{
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  "name": "STATE OF NORTH CAROLINA v. NORA JEAN PALMATEER",
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    "judges": [
      "Judges BRYANT and ELMORE concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. NORA JEAN PALMATEER"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nPursuant to a plea agreement, Nora Jean Palmateer (Defendant) pleaded guilty on 9 June 2005 to forty-nine counts of embezzlement. Defendant\u2019s convictions were consolidated into seven judgments, and she was sentenced to five consecutive terms of ten to twelve months in prison and two concurrent terms of ten to twelve months in prison. The two concurrent terms were suspended and Defendant was placed on supervised probation for sixty months, to begin at the expiration of her prison terms. As a condition of probation, Defendant was ordered to pay restitution in the amount of $15,089.09. Defendant appeals.\nCounsel appointed to represent Defendant on appeal has been unable to identify any issue with sufficient merit to support a meaningful argument for relief on appeal and asks that this Court conduct its own review of the record for possible prejudicial error. Counsel has also shown to the satisfaction of this Court that he has complied with the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh\u2019g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), by advising Defendant of her right to file written arguments with this Court and by providing her with the documents necessary for her to do so.\nDefendant has not filed any written arguments on her own behalf with this Court and a reasonable time in which she could have done so has passed. However, although Defendant\u2019s counsel does not make any arguments on appeal, he does raise the issue of Defendant\u2019s prior record level calculation as an issue that arguably might have merit on appeal. Specifically, counsel raises the question of whether there was an effective stipulation to Defendant\u2019s prior record level.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) (2005) provides that \u201c[t]he 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.\u201d A defendant\u2019s prior conviction may be proven by any 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.; see also State v. Riley, 159 N.C. App. 546, 555-56, 583 S.E.2d 379, 386 (2003).\nOn Defendant\u2019s prior record level worksheet, the State and defense counsel entered into a stipulation regarding the contents of the worksheet. Included on the worksheet were several out-of-state convictions, the date of these convictions, and their classification. N.C. Gen. Stat. \u00a7 15A-1340.14(e) (2005) governs the classification of prior convictions from out-of-state, based on whether the out-of-state conviction is \u201csubstantially similar\u201d to an offense in North Carolina. In this case, the parties stipulated that the information on the worksheet was accurate, \u201cincluding the classification and points assigned to any out-of-state convictions[.]\u201d Based on this stipulation, the trial court found that Defendant had six points for a prior record level of III.\nHowever, our Court recently held in State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006), that \u201cthe question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court.\u201d Id. at 255, 623 S.E.2d at 604. Our Court further stated that \u201c \u2018[stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.\u2019 \u201d Id. at 253, 623 S.E.2d at 603 (quoting State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (1979)). Although this Court did not explicitly state that a defendant could not stipulate to the substantial similarity of out-of-state convictions, the Court did conclude that this Court\u2019s prior statement in State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000), that a defendant might stipulate to this question, was \u201cnon-binding dicta.\u201d Hanton, 175 N.C. App. at 254, 623 S.E.2d at 603. We are bound by prior decisions of a panel of this Court. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Thus, we conclude that the stipulation in the worksheet regarding Defendant\u2019s out-of-state convictions was ineffective. See Hanton, 175 N.C. App. at 254, 623 S.E.2d at 603-04. Accordingly, we remand for resentencing.\nRemanded for resentencing.\nJudges BRYANT and ELMORE concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General M. Janette Soles, for the State.",
      "McAfee Law, P.A., by Robert J. McAfee, for Defendant-Appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. NORA JEAN PALMATEER\nNo. COA05-1450\n(Filed 19 September 2006)\nSentencing\u2014 invalid stipulation to out-of-state conviction\u2014 question of law\nThe trial court erred in an embezzlement sentencing proceeding based on an invalid stipulation in the worksheet regarding defendant\u2019s out-of-state convictions, and the case is remanded for resentencing, because: (1) the question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court; and (2) stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.\nAppeal by Defendant from judgments entered 9 June 2005 by Judge Clifton W. Everett, Jr. in Superior Court, Pitt County. Heard in the Court of Appeals 23 August 2006.\nAttorney General Roy Cooper, by Assistant Attorney General M. Janette Soles, for the State.\nMcAfee Law, P.A., by Robert J. McAfee, for Defendant-Appellant."
  },
  "file_name": "0579-01",
  "first_page_order": 611,
  "last_page_order": 614
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