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    "judges": [
      "Judges STEPHENS and HUNTER, JR. concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ALVIN DWIGHT FAIR"
    ],
    "opinions": [
      {
        "text": "STEELMAN, Judge.\nUnlike a stipulation to the existence of a prior conviction, which is binding on appeal, the trial court\u2019s determination as to whether a conviction may be counted for felony sentencing purposes is reviewable on appeal.\nI. Factual and Procedural Background\nDefendant was found guilty by a jury of second degree murder. At the sentencing hearing, the prosecutor and defense counsel stipulated in writing to the defendant\u2019s prior convictions and his record level. At the sentencing hearing, the following exchanges took place:\n[Prosecutor]: . . . The only matter in sentencing, I have prepared a prior record worksheet on Mr. Fair and find that he has nine prior points for sentencing making him a record level four. Does defendant stipulate to that?\n[Defense Attorney]: Yes.\n[Prosecutor]: Your Honor, the defendant\u2019s attorney has signed that stipulation ....\nThe Court: And have you had the opportunity to look over the worksheet that has been presented to the Court by the state?\n[Defense Attorney]: Yes.\nThe Court: Do you agree and stipulate that he has nine prior record points and is a prior record level four?\n[Defense Attorney]: I do. We did. mark out the driving while license revoked charge on the back with the district attorney\u2019s permission, and I don\u2019t think that affects it, but we did do that.\nThe Court: So this is a B-2 felony and it is a prior record level four?\n[Defense Attorney]: Yes, sir.\n[Prosecutor]: That\u2019s correct, Your Honor.\nThe Court: Thank you very much.\nBased upon these stipulations, the trial court held that defendant was a Level IV for felony sentencing purposes based upon nine (9) prior record points. Defendant appeals.\nII. Stipulations Under Structured Sentencing\nDefendant argues that the trial court erred in determining his sentencing level. We agree.\nA. Proof of Convictions Under Structured Sentencing\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) provides for the methods of proof of a defendant\u2019s prior convictions:\nProof of Prior Convictions. \u2014 A prior conviction shall be proved 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.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) (2009).\nIn this case, counsel stipulated in writing, and orally to the court, to the following convictions of defendant:\nThe stipulation also covered the point scoring of these convictions under Section I of the Worksheet and the record level determinations under Section II of the Worksheet.\nB. Appealability of Trial Court\u2019s Determination of Sentencing Level\nThe question presented is to what extent defendant is bound by the stipulations made before the trial court on appeal. Under the provisions of N.C. Gen. Stat. \u00a7 15A-1340.14(f) a prior conviction may be established by stipulation. The existence of the conviction is an issue of fact. State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604 (2006). Defendant is bound on appeal by any stipulation as to the existence of a conviction.\nHowever, even though defendant stipulated to his prior record level on three separate occasions, our cases have held that whether defendant\u2019s convictions can be counted towards sentencing points for determination of his structured sentencing level is a conclusion of law, fully reviewable by this Court on appeal. State v. Williams, 200 N.C. App. 767, 771, 684 S.E.2d 898, 901 (2009); State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009); State v. Mack, 188 N.C. App. 365, 380, 656 S.E.2d 1, 12 (2008); State v. Goodwin, 190 N.C. App. 570, 576, 661 S.E.2d 46, 50 (2008); State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007). We are bound by the holdings in these cases. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).\nC. Multiple Convictions in a Single Week of Court\nN.C. Gen. Stat. \u00a7 15A-1340.14(d) provides:\nMultiple Prior Convictions Obtained in One Court Week. \u2014 -For purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used. If an offender is convicted of more than one offense in a single session of district court, only one of the convictions is used.\nN.C. Gen. Stat. \u00a7 15A-1340.14(d) (2009).\nIn the instant case, the convictions for two of the felonies listed occurred on 24 March 1999. Under subsection (d) only one of these could be counted toward defendant\u2019s point total. The removal of one of these felony convictions places defendant as a Level III rather than a Level IV. The trial court erred in determining defendant\u2019s sentencing level. Goodwin, 190 N.C. App. at 577, 661 S.E.2d at 51. This matter must be remanded for resentencing.\nREMANDED FOR RESENTENCING.\nJudges STEPHENS and HUNTER, JR. concur.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Kevin Anderson, for the State.",
      "Jarvis John Edgerton, IV, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ALVIN DWIGHT FAIR\nNo. COA09-1381\n(Filed 6 July 2010)\nSentencing\u2014 prior record level \u2014 stipulation\u2014determination of whether conviction counted for felony sentencing purposes reviewable on appeal\nThe trial court erred in a second-degree murder case by determining defendant\u2019s prior sentencing level as Level IV instead of Level III. Although defendant stipulated to his prior record level on three separate occasions, the trial court\u2019s determination as to whether a conviction may be counted for felony sentencing purposes is reviewable on appeal. In the instant case, two felonies occurred within a single week and only one could be counted toward defendant\u2019s point total as provided in N.C.G.S. \u00a7 15A-1340.14(d).\nAppeal by defendant from judgment entered 19 March 2009 by Judge J. Gentry Caudill in Lincoln County Superior Court. Heard in the Court of Appeals 9 June 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Kevin Anderson, for the State.\nJarvis John Edgerton, IV, for defendant-appellant."
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  "file_name": "0315-01",
  "first_page_order": 343,
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