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    "judges": [
      "Chief Judge MARTIN and Judge ERVIN concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. CHRISTOPHER BUDDINGTON, Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nDefendant was indicted for possessing a firearm as a felon. Defendant filed a motion to dismiss which the trial court granted. Because defendant failed to present any evidence in support of his motion to dismiss the indictment on an as-applied constitutional challenge, the trial court erred in granting the motion to dismiss, and we reverse.\nI. Background\nOn or about 7 May 2007, defendant was indicted for possession of a firearm by a felon under N.C. Gen. Stat. \u00a7 14-415.1. On 18 September 2009, defendant filed an unverified motion to dismiss the possession of a firearm by a felon charge claiming, inter alia, that pursuant to Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009), N.C. Gen. Stat. \u00a7 14-415.1 was unconstitutional as applied to him. Defendant\u2019s motion discusses, inter alia, his prior felony of maintaining a vehicle/dwelling/place to keep controlled substances pursuant to N.C. Gen. Stat. \u00a7 90-108, his completion of probation, the restoration of his rights to possess a firearm, and how the subsequent amendments to N.C. Gen. Stat. \u00a7 14-415.1 affected his right to possess a firearm. On 5 October 2009, the trial court ordered that the indictment against defendant be dismissed because \u201cN.C. Gen. Stat. \u00a7 14-415.1 as amended is not a reasonable regulation, as applied to the Defendant, and that applying said statute to the Defendant would violate his constitutional rights under Article I, Section 30 of the North Carolina Constitution.\u201d The State appeals.\nII. No Evidence Presented at Hearing\nThe State first argues that \u201cthe findings of fact are not supported by competent evidence because there was no evidence presented.\u201d (Original in all caps.) The State contends that \u201c[n]o evidence was presented at the hearing on defendant\u2019s motion to dismiss and no stipulations were agreed to, and no documentary or physical evidence was marked, offered or admitted into evidence except defendant\u2019s motion for dismissal.\u201d\nThough defendant filed a motion to dismiss, his motion is not based on a challenge to the sufficiency of the evidence. Instead, defendant\u2019s motion to dismiss is based upon a constitutional claim. \u201cThe standard of review for questions concerning constitutional rights is de novo. Furthermore, when considering the constitutionality of a statute or act there is a presumption in favor of constitutionality, and all doubts must be resolved in favor of the act.\u201d Row v. Row, 185 N.C. App. 450, 454-55, 650 S.E.2d 1, 4 (2007) (citation, quotation marks, and ellipses omitted), disc. review denied, 362 N.C. 238, 659 S.E.2d 741, cert. denied,-U.S.-, 172 L. Ed. 2d 39 (2008).\nWe agree with the State that \u201cno evidence was presented at the hearing[.]\u201d The trial court\u2019s order provides that it is \u201c[b]ased upon the records of the Clerk of Superior Court for Rockingham County, the motions filed in this matter, and the statements of counsel[.]\u201d In the appellate record before us there are no \u201crecords of the Clerk of Superior Court for Rockingham County[,]\u201d and according to the hearing transcript, no records were ever submitted to the trial court or admitted as evidence. Furthermore, the only motion we are aware of is defendant\u2019s unverified motion to dismiss. Defendant also did not file an affidavit in support of his motion to dismiss. Therefore, in considering what was before the trial court, we have only defendant\u2019s unverified motion to dismiss and \u201cthe statements of counsel[.]\u201d However, neither unverified motions nor counsels\u2019 statements are evidence. See State v. Roache, 358 N.C. 243, 289, 595 S.E.2d 381, 411 (2004) (\u201c[I]t is axiomatic that the arguments of counsel are not evidence.\u201d (citation and quotation marks omitted)); Acceptance Corp. v. Samuels, 11 N.C. App. 504, 511, 181 S.E.2d 794, 798 (1971) (\u201cThe unverified motion did not prove the matters alleged therein and is not evidence thereof.\u201d)\nDefendant contends that \u201cthe trial court\u2019s order rested on an adequate factual foundation as the parties stipulated to the evidence.\u201d (Original in all caps.) During the hearing, the attorneys discussed various matters, including: defendant\u2019s prior convictions; sentencing; how the case was to be tried in front of the jury; defendant\u2019s contentions of how Britt required that defendant\u2019s case be dismissed because N.C. Gen. Stat. \u00a7 14-415.1 was unconstitutional as applied to him; and the amendments to N.C. Gen. Stat. \u00a7 14-415.1 and how they had affected defendant\u2019s right to possess a firearm. After all of these arguments and discussions, on page 14 of the transcript the trial court then asked the State, \u201cUh-huh. All right. On these facts, where was he when the \u2014 can y\u2019all stipulate as to what the facts are, as to where he was when the \u2014 if you don\u2019t agree with it, Mr. Berger, [State\u2019s attorney,] let me know. Mr. Berger?\u201d Mr. Berger then went on to state the specifics of defendant\u2019s pending charge; defendant\u2019s counsel did not stipulate to or indicate approval of the State\u2019s statements. Then both attorneys continued to argue about various matters, including the applicability of Britt to defendant\u2019s case. The trial court then ruled in favor of defendant.\n\u201cA stipulation is a judicial admission, dispensing with proof, recognized and enforced by the courts as a substitute for legal proof.\u201d Realtors, Inc. v. Kinard 45 N.C. App. 545, 546, 263 S.E.2d 38, 39 (1980). \u201cWhile 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 State v. Alexander, 359 N.C. 824, 828, 616 S.E.2d 914, 917 (2005) (citation and quotation marks omitted). In order for defendant to prevail in a motion to dismiss through an as-applied constitutional challenge to N.C. Gen. Stat. \u00a7 14-415.1, he must present evidence which would allow the trial court to make findings of fact regarding\n(1) the type of felony convictions, particularly whether they \u201cinvolved violence or the threat of violence,\u201d (2) the remoteness in time of the felony convictions; (3) the felon\u2019s history of \u201clawabiding conduct since the crime,\u201d (4) the felon\u2019s history of \u201cresponsible, lawful firearm possession\u201d during a time period when possession of firearms was not prohibited, and (5) the felon\u2019s \u201cassiduous and proactive compliance with the 2004 amendment.\u201d\nState v. Whitaker,-N.C. App.-,-, 689 S.E.2d 395, 404 (2009) (brackets omitted) (citing Britt at 550, 681 S.E.2d at 323), aff\u2019d, 364 N.C. 404, 700 S.E.2d 215 (2010).\nBritt therefore requires presentation of some evidence upon which the trial court could make findings of fact regarding the factors. See id. Certainly, defendant\u2019s complete criminal record, both prior to and after his felony conviction up to the time of the charge for possession of a firearm by a felon, could show \u201cthe type of felony convictions\u201d and their \u201cremoteness in time\u201d as well as defendant\u2019s \u201chistory of \u2018lawabiding conduct since the crime[.]\u2019 \u201d Id. Evidence as to defendant\u2019s criminal record or the other factors could also be presented by affidavits and witness testimony. Defendant and the State could also enter into stipulations as to these facts.\nHere, our record does not demonstrate that defendant\u2019s criminal record was submitted to the trial court, although counsel for both defendant and the State discuss various convictions during their arguments. Without any evidence or any clear stipulation to facts which, at the very least, address the five factors in Britt, the trial court could not have properly granted defendant\u2019s motion to dismiss. See id. While the State through its failure to object, failure to correct, and/or silence may \u00e1rguably have stipulated to some facts presented by defendant, the State certainly did not stipulate to all of the facts as stated by defendant in the transcript. State v. Hurley, 180 N.C. App. 680, 684, 637 S.E.2d 919, 923 (2006) (\u201cStipulations do not require affirmative statements and silence may be deemed assent in some circumstances, particularly if the defendant had an opportunity to object, yet failed to do so.\u201d), disc. review denied, 361 N.C. 433, 649 S.E.2d 394 (2007). Furthermore, the terms of any stipulations which may have occurred at the hearing were not \u201cdefinite and certain.\u201d Alexander at 828, 616 S.E.2d at 917. In carefully considering the entire transcript, we have been unable to ascertain exactly which statements by defendant\u2019s counsel the State may have \u201cstipulated\u201d to, since, at times during the hearing, the State argued specific facts of its own and disagreed with defendant\u2019s characterization of the facts as applicable to the Britt factors. Without a \u201cdefinite and certain\u201d stipulation to the facts pertinent to the Britt factors, id., and without any other evidence, the trial court had no basis for its findings of fact. Without evidence the trial court could not have found N.C. Gen. Stat. \u00a7 14-415.1 unconstitutional as applied to defendant. Whitaker at-, 689 S.E.2d at 404. Therefore, we agree with the State\u2019s argument that the trial court erroneously dismissed the indictment against defendant.\nIII. Conclusion\nAs the trial court erroneously dismissed the indictment, we reverse. As we are reversing the order granting the motion to dismiss, we need not address the State\u2019s second argument on appeal.\nREVERSED.\nChief Judge MARTIN and Judge ERVIN concur.\n. We note that the legislature has now provided a way for qualified individuals to petition the court to have their right to possess a firearm restored pursuant to N.C. Gen. Stat. \u00a7 14-415.4. See 2010 N.C. Sess. Laws 108 \u00a7 1. N.C. Gen. Stat. \u00a7 14-415.4 \u201cbecomes effective February 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.\u201d 2010 N.C. Sess. Laws 108 \u00a7 7.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General Joan M. Cunningham, for the State.",
      "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHRISTOPHER BUDDINGTON, Defendant\nNo. COA10-286\n(Filed 1 March 2011)\nFirearms and Other Weapons\u2014 possession by felon \u2014 as applied constitutional challenge \u2014 no evidence or stipulations\nThe trial court erroneously dismissed an indictment for possession of a firearm by a felon where defendant filed an unverified motion to dismiss on constitutional grounds but no evidence was presented at the hearing and there were no clear stipulations. In order for defendant to prevail through an as-applied constitutional challenge to N.C.G.S. \u00a7 14-415.1, he must present evidence which would allow the trial court to make findings about the factors in Britt v. State, 363 N.C. 546.\nAppeal by the State from order entered 5 October 2009 by Judge L. Todd Burke in Superior Court, Rockingham County. Heard in the Court of Appeals 13 September 2010.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Joan M. Cunningham, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellee."
  },
  "file_name": "0252-01",
  "first_page_order": 260,
  "last_page_order": 264
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