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005), our Supreme Court held: "[D]uring sentencing, a defendant need not make an affirmative statement to stipulate to his or her prior record level or to the State's summation of the facts, particularly if defense counsel had an opportunity to object to the stipulation in question but failed to do so." Id. at 829, 616 S.E.2d at 918. In Alexander, after engaging in a plea arrangement colloquy with the trial court, the defendant stipulated to the State's providing the factual basis for the plea, during which the State summarized the evidence it would have presented had the case proceeded to trial. Id. at 825-26, 616 S.E.2d at 915-16. The trial court then asked defense counsel whether he had anything "to say" with respect to sentencing, to which the defendant's attorney responded by providing a brief background of the defendant, "concluding by remarking that defendant `is a single man and up until this particular case he had no felony convictions, as you can see from his worksheet.'" Id. at 826, 616 S.E.2d at 916. Under these circumstances, our Supreme Court held the interaction between the trial court and defense counsel, especially defense counsel's direct reference to the defendant's sentencing worksheet, "constituted a stipulation of defendant's prior record level pursuant to N.C.G.S. § 15A-1340.14(f)(1)." Id. at 830, 616 S.E.2d at 918.
We find the circumstances of the present case to be most like those in Wade, Hurley, and Alexander. Here, as in Alexander, the trial court recited the terms and conditions of the plea arrangement to defendant at the sentencing hearing, stating:
Upon the defendant's plea of guilty to felony larceny with admission to habitual status, the State will agree to a sentence in the mitigated range with sufficient factors having been presented to the Court with the result that you would be sentenced to not less than 80, no more than 105 months.
Defendant responded by acknowledging that those terms were correct. Subsequently, defendant consented to a recitation of the facts by the prosecutor.
After reciting the factual basis for both the felony larceny charge and the habitual felon status, the prosecutor stated, "On the underlying offense [defendant] would have been a Level 6 for sentencing. With those felonies removed, he is a Level 4 for sentencing, 13 points." Defense counsel did not object to the prosecutor's statement of the State's position on defendant's prior record level and number of sentencing points at that time. Subsequently, the prosecutor submitted the evidence on the requested amount of restitution.
The trial court then asked defense counsel for any remarks on sentencing. Defense counsel began by telling the court that defendant believed the metal pieces he took from Barrett's property were "abandoned" or "litter" because they had been sitting out in the woods in the elements for several years. Then, defense counsel stated, "I will tell the Court that [defendant] does have a record[.]" In addition, defense counsel neither objected to nor rebutted the State's position on defendant's prior record level or number of sentencing points. Rather, as in Hurley, defense counsel stated that "with the habitual status [defendant] . . . is looking at a pretty stiff sentence in this case," and asked the trial court to recommend work release. Further, as in Wade, defense counsel thereafter recited mitigating factors and contested the State's requested amount of restitution.
Notably, unlike Jeffery, defense counsel in the present case did engage in a colloquy with the trial court regarding defendant's sentencing, specifically referencing his prior record, describing mitigating factors for sentencing, and requesting work release. Accordingly, based on the words and actions of defense counsel, we find defendant's prior convictions were proved by stipulation of the parties, thereby satisfying the State's burden under N.C. Gen. Stat. § 15A-1340.14(f). In addition, "[w]e also note that defendant has not asserted in his appellate brief that any of the prior convictions listed on the worksheet do not, in fact, exist." Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 743. Under the circumstances of the present case, the trial court did not err in sentencing defendant at prior record level IV.
III. Restitution
Next, defendant contends the trial court erred in recommending that defendant pay $5,000 in restitution as a condition of his work release. Defendant argues the amount is not supported by competent evidence in the record. Alternatively, the State argues that defense counsel stipulated to the amount of restitution by remaining silent and not objecting to the trial court's statement that it was "inclined to impose a lesser amount" than that requested as restitution by the prosecutor. This Court reviews de novo the issue of whether the amount of restitution recommended by the trial court is supported by competent evidence in the record. State v. McNeil, ___ N.C. App. ___, ___, 707 S.E.2d 674, 684 (2011).
"An order of restitution as a condition of work-release must be supported by evidence adduced at trial or at sentencing." State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d 557, 560 (1986); see also State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007) ("It is uncontested that `[t]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.'" (alteration in original) (quoting State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004))). "In the absence of an agreement or stipulation between defendant and the State, evidence must be presented in support of an award of restitution." State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). Unsworn statements made by the prosecutor at sentencing "`[do] not constitute evidence and cannot support the amount of restitution recommended.'" Replogle, 181 N.C. App. at 584, 640 S.E.2d at 761 (alteration in original) (quoting Buchanan, 108 N.C. App. at 341, 423 S.E.2d at 821).
"`[W]hen . . . there is some evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal.'" State v. Tuck, 191 N.C. App. 768, 774, 664 S.E.2d 27, 31 (2008) (omission in original) (quoting State v. Davis, 167 N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005) (upholding restitution award where trial court awarded average of amounts testified to by two witnesses)). However, our Courts have held "there must be something more than a guess or conjecture as to an appropriate amount of restitution." Daye, 78 N.C. App. at 758, 338 S.E.2d at 561 (emphasis added).
In the present case, the State requested restitution in the amount of $24,645 — the purchase price of the metal building as reflected on Barrett's sales receipt — and submitted a restitution worksheet to the trial court in support of that request. In response, defense counsel acknowledged that she had "looked at the sales receipt/purchase order for [Barrett's] building," stating that "[i]t appears to have been purchased in 1995." Defense counsel further stated that the metal pieces "had been laying in the woods for a long time," were "grown over and hard to see," and were "left sitting in the rain, out in the elements for years and years and years." Defense counsel asked the trial court not to consider the amount of restitution requested by the State because the "material probably wasn't worth what [Barrett] had paid for it."
Thereafter, the trial court inquired of the prosecutor "about this notion that the property had been out there for years and years," to which the prosecutor responded that he believed the material was actually delivered on a much later date than the receipt had shown, but that Barrett was not available to testify as to the facts surrounding the purchase, delivery, and condition of the metal. The trial court announced that it was "inclined to order a much lesser amount than [the amount requested]" because "in the whole scheme of things, it really won't make any difference." The trial court then recommended that defendant be eligible for work release and pay restitution in the amount of $5,000 as a condition of defendant's work release.
Based on the record, we find no evidence to support the amount of restitution recommended by the trial court. In its order for restitution, the trial court indicated it ordered the $5,000 amount "in light of [the] condition of [the] property." However, no evidence was introduced at the sentencing hearing regarding the condition of the metal pieces at the time they were taken by defendant, nor the value of the metal pieces taken by defendant. Although defense counsel admitted the amount requested by the State was the amount shown on Barrett's sales receipt, defense counsel disputed the value of the property given its condition at the time it was taken by defendant. Although the amount of $5,000 recommended by the trial court is "much lower" than the amount requested by the State, there was no evidence before the trial court that $5,000, or any other amount, was the "appropriate amount" of restitution to compensate Barrett for the loss of his property. Daye, 78 N.C. App. at 758, 338 S.E.2d at 561.
Furthermore, the State's argument that defense counsel's silence constitutes a stipulation as to the amount of restitution imposed must fail as a matter of law. In Replogle, 181 N.C. App. 579, 640 S.E.2d 757, the State argued a similar "silence as stipulation" theory regarding a restitution order, relying on our Supreme Court's holding in Alexander, supra. Replogle, 181 N.C. App. at 584, 640 S.E.2d at 761. However, in addressing such an argument in the context of restitution orders, this Court expressly rejected "the State's attempt to broadly read Alexander." Id. Specifically, this Court found that " Alexander speaks primarily to the issue of stipulation to prior record level." Id. In addition, this Court held, "While it is true that `[s]ilence, under some circumstances, may be deemed assent,' a stipulation's terms must nevertheless `be definite and certain in order to afford a basis for judicial decision, and it is essential that they be assented to by the parties or those representing them.'" Id. (quoting Alexander, 359 N.C. at 828, 616 S.E.2d at 917). Accordingly, Replogle rejects the State's "silence as stipulation" theory on "the issue of restitution." Id.
This Court again rejected the State's "silence as stipulation" theory in the context of restitution orders in State v. Mauer, ___ N.C. App. ___, 688 S.E.2d 774 (2010). In Mauer, the State argued that defendant impliedly stipulated to the trial court's order of restitution by remaining silent when the trial court announced the amount of restitution it was awarding. Id. at ___, 688 S.E.2d at 778. However, this Court held "defendant's silence while the trial court orally entered judgment against her does not constitute a stipulation to amount of restitution." Id.
Here, we find no definite and certain restitution amount to which defense counsel could have agreed to during the sentencing hearing. The trial court's inclination to "award a lower amount" than that requested by the State is certainly not a definite statement of the restitution amount. Likewise, as in Mauer, defendant's failure to object at the moment the trial court orally entered judgment reflecting the restitution amount being recommended cannot constitute a stipulation by defendant as to that amount. Rather, the record shows the "appropriate amount" of restitution for the metal pieces taken by defendant was in dispute, and there is no evidence in the record to support the trial court's decision concerning the figure actually recommended in its restitution order. Accordingly, we must vacate the trial court's restitution recommendation and remand for rehearing on the issue of restitution.
IV. Conclusion
We hold defense counsel's actions at the sentencing hearing during a colloquy with the trial court constituted a stipulation as to defendant's prior convictions and prior record level for sentencing. Consequently, we affirm the trial court's sentencing defendant at prior record level IV. However, defense counsel did not likewise stipulate to the amount of restitution recommended by the trial court. In addition, we find no evidence in the record to support the amount of restitution ordered by the trial court. Accordingly, we must vacate the trial court's award of restitution, and we remand to the trial court for rehearing on the issue of restitution only.
Affirmed in part, vacated in part, and remanded.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).