State v. Massey , 62 N.C. App. 66 ( 1983 )

Chief Judge VAUGHN

dissenting.

I disagree with that portion of the opinion holding that the judge erred in finding the prior conviction as an aggravating factor. G.S. 15A-1340.4(e) provides that a prior conviction may be proved by stipulation or by the court record. Here, the prior conviction was proved by stipulation. Whether the defendant was afforded right to counsel is not an element of a “prior conviction.” The statute merely provides that the prior conviction may not be used as an aggravating factor unless the defendant was afforded his right to counsel. It is just like any other evidence that is made inadmissible by statute or rule. If this defendant was not afforded right to counsel at his prior conviction, it was his duty to raise the issue in the trial court and not, for the first time, on appeal. The statute expressly so provides:

A defendant may make a motion to suppress evidence of a prior conviction pursuant to Article 53 of this Chapter. If the motion is made for the first time during the sentencing stage of the criminal action, either the State or the defendant is entitled to a continuance of the sentencing hearing.

G.S. 15A-1340.4(e).

If defendant contends he was not afforded right to counsel, he raises a factual issue to be resolved in the trial court just as he does under Article 53 when he moves to suppress other evidence. The legislature very reasonably and expressly provided for the same procedures in Article 81A, the sentencing act we are now considering.

It may be that I could concur in some of the other matters discussed in the majority opinion. Instead, I elect to dissent to afford the right of further review on the question raised in this dissent.