{
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    "judges": [
      "Judges BRYANT and McCULLOUGH concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. REGINALD BERNARD WINGATE"
    ],
    "opinions": [
      {
        "text": "HUNTER, Robert C., Judge.\nReginald Bernard Wingate (\u201cdefendant\u201d) appeals from a judgment entered upon his guilty plea to possession with intent to manufacture, sell, or deliver cocaine and having attained the status of a habitual felon. The trial court found defendant to have a prior record level of V, based on 16 prior record level points, and sentenced defendant as a habitual felon to a term of 121 to 155 months imprisonment. Defendant gave notice of appeal in open court.\nDefendant\u2019s sole argument on appeal is that the trial court erred in determining his prior record level because the State failed to offer sufficient proof of his prior convictions and his stipulation to the prior convictions was invalid since the stipulation pertained to a matter of law. \u201cThe prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender\u2019s prior convictions . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(a) (2009). The State bears the burden of proving a defendant\u2019s prior record level by a preponderance of the evidence, and may meet its burden through:\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) (emphasis added).\nWhile a stipulation by a defendant is sufficient to prove the existence of the defendant\u2019s prior convictions, which may be used to determine the defendant\u2019s prior record level for sentencing purposes, the trial court\u2019s assignment of defendant\u2019s prior record level is a question of law. State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007). \u201c \u2018stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.\u2019\u201d State v. Hanton, 175 N.C. App. 250, 253, 623 S.E.2d 600, 603 (2006) (quoting State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683, disc. review denied, 297 N.C. 179, 254 S.E.2d 38 (1979)).\nHere, defendant stipulated that he was previously convicted in North Carolina of one count of conspiracy to sell or deliver cocaine and two counts of selling or delivering cocaine. Defendant stipulated that these convictions were Class G felonies. Defendant now contends that there was insufficient proof to establish whether he had previously been convicted of one count of conspiracy to sell cocaine and two counts of selling cocaine, which are Class G felonies, or whether he was convicted of one count of conspiracy to deliver cocaine and two counts of delivery of cocaine, which are Class H felonies. See N.C. Gen. Stat. \u00a7\u00a7 90-90(l)(d), -95(b)(1), -98 (2009). Defendant asserts that whether he was convicted of delivering cocaine or whether he was convicted of selling cocaine was a question of law, not fact, and, therefore, his stipulation to the Class G felonies was invalid. We disagree and hold that, in this case, the class of felony for which defendant was previously convicted was a question of fact, to which defendant could stipulate, and was not a question of law requiring resolution by the trial court.\nOur courts have repeatedly held that the accuracy of a prior conviction worksheet may be stipulated to pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14(f)(1). See, e.g., State v. Alexander, 359 N.C. 824, 830, 616 S.E.2d 914, 918 (2005) (\u201c[U]nder these circumstances, defense counsel\u2019s statement to the trial court constituted a stipulation of defendant\u2019s prior record level pursuant to N.C.G.S. \u00a7 15A-1340.14(f)(l). Thus, defendant\u2019s sentence was imposed based upon a proper finding of defendant\u2019s prior record level.\u201d); State v. Massey, 195 N.C. App. 423, 429, 672 S.E.2d 696, 699 (2009) (\u201c[Defendant stipulated to the accuracy of the prior conviction worksheet. Although this stipulation does not preclude our de novo appellate review of the trial court\u2019s calculation of defendant\u2019s prior record level, it is sufficient to satisfy the State\u2019s evidentiary burden of proof of this conviction.\u201d); State v. Hurley, 180 N.C. App. 680, 685, 637 S.E.2d 919, 923 (2006) (holding that conduct of defense counsel during sentencing amounted to a stipulation to defendant\u2019s prior convictions). The prior conviction worksheet expressly sets forth the class of offense to which a defendant stipulates and defendant in this case has not cited to any authority, nor have we found any, that requires the trial court to ascertain, as a matter of law, the class of each offense listed.\nDefendant in the case at bar stipulated that the three convictions at issue were Class G felonies. The trial court could, therefore, rely on this factual stipulation in making its calculations and the State\u2019s burden of proof was met. N.C. Gen. Stat. \u00a7 15A-1340.14(f)(1). We note that defendant does not assert that he was, in fact, convicted of one count of conspiring to deliver cocaine and two counts of delivering cocaine, as opposed to one count of conspiring to sell cocaine and two counts of selling cocaine. In other words, defendant does not dispute the accuracy of his prior conviction level or his prior record level.\nIn sum, because defendant\u2019s stipulation in the prior record level worksheet is sufficient proof of his prior convictions, we hold that the trial court properly determined that defendant had a prior record level of V, based on 16 prior record points. Accordingly, we affirm the judgment of the trial court.\nAffirmed.\nJudges BRYANT and McCULLOUGH concur.",
        "type": "majority",
        "author": "HUNTER, Robert C., Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper,' by Special Deputy Attorney General Grady L. Balentine, Jr., for the State.",
      "Kimberly R Hoppinfor defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. REGINALD BERNARD WINGATE\nNo. COA10-1385\n(Filed 19 July 2011)\nSentencing\u2014 calculation of prior record level \u2014 stipulation to prior record level worksheet \u2014 sufficient evidence of prior convictions\nThe trial court did not err in a possession with intent to manufacture, sell, or deliver cocaine case in determining that defendant had a prior record level of V, based on 16 prior record points. Defendant\u2019s stipulation in the prior record level worksheet was sufficient proof of his prior convictions.\nAppeal by defendant from judgment entered 17 May 2010 by Judge William David Lee in Lincoln County Superior Court. Heard in the Court of Appeals 27 April 2011.\nAttorney General Roy Cooper,' by Special Deputy Attorney General Grady L. Balentine, Jr., for the State.\nKimberly R Hoppinfor defendant appellant."
  },
  "file_name": "0419-01",
  "first_page_order": 429,
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