{ "id": 8410755, "name": "STATE OF NORTH CAROLINA v. JAMES DONNELL ALEXANDER", "name_abbreviation": "State v. Alexander", "decision_date": "2004-11-16", "docket_number": "No. COA04-259", "first_page": "79", "last_page": "85", "citations": [ { "type": "official", "cite": "167 N.C. App. 79" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "499 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "195" }, { "page": "197" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650281 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0366-01" ] }, { "cite": "366 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "583", "parenthetical": "holding that, when prosecutor stated that defendant had 1974 and 1977 convictions, defense counsel's response that defendant's record indicated no convictions for almost ten years constituted an admission that defendant did have these two older convictions" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522571 ], "year": 1988, "pin_cites": [ { "page": "436", "parenthetical": "holding that, when prosecutor stated that defendant had 1974 and 1977 convictions, defense counsel's response that defendant's record indicated no convictions for almost ten years constituted an admission that defendant did have these two older convictions" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0431-01" ] }, { "cite": "423 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "810" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523378 ], "year": 1992, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0185-01" ] }, { "cite": "595 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "810-11" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896980 ], "year": 2004, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0298-01" ] }, { "cite": "540 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133610 ], "year": 2000, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0679-01" ] }, { "cite": "565 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "742" }, { "page": "743" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080945 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "505" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0499-01" ] }, { "cite": "499 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "196" }, { "page": "197" } ], "opinion_index": 1 }, { "cite": "129 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650281 ], "year": 1998, "pin_cites": [ { "page": "369" } ], "opinion_index": 1, "case_paths": [ "/nc-app/129/0366-01" ] }, { "cite": "565 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "742" }, { "page": "742" } ], "opinion_index": 1 }, { "cite": "151 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080945 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "505" }, { "page": "506" } ], "opinion_index": 1, "case_paths": [ "/nc-app/151/0499-01" ] } ], "analysis": { "cardinality": 610, "char_count": 15305, "ocr_confidence": 0.754, "pagerank": { "raw": 8.884283093182263e-08, "percentile": 0.49948452593182074 }, "sha256": "159625ec901cec66a76424fe96a199c51378f806b509bbe5ff90f93f6b4358dd", "simhash": "1:e3edf0684e22adf0", "word_count": 2444 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge TIMMONS-GOODSON dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES DONNELL ALEXANDER" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendant pled guilty on 8 September 2003 to assault with a deadly weapon with intent to kill inflicting serious injury pursuant to a plea agreement providing that \u201cthe State will agree that the defendant be sentenced to a minimum of 80 months and a maximum of 105 months.\u201d The trial court sentenced defendant within the presumptive range at prior record level II to the above term of imprisonment. The court also recommended that defendant pay restitution in the amount of $16,822.26 as a condition of work release. Defendant now appeals from the judgment contending: (1) the court erred by sentencing him at prior record level II because the State failed to prove his prior convictions, (2) the court erred by recommending the payment of restitution based upon a restitution worksheet defendant\u2019s counsel had not seen, and (3) defendant was denied effective assistance of counsel because his counsel stipulated to the restitution worksheet without having first seen it. On appeal, defendant seeks a new sentencing hearing.\nWe first address defendant\u2019s argument that the trial court erred in sentencing him at a Level II prior record level. We conclude that the sentence imposed by the trial court is unsupported by the evidence such that defendant is entitled to a new sentencing hearing.\nDuring defendant\u2019s sentencing hearing, the State submitted a prior record level worksheet assigning one point to defendant for previously having been convicted of misdemeanor assault inflicting serious injury. The record reveals that the court did not rely on any documentary evidence to prove this prior offense. The State contends that its burden of proof with respect to the existence and classification of defendant\u2019s prior conviction was satisfied by defendant\u2019s stipulation. The alleged stipulation is said to result from defense counsel\u2019s statement to the trial court that \u201cuntil this particular case [defendant] had no felony convictions, as you can see from his worksheet.\u201d\n\u201cThere is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant\u2019s prior convictions is, without more, insufficient to satisfy the State\u2019s burden in establishing proof of prior convictions.\u201d State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002). A prior conviction may, however, be proved by a stipulation between the parties. N.C.G.S. \u00a7 15A-1340.14(f)(l) (2003). An affirmative statement by counsel expressing agreement with the convictions listed on the prior record level worksheet is a stipulation sufficient to prove the prior conviction or record level. Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 743; State v. Hanton, 140 N.C. App. 679, 689, 540 S.E.2d 376, 382 (2000). Clear and unequivocal statements expressing agreement with, or the lack of an objection to, the items listed on a sentencing worksheet have been held to be stipulations. See State v. Morgan, 164 N.C. App. 298, 307, 595 S.E.2d 804, 810-11 (2004) (holding defendant had stipulated to record level where defense counsel \u201cconceded the existence of the convictions by arguing that defendant should be sentenced at a level III on the basis of her prior record\u201d and \u201cmade no objection to the prior record level worksheet except to the number of points [that a] third degree homicide conviction from New Jersey should receive\u201d). A stipulation may also be found to exist where defense counsel makes a statement indicating that he has reviewed the worksheet and at least partially agrees with it. See State v. Cunningham, 108 N.C. App. 185, 198, 423 S.E.2d 802, 810 (1992) (holding that, when prosecutor stated at sentencing hearing that defendant had prior convictions of loitering and resisting a public. officer, defense counsel\u2019s statement that the defense would object to the loitering as not carrying a sixty-day sentence amounted to an admission or stipulation that defendant had the prior convictions asserted by the prosecutor); State v. Brewer, 89 N.C. App. 431, 436, 366 S.E.2d 580, 583 (1988) (holding that, when prosecutor stated that defendant had 1974 and 1977 convictions, defense counsel\u2019s response that defendant\u2019s record indicated no convictions for almost ten years constituted an admission that defendant did have these two older convictions).\nIn the instant case, defense counsel relied on the worksheet only to the extent he agreed with the State that defendant had no prior felony convictions. Defense counsel did not expressly or tacitly agree with the item listed thereon. His representations to the court went no further. The State would have us equate \u201cthe worksheet shows no felonies\u201d with \u201cmy client was convicted of the misdemeanor on the worksheet.\u201d This is not, in our view, a fair or practical interpretation of defense counsel\u2019s statement. Any ambiguity in defense counsel\u2019s statement should militate against holding that there was a stipulation. We therefore conclude that the circumstances of the present case axe not analogous to those circumstances in which it has been held that a defendant stipulated to the State\u2019s assertion concerning the convictions listed on the worksheet.\nRelying on State v. Hamby, 129 N.C. App. 366, 499 S.E.2d 195 (1998), the State contends that, even if the defendant\u2019s prior record level was not supported by evidence presented at the sentencing hearing, this issue has been mooted by defendant\u2019s express agreement to serve 80 to 105 months imprisonment. In Hamby, the defendant entered a guilty plea pursuant to a transcript of plea that expressly included the following: \u201cCharge is Class E felony and defendant has a record level of II. The defendant will receive a sentence of 29 mos. min. \u2014 44 mos. mas.\"- Hamby, 129 N.C. App. at 367, 499 S.E.2d at 195. This Court held that by admitting that her prior record level was Level II and agreeing to the specified sentencing range, \u201cdefendant mooted the issues of whether her prior record level was correctly determined . . . and whether the duration of her prison sentence was authorized.\u201d Id. at 369-70, 499 S.E.2d at 197. Accordingly, defendant had no right to appeal on these issues, and her appeal was dismissed. Id.\nUnlike the defendant in Hamby, the present defendant did not stipulate to his prior record level, but instead stipulated only to a minimum and maximum term of imprisonment. This difference is significant because a stipulation to a prior record level is a stipulation that the requirements established by the Legislature for defendant to be sentenced pursuant to a particular level of the sentencing grid (e.g., prior conviction points, offense committed while on probation, parole, or post-release supervision, etc.) have been met. On the contrary, a stipulation to a minimum and maximum term of imprisonment, without more, does not ensure that the sentence imposed comports, with the sentencing scheme imposed by the General Assembly.\nAllowing offenders to stipulate to prior record level and therefore waive an argument on appeal that the prosecutor did not prove such is very different than the rule advanced by the State here. To permit defendant\u2019s sentence to stand, irrespective of whether the General Statutes authorize such a sentence to be imposed, would be tantamount to permitting our courts to sentence defendants to terms of imprisonment based not on the collective agreement of our Legislature, but instead on counsels\u2019 individualized notions of appropriate punishment.\nMoreover, such a rule would be contrary to our sentencing scheme, which contemplates an examination of prior record points to determine a prior .record level which, in turn, controls the range of a sentence. See N.C.G.S. \u00a7 15A-1340.14 (2003); N.C.G.S. \u00a7 15A-1340.17 (2003). The General Statutes are explicit in their requirement that \u201c[b]efore imposing a sentence, the court shall determine the prior record level for the offender. . . .\u201d N.C.G.S. \u00a7 15A-134.13(a) (2003) (emphasis added). This is, of course, an important ministerial exercise on the part of the sentencing court, the object of which is to ensure that offenders are sentenced in accordance with the law of this State.\nThe present defendant was convicted of a class C felony and agreed to serve a sentence of 80 to 105 months imprisonment. Such a sentence could be imposed lawfully as a presumptive sentence for a defendant with a prior record level II, a mitigated sentence for a defendant with a prior record level III, or an aggravated sentence for a defendant with a prior record level I. See G.S. \u00a7 15A-1340.17. However, the trial court did not require that the State prove defendant\u2019s prior record level, but instead permitted defendant to agree to a particular sentence. Therefore, it is possible that defendant is a Level V offender, such that 80 months as a mandatory minimum is not even authorized. Without proof of defendant\u2019s prior record level, we cannot know at this point. Likewise, it is possible that defendant is a Level I offender and has received an aggravated sentence without the trial court making any findings in aggravation. Again, without proof of defendant\u2019s prior record level, we cannot know at this point. Applying the dissent\u2019s rationale, defendant\u2019s agreement to serve 80 mandatory months, standing alone, would be sufficient without regard to whether such a sentence may be lawfully imposed in light of defendant\u2019s prior record. We easily reject the suggestion that we can, under these circumstances, permit the prosecutor and defendant to stipulate to a specific term of imprisonment irrespective of what might be permitted by the Structured Sentencing Act.\nIn sum, we hold that defense counsel did not stipulate to the misdemeanor conviction such that Eubanks would control the outcome here. Furthermore, defendant\u2019s stipulation to an 80-105 month sentence, standing alone, does not render the issue of whether the State proved defendant\u2019s prior conviction moot. Thus, the differing results in Hamby and the present case are entirely logical.\nBecause we grant relief pursuant to defendant\u2019s first argument on appeal, we need not address his remaining assignments of error.\nNew sentencing hearing.\nJudge CALABRIA concurs.\nJudge TIMMONS-GOODSON dissents.", "type": "majority", "author": "LEVINSON, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\ndissenting.\nBecause I conclude that the trial court did not err in sentencing defendant, I respectfully dissent.\nAs the majority correctly notes, defendant and the State entered into a plea agreement whereby defendant would be sentenced to eighty to 105 months imprisonment in exchange for his plea of guilty to the charge of assault with a deadly weapon with intent to kill inflicting serious injury. On appeal, defendant argues that the trial court erred in sentencing him to the agreed upon term because he failed to stipulate to the prior record level used by the trial court during sentencing. I disagree.\nI recognize that \u201c[t]here is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant\u2019s prior convictions is, without more, insufficient to satisfy the State\u2019s burden in establishing proof of prior convictions.\u201d State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002). However, I also note that \u201c[a] prior conviction shall be proved by... [stipulation of the parties ... [or] [a]ny other method found by the court to be reliable.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(f)(1), (4) (2003). In the instant case, when asked by the trial court whether there was \u201canything\u201d he wanted to say \u201cas to sentencing,\u201d defendant\u2019s counsel stated that defendant \u201cis a single man and up until this particular case he had no felony convictions, as you can see from his worksheet.\u201d (emphasis added). I conclude that this statement \u201cmay reasonably be construed as a stipulation by defendant that he had been convicted of the charges listed on the worksheet.\u201d Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 742.\nFurthermore, I note that this Court has previously stated that \u201cif during plea negotiations the defendant essentially stipulated to matters that moot the issues he could have raised under [N.C. Gen. Stat. \u00a7 15A-1444](a2), his appeal should be dismissed.\u201d State v. Hamby, 129 N.C. App. 366, 369, 499 S.E.2d 195, 196 (1998). In Hamby, we held that by admitting \u201cthat her prior record level was II, that punishment for the offense could be either intermediate or active in the trial court\u2019s discretion and that the trial court was authorized to sentence her to a maximum of forty-four months in prison,\u201d the defendant \u201cmooted the issues of whether her prior record level was correctly determined, whether the type of sentence disposition was authorized and whether the duration of her prison sentence was authorized.\u201d Id. at 369-70, 499 S.E.2d at 197. In the instant case, while defendant did not explicitly admit to being a prior record level II offender in his guilty plea, the plea agreement nevertheless authorizes the State to impose upon him a punishment consistent with that of a prior record level II offender. Under the Structured Sentencing Act, an individual found guilty of a Class C felony with a prior record level II may be sentenced in the presumptive range to a term of eighty to 105 months imprisonment, the exact sentence imposed upon and consented to by defendant in his plea agreement. N.C. Gen. Stat. \u00a7 15A-1340.17 (2003).\nDefendant does not challenge the existence of any of the prior convictions listed in the worksheet, choosing rather to challenge the sufficiency of the stipulation relied upon by the trial court at sentencing. Because I conclude that defendant stipulated to his prior record level, I would hold that the trial court did not err in sentencing defendant to eighty to 105 months imprisonment. Furthermore, because I have examined defendant\u2019s other assignments of error and have determined that they are without merit, I would also hold that defendant received a trial free of prejudicial error.", "type": "dissent", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Robert O. Crawford, III, for the State.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES DONNELL ALEXANDER\nNo. COA04-259\n(Filed 16 November 2004)\nSentencing\u2014 prior record level \u2014 agreement\u2014Structured Sentencing requirements\nThe trial court erred when sentencing defendant for assault by relying on a record level worksheet submitted by the State showing a prior misdemeanor assault (with no other documentary evidence) along with defendant\u2019s stipulation to a sentence range and defense counsel\u2019s statement that defendant had no prior felonies. A worksheet is not sufficient without more to meet the State\u2019s burden, defense counsel did not agree with the item listed on the worksheet, and the stipulation to a minimum and maximum term of imprisonment is not a stipulation that the requirements established by the Legislature for sentencing have been met. The defendant and the prosecution may not, under these circumstances, stipulate to a specific term of imprisonment irrespective of what might be permitted by the Structured Sentencing Act.\nJudge TIMMONS-GOODSON dissenting.\nAppeal by defendant from judgment entered 8 September 2003 by Judge Jerry R. Tillett in Pasquotank County Superior Court. Heard in the Court of Appeals 18 October 2004.\nAttorney General Roy Cooper, by Special Deputy Attorney General Robert O. Crawford, III, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant." }, "file_name": "0079-01", "first_page_order": 109, "last_page_order": 115 }