{ "id": 8412328, "name": "STATE OF NORTH CAROLINA v. RONALD JEFFERY", "name_abbreviation": "State v. Jeffery", "decision_date": "2004-12-21", "docket_number": "No. COA03-1364", "first_page": "575", "last_page": "582", "citations": [ { "type": "official", "cite": "167 N.C. App. 575" } ], "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": "406 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554860 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0683-01" ] }, { "cite": "381 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "848" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 27", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519364 ], "year": 1989, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0027-01" ] }, { "cite": "342 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "quoting 83 C.J.S., Stipulations, s.3, p.3" } ], "opinion_index": 0 }, { "cite": "316 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697700 ], "year": 1986, "pin_cites": [ { "parenthetical": "quoting 83 C.J.S., Stipulations, s.3, p.3" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0523-01" ] }, { "cite": "118 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "619-20" }, { "page": "620" } ], "opinion_index": 0 }, { "cite": "254 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625597 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "234-35" }, { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0231-01" ] }, { "cite": "595 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "189" }, { "page": "188-89" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8895190 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "24" }, { "page": "22-23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0001-01" ] }, { "cite": "604 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "167 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410755 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/167/0079-01" ] }, { "cite": "583 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "386-87" }, { "page": "387" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957257 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "556-57" }, { "page": "557" }, { "page": "556-57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0546-01" ] }, { "cite": "577 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491495 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0043-01" ] }, { "cite": "560 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125227 ], "year": 2002, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0057-01" ] }, { "cite": "565 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "742" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080945 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "505" }, { "page": "506" }, { "page": "504-05" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0499-01" ] }, { "cite": "577 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191220 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "501-02" }, { "page": "502" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0490-01" ] }, { "cite": "591 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985088 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0133-01" ] }, { "cite": "583 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 608", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957680 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "614-15" }, { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0608-01" ] }, { "cite": "364 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "holding that the \"defendant was not required to object at the sentencing hearing in order to assert the insufficiency of the [State's] remarks as a matter of law to prove his prior convictions by a preponderance of the evidence.\"" } ], "opinion_index": 0 }, { "cite": "321 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569057, 2570019, 2572295, 2569672, 2570462 ], "year": 1998, "pin_cites": [ { "parenthetical": "holding that the \"defendant was not required to object at the sentencing hearing in order to assert the insufficiency of the [State's] remarks as a matter of law to prove his prior convictions by a preponderance of the evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0477-03", "/nc/321/0477-05", "/nc/321/0477-02", "/nc/321/0477-01", "/nc/321/0477-04" ] }, { "cite": "359 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "491" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357808 ], "year": 1987, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0024-01" ] }, { "cite": "410 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512114 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0398-01" ] }, { "cite": "577 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "705", "parenthetical": "citing State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185131 ], "year": 2003, "pin_cites": [ { "page": "92", "parenthetical": "citing State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0090-01" ] }, { "cite": "491 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "685", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798543 ], "year": 1997, "pin_cites": [ { "page": "540", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0536-01" ] }, { "cite": "467 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "342 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795978 ], "year": 1996, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0580-01" ] }, { "cite": "154 L. Ed. 808", "category": "reporters:federal", "reporter": "L. Ed.", "year": 2003, "opinion_index": 0 }, { "cite": "537 U.S. 1125", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9346112, 9346147, 9346340, 9346181, 9346084, 9346053, 9346027, 9346413, 9346288, 9346451, 9346233, 9345946, 9345980, 9345918, 9346495 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/537/1125-07", "/us/537/1125-08", "/us/537/1125-12", "/us/537/1125-09", "/us/537/1125-06", "/us/537/1125-05", "/us/537/1125-04", "/us/537/1125-13", "/us/537/1125-11", "/us/537/1125-14", "/us/537/1125-10", "/us/537/1125-02", "/us/537/1125-03", "/us/537/1125-01", "/us/537/1125-15" ] }, { "cite": "565 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "625" } ], "opinion_index": 0 }, { "cite": "355 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219972 ], "year": 2002, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0501-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "588 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "546-47", "parenthetical": "finding a defendant who pled guilty did not have an \"appeal of right\" regarding the issue of whether his indictment was proper" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959035 ], "year": 2003, "pin_cites": [ { "page": "528-29", "parenthetical": "finding a defendant who pled guilty did not have an \"appeal of right\" regarding the issue of whether his indictment was proper" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0527-01" ] }, { "cite": "400 U.S. 25", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12045986 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0025-01" ] } ], "analysis": { "cardinality": 736, "char_count": 15315, "ocr_confidence": 0.75, "pagerank": { "raw": 6.265083793759917e-07, "percentile": 0.9577847974920546 }, "sha256": "6d810f5245f32bf52f28b072dfa86202a410ec4369d4bac002260bed7a923742", "simhash": "1:6b38d5ea64fe8c56", "word_count": 2554 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RONALD JEFFERY" ], "opinions": [ { "text": "McGEE, Judge.\nRonald Jeffery (defendant) pled guilty on 16 April 2003 to six counts of taking indecent liberties with a child, Class F felonies. The plea was entered pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970). The six bills of information to which defendant pled guilty alleged that defendant took indecent liberties with B.L.L., defendant\u2019s minor stepdaughter, during the following six time periods: between 7 May 2000 and 7 July 2000; between 7 August 2000 and 6 October 2000; between 7 November 2000 and 7 January 2001; between 7 February 2001 and 7 April 2001; between 7 May 2001 and 7 July 2001; and between 7 August 2001 and 7 October 2001. The trial court sentenced defendant to six consecutive sentences of twenty to twenty-four months in prison. In exchange for his plea, the State dismissed rape and sex offense charges against defendant. Defendant appeals.\nThe State\u2019s factual basis for entry of defendant\u2019s plea tended to show that B.L.L. resided with her mother and defendant. Beginning in May 2000, when B.L.L. was eleven years old, defendant engaged in various sex acts with B.L.L. On the first occasion, defendant put a knife to B.L.L.\u2019s throat and put his penis inside her. Defendant threatened to kill B.L.L. and her mother if B.L.L. told anyone. On other occasions, defendant would wake B.L.L. up and \u201chave sex with [her] on the [living room] floor.\u201d On two occasions, defendant made B.L.L. \u201csuck his penis.\u201d Defendant had sex with B.L.L. for the last time \u201cone or two weeks before [defendant] was sent to prison\u201d on other charges on 15 January 2002. In her statement, B.L.L. indicated that she did not know exactly how many times defendant had sex with her but she stated that \u201cit has been a lot.\u201d\nAfter defendant was sent to prison, B.L.L. told her mother that defendant had been having sex with her. B.L.L. had medical evaluations at both the Apex Center and the Purcell Clinic. Both evaluations led to the conclusion that B.L.L.\u2019s hymen had been broken and that there were \u201cclear signs that she had had sexual intercourse.\u201d\nB.L.L.\u2019s natural father had previously been convicted of sex crimes against children. Although B.L.L. had seen her natural father after his release from prison, B.L.L. was adamant that her natural father had never abused her. According to the State, B.L.L. was consistent and specific in her claims that defendant committed these crimes against her.\nI.\nDefendant argues in his first assignment of error that the six bills of information upon which defendant was convicted were unconstitutionally vague. Specifically, defendant argues that the bills of information, by leaving open five one-month gaps during the overall time period in which the State contends the offenses occurred, unreasonably expose defendant to future charges, violating his constitutional right against double jeopardy. Defendant also contends that the bills of information were not supported by the State\u2019s factual basis for the plea, since there was evidence that B.L.L. was in fact sexually assaulted by her natural father. In response, the State argues that defendant has no right to appeal this issue. We agree with the State.\nUnder N.C. Gen. Stat. \u00a7 15A-1444 (2003), a defendant who pleads guilty has a right to appeal only the following issues: (1) whether a defendant\u2019s sentence is supported by evidence introduced at the trial and sentencing hearing, but only if the minimum sentence for imprisonment does not fall within the presumptive range; (2) whether the sentence imposed resulted from an incorrect record level finding or was not of a type or duration authorized for a defendant\u2019s class of offense or record level; or (3) when a motion to withdraw a plea of guilty or a motion to suppress evidence is denied.\nDefendant entered an Alford plea, yet this assignment of error does not concern his sentencing, a motion to withdraw a guilty plea, or a motion to suppress evidence. This assignment of error therefore falls outside the scope of the matters that defendant is statutorily entitled to appeal and is not properly before this Court. See, e.g., State v. Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47 (2003) (finding a defendant who pled guilty did not have an \u201cappeal of right\u201d regarding the issue of whether his indictment was proper).\nWe also note that defendant did not challenge the constitutionality of the bills of information before the trial court. Our Supreme Court has stated that \u201c [constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.\u201d State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001); see also State v. Williams, 355 N.C. 501, 528, 565 S.E.2d 609, 625 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 808 (2003). Defendant acknowledges that he failed to object to the indictments at trial, yet urges us to apply plain error review. However, we may only apply plain error review to issues involving jury instructions or rulings on the admissibility of evidence. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). As a result, we do not review this assignment of error.\nII.\nDefendant argues in his remaining assignment of error that the State did not meet its burden of proving defendant\u2019s prior record level at sentencing because the State did not produce any evidence of defendant\u2019s prior record other than the prior record level worksheet. In reviewing this assignment of error, \u201cour standard of review is \u2018whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.\u2019 \u201d State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (alteration in original) (quoting N.C. Gen. Stat. \u00a7 15A-1444 (a1) (Cum. Supp. 1996)). The State bears the burden of proving a prior conviction by a preponderance of the evidence. N.C. Gen. Stat. \u00a7 15A-1340.14(f) (2003). Prior convictions may be proven by any one of the following methods:\n(1) Stipulation of the parties.\n(2) An original or copy of the court record of the prior conviction.\n(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.\n(4) Any other method found by the court to. be reliable.\nId.\nThe State contends that defendant has waived this argument by failing to object as required by N.C.R. App. P. 10(b)(1). However, \u201c[o]ur Supreme Court has held that an error at sentencing is not considered an error at trial for the purpose of N.C. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure\u201d and therefore no objection is required to preserve the issue for appellate review. State v. Hargett, 157 N.C. App. 90, 92, 577 S.E.2d 703, 705 (2003) (citing State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)); see also State v. Mack, 87 N.C. App. 24, 33, 359 S.E.2d 485, 491 (1987), disc. review denied, 321 N.C. 477, 364 S.E.2d 663 (1998) (holding that the \u201cdefendant was not required to object at the sentencing hearing in order to assert the insufficiency of the [State\u2019s] remarks as a matter of law to prove his prior convictions by a preponderance of the evidence.\u201d) Therefore, this assignment of error is properly before this Court.\nThe State does not satisfy its burden of proving defendant\u2019s prior record level merely by submitting a prior record level worksheet to the trial court. See State v. Miller, 159 N.C. App. 608, 614-15, 583 S.E.2d 620, 624 (2003), aff'd per curiam, 358 N.C. 133, 591 S.E.2d 520 (2004); State v. Bartley, 156 N.C. App. 490, 501-02, 577 S.E.2d 319, 326 (2003); State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002). \u201c[T]he law requires more than the State\u2019s unverified assertion that a defendant was convicted of the prior crimes listed on a prior record level worksheet.\u201d State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196, 205 (2002), rev\u2019d on other grounds per curiam, 357 N.C. 43, 577 S.E.2d 619 (2003).\nIn State v. Riley, 159 N.C. App. 546, 556-57, 583 S.E.2d 379, 386-87 (2003), the State submitted only a prior record level worksheet to the trial court as evidence of the defendant\u2019s prior record level. This Court held that absent any records of the defendant\u2019s prior convictions, either from the trial court or an agency listed in N.C. Gen. Stat. \u00a7 15A-1340.14(f)(3), the worksheet was an insufficient means for the State to prove the defendant\u2019s prior convictions by a preponderance of the evidence. Riley, 159 N.C. App. at 557, 583 S.E.2d at 387; accord Miller, 159 N.C. App. at 615, 583 S.E.2d at 624; see also Bartley, 156 N.C. App. at 502, 577 S.E.2d at 326.\nIn this case, the State has similarly failed to prove defendant\u2019s prior record level by a preponderance of the evidence. The State submitted only the prior record level worksheet listing the purported convictions of defendant, which established his prior record at level III. The State never tendered to the trial court or entered into evidence any supporting court documents or other statutorily authorized means of proof of defendant\u2019s prior convictions. An otherwise unsupported worksheet tendered by the State establishing a defendant\u2019s prior record level is not even \u201csufficient to meet the catchall provision found in [N.C. Gen. Stat.] \u00a7 15A-1340.14(f)(4), even if uncontested by defendant.\u201d Riley, 159 N.C. App. at 556-57, 583 S.E.2d at 387; see also Bartley, 156 N.C. App. at 502, 577 S.E.2d at 326.\nThe State contends that defendant \u201cimpliedly stipulated\u201d to a prior record level III by entering into a plea agreement that estabT lished defendant\u2019s sentence at twenty to twenty-four months in prison for each charge, a sentence within the presumptive range for Class F felonies committed by a record level III felon. We recently rejected a similar argument in State v. Alexander, 167 N.C. App. 79, 604 S.E.2d 361 (2004).\nThis Court has held that a defendant can stipulate to a prior record level through a colloquy between defense counsel and the trial court. In Eubanks, we held that such statements made by defense counsel could \u201creasonably 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 743. In Eubanks, the following exchange occurred at the trial court:\nThe Court: Evidence for the State?\n[The Prosecutor]: If Your Honor please, under the Structured Sentencing Act of North Carolina, the defendant has a prior record level of four in this case, Your Honor.\nThe Court: Do you have a prior record level worksheet?\n[The Prosecutor]: Yes, sir, I do.\nThe Court: All right. Have you seen that, Mr. Prelipp [attorney for defendant]?\nMr. Prelipp: I have, sir.\nThe Court: Any objections to that?\nMr. Prelipp: No, sir.\nId. at 504-05, 565 S.E.2d at 742.\nSimilarly, in State v. Johnson, 164 N.C. App. 1, 24, 595 S.E.2d 176, 189 (2004), we held that when defense counsel \u201canswered in the affirmative\u201d in response to the trial court\u2019s statement that the defendant had a prior record level III, the exchange was a stipulation to the prior convictions listed on the worksheet.\nJohnson and Eubanks are distinguishable from the case before us. In both Johnson and Eubanks, defense counsel engaged in a colloquy with the trial court that specifically mentioned the defendants\u2019 prior record levels and elicited admissions by defense counsel as to the validity of the worksheets upon which the record levels were based. See Johnson, 164 N.C. App. at 22-23, 595 S.E.2d at 188-89; Eubanks, 151 N.C. App. at 504-05, 565 S.E.2d at 742. Such a colloquy is lacking in our present case. Defense counsel makes no reference to the worksheet in his discussion with the trial court. In fact, the only mention of defendant\u2019s prior record level is the trial court\u2019s statement that defendant has \u201cseven prior record points\u201d and has a \u201cprior record level three.\u201d\nFurthermore, defendant\u2019s plea agreement, in which defendant agreed to six consecutive sentences of twenty to twenty-four months in prison, is of insufficient specificity to rise to the level of a stipulation. Our Supreme Court has held that\n\u201c[w]hile a stipulation need not follow any particular form, its terms must 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. ...\u201d\n. . . Silence will not be construed as assent thereto unless the solicitor specifies that assent has been given.\nState v. Powell, 254 N.C. 231, 234-35, 118 S.E.2d 617, 619-20 (1961), overruled on other grounds by State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986) (quoting 83 C.J.S., Stipulations, s.3, p.3); see also State v. Mullican, 95 N.C. App. 27, 29, 381 S.E.2d 847, 848 (1989), aff\u2019d, 329 N.C. 683, 406 S.E.2d 854 (1991). Defendant\u2019s agreement to six presumptive range sentences is not a \u201cdefinite and certain\u201d indication that defendant has a prior record level III. It is merely indicative of the bargain into which he entered with the State. Additionally, under Powell, defendant\u2019s failure to object at the sentencing hearing to a prior record level III cannot be interpreted as a stipulation. Powell, 254 N.C. at 235, 118 S.E.2d at 620.\nTherefore, since the State introduced no evidence of defendant\u2019s prior record level other than the worksheet, and defendant did not stipulate to a prior record level III, defendant is entitled to a new sentencing hearing for a determination of his prior record points and level.\nWe find no error in the six bills of information to which defendant pled guilty; we remand defendant\u2019s case for resentencing.\nAffirmed; remanded for resentencing.\nChief Judge MARTIN and Judge WYNN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy G. Kunstling, for the State.", "George E. Kelly, III for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RONALD JEFFERY\nNo. COA03-1364\n(Filed 21 December 2004)\n1. Appeal and Error \u2014 Alford plea \u2014 bills of information \u2014 outside scope of review\nAn issue concerning the bills of information for an indecent liberties defendant was not considered where defendant entered an Alford plea. Moreover, defendant did not challenge the bills of information at trial, and plain error review applies only to jury instructions or the admissibility of evidence.\n2. Appeal and Error\u2014 failure to object \u2014 sentencing issue\u2014 not waived\nAppellate review of a sentencing issue was not waived by failure to object; an error at sentencing is not an error at trial and no objection is required to preserve the issue for review.\n3. Sentencing\u2014 prior record level \u2014 worksheet alone insufficient \u2014 plea agreement not an implied stipulation\nDefendant\u2019s sentence for indecent liberties was remanded where the State submitted only the prior record level worksheet without supporting documents or other statutorily authorized means of proof. Defendant\u2019s plea agreement did not provide an implied stipulation to a prior record level because there was no reference to the record level or the worksheet in defense counsel\u2019s discussion with the judge. Furthermore, defendant\u2019s plea agreement was not sufficiently specific to rise to the level of a stipulation.\nAppeal by defendant from judgments dated 16 April 2003 by Judge B. Craig Ellis in Superior Court, Scotland County. Heard in the Court of Appeals 30 August 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Amy G. Kunstling, for the State.\nGeorge E. Kelly, III for defendant-appellant." }, "file_name": "0575-01", "first_page_order": 605, "last_page_order": 612 }