{ "id": 3798415, "name": "STATE OF NORTH CAROLINA v. JAMES DONNELL ALEXANDER", "name_abbreviation": "State v. Alexander", "decision_date": "2005-08-19", "docket_number": "No. 622A04", "first_page": "824", "last_page": "832", "citations": [ { "type": "official", "cite": "359 N.C. 824" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "604 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": -1 }, { "cite": "167 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410755 ], "year": 2004, "opinion_index": -1, "case_paths": [ "/nc-app/167/0079-01" ] }, { "cite": "265 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559906 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0142-01" ] }, { "cite": "404 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172366 ], "weight": 4, "year": 1971, "pin_cites": [ { "page": "260-61" }, { "page": "432" }, { "page": "261" }, { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/us/404/0257-01" ] }, { "cite": "406 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1991, "pin_cites": [ { "page": "855" }, { "page": "854" }, { "page": "855" }, { "page": "855" }, { "page": "855-56" } ], "opinion_index": 0 }, { "cite": "329 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554860 ], "year": 1991, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0683-01" ] }, { "cite": "306 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "455" }, { "page": "579-80" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "324 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "241" }, { "page": "235" }, { "page": "241" }, { "page": "241" }, { "page": "241" }, { "page": "241" } ], "opinion_index": 0 }, { "cite": "312 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756069 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "579-80" }, { "page": "579" }, { "page": "579-80" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0567-01" ] }, { "cite": "342 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697700 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0523-01" ] }, { "cite": "1983 N.C. Sess. Laws 332", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "118 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "619", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "254 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625597 ], "year": 1961, "pin_cites": [ { "page": "234", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0231-01" ] }, { "cite": "604 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "364" }, { "page": "365" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410755 ], "year": 2004, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0079-01" ] } ], "analysis": { "cardinality": 790, "char_count": 19964, "ocr_confidence": 0.753, "pagerank": { "raw": 7.205445194871362e-07, "percentile": 0.9676116252337491 }, "sha256": "5414150b089e51aba82686d665f90d98edbac884b35c74c057c487c46213f45f", "simhash": "1:e32de00b7f22ddf6", "word_count": 3185 }, "last_updated": "2023-07-14T16:11:02.499353+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JAMES DONNELL ALEXANDER" ], "opinions": [ { "text": "BRADY, Justice.\nThe sole issue before this Court is whether the trial court properly calculated defendant James Donnell Alexander\u2019s prior record level in sentencing defendant to a minimum term of imprisonment of 80 months to a maximum term of 105 months. We find that, pursuant to N.C.G.S. \u00a7 15A-1340.13(b) and 15A-1340.14(f), defendant stipulated to his prior record level and that the trial judge used a reliable method to calculate defendant\u2019s prior record level. Therefore, defendant\u2019s case is remanded to the North Carolina Court of Appeals for consideration of the remaining assignments of error.\nFACTUAL AND PROCEDURAL BACKGROUND\nOn 5 February 2003, defendant was arrested, pursuant to an arrest warrant, by officers with the Elizabeth City Police Department on the charge of assault with a deadly weapon with intent to kill inflicting serious injury, a Class C felony committed on 28 January 2003. This matter was later heard before Judge Jerry R. Tillett at the 8 September 2003 Criminal Session of Pasquotank County Superior Court. Defendant entered a plea of guilty to the assault charge as part of a plea arrangement with the State. As a result, the following exchange occurred between defendant and the trial court:\nThe Court: I understand you have a plea bargain, the terms and conditions of which are that you will plead guilty to this charge and the State will agree that you will be sentenced to the minimum sentence of \u2014 minimum of 80 months and a maximum of 105 months?\nThe Defendant: Yes.\nThe Court: Is this correct as being your full plea?\nThe Defendant: Yes, sir.\nThe Court: Do you now personally accept this arrangement?\nThe Defendant: Yes.\nThe Court: Other than the plea arrangement between you and the prosecutor has anyone made you any promises or threatened you in any way to cause you to enter this plea against your wishes?\nThe Defendant: No.\nThe Court: Do you enter this plea of your own free will, fully understanding what you are doing?\nThe Defendant: Yes, sir.\nThe Court: Do you have any questions?\nThe Defendant: No, sir.\nAfter this colloquoy, defendant stipulated to a factual basis for the plea, in which the State summarized the evidence it would have presented had the case proceeded to trial. The trial court then asked defendant\u2019s attorney whether he had anything \u201cto say\u201d with respect to sentencing. Defendant\u2019s attorney related a brief background of defendant, concluding by remarking that defendant \u201cis a single man and up until this particular case he had no felony convictions, as you can see from his worksheet.\u201d\nThe worksheet referenced by defendant\u2019s attorney was entitled \u201cWorksheet Prior Record Level for Felony Sentencing and Prior Conviction Level for Misdemeanor Sentencing (Structured Sentencing),\u201d AOC-CR-600, Rev. 7/01. This worksheet itemized five prior misdemeanor convictions: three Class 2 misdemeanors, one Class 3 misdemeanor, and one Class A1 misdemeanor, the only misdemeanor carrying with it any implications for the calculation of defendant\u2019s prior record level. Under the portion of the worksheet titled \u201cScoring Prior Record/Felony Sentencing,\u201d a number one was placed next to \u201cPrior Class Al or 1 Misdemeanor Conviction,\u201d which carried with it a single \u201cpoint.\u201d This single point reflected defendant\u2019s \u201cPrior Record Level\u201d of II. We note that defendant does not challenge the accuracy of the information contained in this worksheet.\nAfter calculating defendant\u2019s prior record level at II, the trial judge, consistent with the plea arrangement between the State and defendant, sentenced defendant to a minimum term of imprisonment of 80 months and a maximum term of 105 months. In so doing, the trial judge stated, \u201cThe sentence is imposed also pursuant to a plea arrangement as to sentencing and the sentence is within the presumptive range.\u201d Moreover, in completing the \u201cJudgment and Commitment Active Punishment Felony\u201d form, AOC-CR-601, Rev. 3/02, the trial judge marked the box indicating that \u201cThe Court . . . makes no written findings because the prison term imposed is . . . within the presumptive range of sentences under G.S. 15A-1340.17(c).\u201d\nAfter indicating that the sentence was being imposed pursuant to a plea arrangement and that the sentence was \u201cwithin the presumptive range,\u201d the trial judge asked defense counsel if he had seen the \u201crestitution worksheet.\u201d Defense counsel said, \u201cNo, Your Honor, I haven\u2019t.\u201d The trial court, however, then asked defense counsel whether he would \u201c[stipulate to the worksheet\u201d to which defense counsel responded \u201cYes, sir.\u201d The trial judge recommended that defendant pay the restitution and court-appointed attorney\u2019s fees \u201cshown on the worksheet which has been stipulated and agreed to by the defendant as [a] condition of post-release supervision.\u201d\nDefendant appealed, claiming inter alia, that the trial court erred in calculating his prior record level and sentencing him accordingly \u201cbecause the [S]tate failed to prove his prior conviction.\u201d A majority of the Court of Appeals granted defendant a new sentencing hearing, finding that defense counsel\u2019s statement did not constitute a stipulation with respect to defendant\u2019s prior record level and \u201cdefendant\u2019s stipulation to an 80-105 month sentence, standing alone, does not render the issue of whether the State proved defendant\u2019s prior conviction moot.\u201d State v. Alexander, 167 N.C. App. at 84, 604 S.E.2d at 364. Due to the majority\u2019s resolution of the issue of defendant\u2019s prior record level, the Court of Appeals did not reach defendant\u2019s remaining issues on appeal. However, Judge Timmons-Goodson dissented, concluding that \u201cdefendant stipulated to his prior record level . . . [thus] the trial court did not err in sentencing defendant.\u201d Id. at 85, 604 S.E.2d at 365. The State entered notice of appeal with this Court, and oral arguments were heard on 17 May 2005.\nANALYSIS\nUnder the Structured Sentencing Act, before imposing a felony sentence, the sentencing judge must determine a defendant\u2019s prior record level pursuant to N.C.G.S. \u00a7 15A-1340.14. N.C.G.S. \u00a7 15A-1340.13(b) (2003). A prior conviction, in turn, can 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.\nId. \u00a7 15A-1340.14(f) (2003). \u201cThe State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists.\u201d Id. Defendant argues that the State failed to carry this burden because \u201cthe [S]tate offered no court records or other official records in support of its assertion that defendant had one prior Class A1 misdemeanor conviction. In fact, the only document presented at sentencing was the prior record level worksheet.\u201d\nThere is no doubt that a mere worksheet, standing alone, is insufficient to adequately establish a defendant\u2019s prior record level. On appeal, the State, however, argues that the aforementioned exchange between the trial judge and defense counsel constituted a stipulation; thus, defendant is not entitled to a new sentencing hearing. We agree that defendant stipulated to his prior record level pursuant to N.C.G.S. \u00a7 15A-1340.14(f)(1) and also find that the trial court calculated defendant\u2019s prior record level based upon a reliable method, as authorized by N.C.G.S. \u00a7 15A-1340.14(f)(4).\n\u201c \u2018While 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. Silence, under some circumstances, may be deemed assent....\u2019\u201d State v. Powell, 254 N.C. 231, 234, 118 S.E.2d 617, 619 (1961) (citation omitted), superseded by statute, Safe Roads Act of 1983, ch. 435, sec. 29, 1983 N.C. Sess. Laws 332, 354-60. (codified as amended at N.C.G.S. \u00a7 20-179(a) (2003)) (requiring the prosecutor to \u201cmake all feasible efforts to secure the defendant\u2019s full record of traffic convictions, and .. . present to the judge that record for consideration in the [sentencing] hearing\u201d), as recognized in State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986).\nIn State v. Albert, this Court further refined the parameters of a stipulation, finding that the prosecution\u2019s statement to the trial court constituted a stipulation to defendant\u2019s lack of a prior criminal record. 312 N.C. 567, 579-80, 324 S.E.2d 233, 241 (1985). In Albert, the defendant and two co-defendants were tried and convicted of second-degree murder. Id. at 569, 324 S.E.2d at 235. During sentencing, the trial court asked the prosecution, \u201c \u2018[D]o any of them have a prior criminal record?\u2019 \u201d The prosecutor responded, \u201c \u2018[0]nly Mr. Dearen. . . .\u2019 \u201d Id. at 579, 324 S.E.2d at 241. Relying on State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983), this Court stated in Albert that \u201cevidence is credible as a matter of law when the \u2018non-movant establishes proponent\u2019s case by admitting the truth of the basic facts upon which the claim of the proponent rests.\u2019 \u201d Albert, 312 N.C. at 579, 324 S.E.2d at 241 (quoting Jones, 309 N.C. at 220, 306 S.E.2d at 455) (alteration in original). The Court held that the trial court improperly failed to find this factor in mitigation with respect to the defendant because the prosecution had stipulated that of the three co-defendants, only defendant Dearen had a criminal record. Id. at 579-80, 324 S.E.2d at 241.\nMore recently, this Court affirmed a defendant\u2019s sentence, concluding that \u201cthe record shows the defendant stipulated that the prosecuting attorney could state the evidence.\u201d State v. Mullican, 329 N.C. 683, 685, 406 S.E.2d 854, 855 (1991). In Mullican, as part of a plea agreement, the defendant entered a plea of guilty to attempted first-degree sexual offense in exchange for the State\u2019s dismissal of a charge of taking indecent liberties with a child. Id. at 684, 406 S.E.2d at 854. The trial court found two aggravating factors and three mitigating factors, but found that the aggravating factors outweighed the mitigating factors and sentenced defendant to fourteen years imprisonment, which was in the aggravated range. Id. at 684-85, 406 S.E.2d at 855. The defendant appealed to the Court of Appeals claiming that there was insufficient evidence to support the finding of the aggravating factors. Id. at 685, 406 S.E.2d at 855. However, a majority of the Court of Appeals affirmed the defendant\u2019s conviction. Id.\nThe defendant appealed and this Court affirmed the defendant\u2019s conviction, finding that during sentencing, the defendant stipulated to the prosecuting attorney\u2019s statement of what the evidence would show. Id. In so holding, this Court reasoned that:\nWhen the prosecuting attorney said he would summarize the State\u2019s evidence with the permission of the defendant, this was an invitation to the defendant to object if he had not consented. He did not do so. The defendant then said he too would like to present his evidence with the consent of the State. We can infer from this that the defendant had consented to the prosecuting attorney\u2019s making the statement. The defendant\u2019s attorney then made a statement which was consistent with the statement of the prosecuting attorney and concluded it by saying, \u201c[o]f course that is not any excuse for his doing this.\u201d This is very nearly an admission of what the State was attempting to prove. We hold that the statement of the prosecuting attorney considered with the statement of the defendant\u2019s attorney shows that there was a stipulation that the prosecuting attorney could state what the evidence would show.\nId. at 686, 406 S.E.2d at 855-56.\nBoth Albert and Mullican establish that, during sentencing, a defendant need not make an affirmative statement to stipulate to his or her prior record level or to the State\u2019s summation of the facts, particularly if defense counsel had an opportunity to object to the stipulation in question but failed to do so. Because we find this case sufficiently similar to both Albert and Mullican, we reverse the Court of Appeals.\nHere, defense counsel did not expressly state that he had seen the prior record level worksheet; however, we find it telling that he specifically directed the trial court to refer to the worksheet to establish that defendant had no prior felony convictions. Defense counsel specifically stated that \u201cup until this particular case he had no felony convictions, as you can see from his worksheet.\u201d This statement indicates not only that defense counsel was cognizant of the contents of the worksheet, but also that he had no objections to it.\nDefendant, by arguing that his trial counsel did not stipulate to his previous misdemeanor conviction, simply seeks to have his cake and eat it too. If defense counsel\u2019s affirmative statement with respect to defendant\u2019s lack of previous felony convictions was proper, then so too was the implicit statement that defendant\u2019s previous misdemeanor convictions were properly reflected on the worksheet in question. Moreover, this Court\u2019s previous decisions make it clear that counsel need not affirmatively state what a defendant\u2019s prior record level is for a stipulation with respect to that defendant\u2019s prior record level to occur. See Albert, 312 N.C. at 579-80, 324 S.E.2d at 241. Therefore, we find that, under 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)(1). Thus, defendant\u2019s sentence was imposed based upon a proper finding of defendant\u2019s prior record level.\nMoreover, as noted above, a defendant\u2019s prior record level can also be established by \u201c[a]ny other method found by the Court to be reliable.\u201d N.C.G.S. \u00a7 15A-1340.14(f)(4). In the instant case, defense counsel specifically directed the trial judge to rely on the prior record level worksheet in question. The trial court not only considered defense counsel\u2019s statement that \u201cup until this particular case [defendant] had no felony convictions, as you can see from his worksheet,\u201d but as a result of defense counsel\u2019s representation, also considered defendant\u2019s prior record level worksheet.\nAdditionally, defendant entered into a plea arrangement with the State to plead guilty in exchange for a sentence of 80 to 105 months imprisonment, which constituted the minimum and maximum term of imprisonment in the presumptive range for a defendant with a prior record level of II being sentenced for a Class C felony. Generally, a plea arrangement or bargain is \u201c[a] negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu[ally] a more lenient sentence or a dismissal of the other charges.\u201d Black\u2019s Law' Dictionary 1173 (7th ed. 1999); see generally Santobello v. New York, 404 U.S. 257, 260-61, 30 L. Ed. 2d 427, 432 (1971); State v. Collins, 300 N.C. 142, 265 S.E.2d 172 (1980).\nPlea agreements or plea bargains are an integral part of the criminal justice system in North Carolina; during the 2002-03 fiscal year, out of 72,536 criminal matters that survived dismissal, only 2,887 criminal cases went to trial. N.C. Administrative Office of the Courts, North Carolina Courts FY 2002-2003, Statistical and Operational Summary of the Judicial Branch of Government 46. This means that the remaining 69,649 criminal cases ended in a plea bargain, representing over 96% of the criminal cases that survived dismissal during that particular year. Id. As the United States Supreme Court has stated:\n[Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.\nSantobello, 404 U.S. at 261, 30 L. Ed. 2d at 432. The economically sound and expeditious practice of plea bargaining should be encouraged, with both sides receiving the benefit of that bargain. In this case, the defendant \u201cbargained\u201d for the State\u2019s recommendation of a lesser term of imprisonment, a minimum of 80 months to a maximum of 105 months, as opposed to an aggravated term of imprisonment.\nBefore accepting defendant\u2019s plea of guilty, the trial judge asked defendant whether he understood that he was \u201cpleading guilty to the felony offense of assault with a deadly weapon with intent to kill inflicting serious injury for which [he] could be imprisoned up to 261 months with the exception of limitation to that sentence required by our law and any plea bargain?\u201d to which defendant replied, \u201cYes, sir.\u201d Thus, the trial court was aware that defendant had \u201cbargained\u201d for the State\u2019s recommendation of a lesser term of imprisonment, a minimum of 80 months to a maximum of 105 months, as opposed to an aggravated term of imprisonment.\nTherefore, the trial court\u2019s methodology included relying on defense counsel\u2019s statements regarding defendant\u2019s prior record level, defense counsel\u2019s invitation to consult defendant\u2019s prior record level worksheet, and the trial judge\u2019s knowledge of the plea agreement between defendant and the State. Accordingly, we find that the trial court\u2019s calculation of defendant\u2019s prior record level was based upon a method \u201cfound by the court to be reliable.\u201d We cannot find that defendant\u2019s prior record level was improperly calculated by the trial court.\nCONCLUSION\nFor the foregoing reasons, we hold that the State established defendant\u2019s prior record level by a preponderance of the evidence; thus, the trial court properly sentenced defendant. Accordingly, the decision of the Court of Appeals is reversed and this case is remanded to that court for consideration of the remainder of defendant\u2019s assignments of error not previously addressed.\nREVERSED and REMANDED.", "type": "majority", "author": "BRADY, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Christopher W. Brooks, Assistant Attorney General, for the State-appellant.", "Staples S. Hughes, Appellate Defender, by Kelly D. Miller, Assistant Appellate Defender, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES DONNELL ALEXANDER\nNo. 622A04\n(Filed 19 August 2005)\nSentencing\u2014 calculation of prior record level \u2014 method\nDefendant\u2019s prior record level was properly calculated during sentencing for assault where the court relied on defense counsel\u2019s statements regarding defendant\u2019s prior record level, defense counsel\u2019s invitation to the court to consult defendant\u2019s prior record level worksheet, and the trial judge\u2019s knowledge of the plea agreement between defendant and the State. While a worksheet standing alone is not sufficient to establish a defendant\u2019s prior record level, a defendant need not make an affirmative statement to stipulate to his or her prior record level or to the State\u2019s summation of the facts, particularly if defense counsel had an opportunity to object to the stipulation in question but failed to do so. The trial judge here used a reliable method to calculate defendant\u2019s prior record level. N.C.G.S. \u00a7 15A-1340.14(f)(4).\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 167 N.C. App. 79, 604 S.E.2d 361 (2004), finding error in the judgment and commitment entered 8 September 2003 by Judge Jerry R. Tillett in Superior Court, Pasquotank County and ordering a new sentencing hearing. Heard in the Supreme Court 17 May 2005.\nRoy Cooper, Attorney General, by Christopher W. Brooks, Assistant Attorney General, for the State-appellant.\nStaples S. Hughes, Appellate Defender, by Kelly D. Miller, Assistant Appellate Defender, for defendant-appellee." }, "file_name": "0824-01", "first_page_order": 862, "last_page_order": 870 }