State v. Hines ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-793
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Wilson County
No. 12 CRS 52283
TYQUAN LEE HINES
Appeal by defendant from judgment entered 23 January 2013
by Judge Milton F. Fitch, Jr. in Wilson County Superior Court.
Heard in the Court of Appeals 30 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryn H. Shields, for the State.
James W. Carter for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Defendant Tyquan Lee Hines appeals from a judgment entered
pursuant to his guilty plea to selling or delivering marijuana.
The trial court found defendant had a prior record level of VI,
based on 19 prior record points, and sentenced defendant to a
term of 20 to 24 months imprisonment. Defendant filed written
notice of appeal on 1 February 2013.
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We first note that defendant’s notice of appeal does not
include a certificate of service and thus does not conform to
Rule 4 of our Rules of Appellate Procedure. N.C. R. App. P.
4(a)(2) (providing that written notice of appeal must be served
upon all adverse parties). Failure to comply with Rule 4
constitutes a jurisdictional default, which “precludes the
appellate court from acting in any manner other than to dismiss
the appeal.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co.,
362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). Accordingly, we
dismiss defendant’s appeal, but, in our discretion, we allow
defendant’s petition for writ of certiorari to review the merits
of his arguments.
Defendant argues the trial court erred in concluding he had
a prior record level of VI, based on 19 points, because the
worksheet used to calculate his prior record level lists one
conviction twice. We agree.
“The prior record level of a felony offender is determined
by calculating the sum of the points assigned to each of the
offender’s prior convictions . . . .” N.C. Gen. Stat. § 15A-
1340.14(a) (2013). The State bears the burden of proving a
defendant’s prior convictions by a preponderance of the evidence
and may meet its burden through:
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(1) Stipulation of the parties.
(2) An original or copy of the court record
of the prior conviction.
(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.
(4) Any other method found by the court to
be reliable.
N.C. Gen. Stat. § 15A-1340.14(f) (2013). Although a defendant’s
stipulation to his prior convictions will relieve the State of
its burden of proving the existence of the convictions, such a
stipulation “does not preclude our de novo appellate review of
the trial court’s calculation of defendant’s prior record
level[.]” State v. Massey, 195 N.C. App. 423, 429, 672 S.E.2d
696, 699 (2009); see also State v. Fair, 205 N.C. App. 315,
318, 695 S.E.2d 514, 516 (2010) (“[W]hether [a] defendant’s
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.”).
Here, at the opening of the plea proceedings, the following
exchange occurred:
[Prosecutor]: The defendant has entered a
plea of guilty to selling marijuana and
being record Level Six. Is that correct . .
. ?
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[Defense Counsel]: That’s correct, Judge. Is
he five or six[?]
[Prosecutor]: It has a six on the record
sheet, I am sorry. Let me make sure-- Yes,
I did put six.
The trial court subsequently signed a prior record level
worksheet prepared by the prosecutor concluding defendant had a
prior record level of VI. The Court found defendant had 19
prior record level points derived from 8 prior Class I
convictions (16 points total), 2 prior Class 1 misdemeanors (2
points total), and 1 additional point because defendant
committed the instant offense while on probation, parole, or
post-release supervision. However, defendant’s prior record
level worksheet contains an error on its face in that one of
defendant’s prior convictions for possession of a Schedule II
controlled substance is listed twice (file number 10 CRS 50930
from Wilson County on 4 April 2011). Excluding one of the
double-counted convictions gives defendant 17 prior record level
points and a prior record level of V. N.C. Gen. Stat. § 15A-
1340.14(c) (2013).
The State contends that defense counsel’s silence after the
prosecutor’s statement that he “put six” as defendant’s prior
record level constitutes a stipulation that defendant’s prior
record level was VI. However, the prosecution’s answer to
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counsel’s question was merely that he “put six” on the prior
record level worksheet. Given defense counsel’s uncertainty as
to whether defendant’s prior record level was V or VI, we do not
believe counsel’s subsequent silence amounted to a stipulation
that defendant’s prior record level was VI. State v. Alexander,
359 N.C. 824, 828, 616 S.E.2d 914, 917 (2005) (“While 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.” (citations and quotation
marks omitted)). Moreover, “[t]he determination of an
offender’s prior record level is a conclusion of law that is
subject to de novo review on appeal[,]” State v. Bohler, 198
N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009), and
“[s]tipulations as to questions of law are generally held
invalid and ineffective, and not binding upon the courts, either
trial or appellate.” State v. Hanton, 175 N.C. App. 250, 253,
623 S.E.2d 600, 603 (2006) (citation and quotation marks
omitted).
Accordingly, we hold the trial court erred in sentencing
defendant as having a prior record level of VI, and remand this
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matter for resentencing. As we are remanding for resentencing
we need not address the remaining issues briefed by defendant.
Remanded for resentencing.
Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).