State v. GreenÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1114
Filed: 16 July 2019
Craven County, Nos. 16 CRS 53678, 17 CRS 448, 17 CRS 449
STATE OF NORTH CAROLINA
v.
JAMES BROWN GREEN, JR.
Appeal by Defendant from Judgment entered 24 April 2018 by Judge John E.
Nobles, Jr. in Craven County Superior Court. Heard in the Court of Appeals 10 April
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Brittany K.
Brown, for the State.
Winifred H. Dillon, Attorney at Law, for defendant-appellant.
HAMPSON, Judge.
Factual and Procedural Background
James Brown Green, Jr. (Defendant) appeals from his convictions for
Possession of a Firearm by a Felon, Possession with Intent to Sell/Deliver Cocaine
(PWISD Cocaine), Possession of Drug Paraphernalia, and having attained the status
of a Habitual Felon. Relevant to this appeal, the Record before us tends to show the
following:
STATE V. GREEN
Opinion of the Court
On 7 August 2017, a Craven County Grand Jury returned true Bills of
Indictment charging Defendant with one count of PWISD Cocaine, Possession of Drug
Paraphernalia, Possession of a Firearm by a Felon, and attaining Habitual-Felon
status. Pursuant to a plea agreement, Defendant entered an Alford plea1 to all four
charges on 24 April 2018. As recorded on the Transcript of Plea, the parties’ plea
agreement provided that Defendant’s offenses would be consolidated for judgment
into one habitual-felon sentence and that Defendant would receive an “active
sentence of 87–117 months bottom mitigated.”
Defendant stipulated to a Prior-Record-Level Worksheet (Worksheet)
presented by the State that listed Defendant’s prior convictions in North Carolina.
The Worksheet disclosed a total of 19 points, making Defendant a prior-record level
VI offender for sentencing purposes. Relevant to this appeal, the Worksheet listed
three prior convictions that Defendant contends were erroneously classified: (1) 1994
Possession of Drug Paraphernalia, classified as a Class 1 misdemeanor; (2) 1993
Maintaining a Vehicle/Dwelling for the use or storage of controlled substances,
classified as a Class I felony; and (3) 1993 Carrying Concealed Weapon, classified as
a Class 1 misdemeanor. The State also submitted, as exhibits, copies of three prior
judgments, which were used for the Habitual-Felon Indictment. One of these
judgments showed that the 1993 Maintaining-a-Vehicle/Dwelling conviction
1See North Carolina v. Alford, 400 U.S. 25, 37-39, 27 L. Ed. 2d 162, 171-72 (1970) (allowing a
defendant to plead guilty while maintaining his factual innocence).
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STATE V. GREEN
Opinion of the Court
constituted a violation of N.C. Gen. Stat. § 90-108. According to this judgment, the
conviction was classified as a misdemeanor but did not include the specific class of
misdemeanor.
After conducting a plea colloquy with Defendant and after hearing the
Prosecution’s summary of the factual basis for the plea, the trial court accepted
Defendant’s Alford plea. The trial court then sentenced Defendant to the agreed-
upon prison term of 87 to 117 months, which was in the mitigated range based on
Defendant’s class of offense and prior-record level as calculated on the Worksheet.
Defendant timely filed his Notice of Appeal on 30 April 2018.
Jurisdiction
Defendant’s appeal is properly before this Court pursuant to Section 15A-
1444(a2)(1) of our General Statutes. See N.C. Gen. Stat. § 15A-1444(a2)(1) (2017)
(providing “[a] defendant who has entered a plea of guilty . . . is entitled to appeal as
a matter of right the issue of whether the sentence imposed . . . [r]esults from an
incorrect finding of the defendant’s prior record level”).
Issue
The sole issue on appeal is whether the trial court erred in calculating
Defendant’s prior-record level by (1) including Defendant’s 1994 Possession-of-Drug-
Paraphernalia conviction in Defendant’s prior-record-level calculation; (2) classifying
Defendant’s 1993 Maintaining-a-Vehicle/Dwelling conviction as a Class I felony; and
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STATE V. GREEN
Opinion of the Court
(3) counting Defendant’s 1993 Carrying-Concealed-Weapon conviction as a Class 1
misdemeanor.2
Analysis
I. Standard of Review
“The determination of an offender’s prior record level is a conclusion of law that
is subject to de novo review on appeal.” Bohler, 198 N.C. App. at 633, 681 S.E.2d at
804 (citation omitted). “Under a de novo review, the court considers the matter anew
and freely substitutes its own judgment for that of the lower tribunal.” State v.
Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation
marks omitted).
II. Prior-Record Level
Generally, “[t]he 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) (2017). “The State bears the burden
of proving, by a preponderance of the evidence, that a prior conviction exists and that
2 Although Defendant did not object to the trial court’s prior-record-level calculation, we note
this issue is automatically preserved for appellate review pursuant to our General Statutes and
established case law. See N.C. Gen. Stat. § 15A-1446(d)(18) (2017); see also State v. Meadows, 371
N.C. 742, 747, 821 S.E.2d 402, 406 (2018) (recognizing arguments “that ‘[t]he sentence imposed was
unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed,
or is otherwise invalid as a matter of law’ ” are statutorily preserved (citing N.C. Gen. Stat. § 15A-
1446(d)(18))); State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009) (“It is not necessary
that an objection be lodged at the sentencing hearing in order for a claim that the record evidence does
not support the trial court’s determination of a defendant’s prior record level to be preserved for
appellate review.” (citations omitted)).
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STATE V. GREEN
Opinion of the Court
the offender before the court is the same person as the offender named in the prior
conviction.” Id. § 15A-1340.14(f). “In determining [a defendant’s] prior record level,
the classification of a prior offense is the classification assigned to that offense at the
time the offense for which the offender is being sentenced is committed.” Id. § 15A-
1340.14(c). Standing alone, a sentencing worksheet prepared by the State listing a
defendant’s prior convictions is insufficient proof of those convictions. State v.
Alexander, 359 N.C. 824, 827, 616 S.E.2d 914, 917 (2005). Rather, prior convictions
can be proven by any of the following methods:
(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 Department of Public
Safety, the Division of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be reliable.
Id. § 15A-1340.14(f)(1)-(4).
Here, the trial court, relying on the parties’ stipulations, sentenced Defendant
as a prior-record level VI with 19 prior-record-level points based on eight prior
convictions. Defendant contends three of his prior convictions were wrongly
calculated. Although neither the State nor Defendant has pointed us to State v.
Arrington, we believe this precedent instructs our analysis in this case where
Defendant stipulated to his prior-record level. See 371 N.C. 518, 819 S.E.2d 329
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Opinion of the Court
(2018). However, this case also illustrates certain challenges in the application of
Arrington, such as where the underlying record shows a stipulation to be in error or
where the stipulation is to a classification for an offense that conflicts with the actual
classification in the applicable criminal statute.
Our Court recently summarized the Supreme Court’s decision in Arrington:
In Arrington, the defendant entered a plea agreement and
stipulated to a sentencing worksheet showing his prior offenses,
including a second-degree murder conviction designated as a B1
offense. [State v. Arrington, 371 N.C. 518,] 519, 819 S.E.2d [329,]
330 [(2018)]. The defendant’s second-degree murder conviction
stemmed from acts committed prior to 1994; however, the
Legislature did not divide this crime into two classifications, B1
and B2, until after the defendant’s 1994 conviction. Id. at 522-25,
819 S.E.2d at 332-34. Thus, the defendant’s second-degree
murder conviction could have been classified as a B1 or B2
offense, depending on certain factual circumstances existing at
the time of the murder; however, the defendant did not explain
the factual underpinnings of his conviction and merely stipulated
to the B1 classification. Id. at 520-21, 819 S.E.2d at 330-31. This
Court vacated the trial court’s judgment and held that this
determination—whether the second-degree murder conviction
should be classified as a B1 or B2 offense for sentencing
purposes—constituted a legal question to which the defendant
could not stipulate. Id. at 521, 819 S.E.2d at 331 (citation
omitted).
Our Supreme Court reversed this Court, reasoning that
“[e]very criminal conviction involves facts (i.e., what actually
occurred) and the application of the law to the facts, thus making
the conviction a mixed question of fact and law.” Id.
“Consequently, when a defendant stipulates to a prior conviction
on a worksheet, the defendant is admitting that certain past
conduct constituted a stated criminal offense.” Id. at 522, 819
S.E.2d at 331. “By stipulating that the former conviction of
second-degree murder was a B1 offense, defendant properly
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Opinion of the Court
stipulated that the facts giving rise to the conviction fell within
the statutory definition of a B1 classification.” Id. at 522, 819
S.E.2d at 332. “Thus, like a stipulation to any other conviction,
when a defendant stipulates to the existence of a prior second-
degree murder offense in tandem with its classification as either
a B1 or B2 offense, he is stipulating that the facts underlying his
conviction justify that classification.” Id. at 524, 819 S.E.2d at
333. Our Supreme Court further acknowledged that
“[s]tipulations of prior convictions, including the facts underlying
a prior offense and the identity of the prior offense itself, are
routine[,]” and that because a defendant is “the person most
familiar with the facts surrounding his offense, . . . this Court
need not require a trial court to pursue further inquiry or make
defendant recount the facts during the hearing.” Id. at 526, 819
S.E.2d at 334 (citation omitted).
State v. Salter, ___ N.C. App. ___, ___, 826 S.E.2d 803, 808 (2019).
In both Arrington and Salter, the respective defendants stipulated to
classifications of prior offenses that were supported, at least at some level, by the
applicable existing criminal statutes defining those offenses. In Arrington, our
Supreme Court held the defendant stipulated to the existence of facts converting his
prior second-degree murder conviction into a Class B1 offense. In Salter, applying
Arrington, we held Defendant could stipulate to a factual underpinning that
supported converting his no-operator’s-license violation into a Class 2 misdemeanor
under the applicable statutes. The case currently before us presents three additional
scenarios implicating Arrington: first, where Arrington most clearly applies; second,
where Arrington should not apply; and third, where Arrington could apply.
A. 1994 Possession-of-Drug-Paraphernalia Conviction
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STATE V. GREEN
Opinion of the Court
Defendant first argues the trial court erred in counting his 1994 Possession-of-
Drug-Paraphernalia conviction as a Class 1 misdemeanor. Prior to 2014 and thus at
the time of Defendant’s 1994 Possession-of-Drug-Paraphernalia conviction, our
General Statutes only contained one classification for possession of drug
paraphernalia—Class 1 misdemeanor; however, in 2014, our Legislature divided
possession of drug paraphernalia into two offenses. See 2014 N.C. Sess. Law 119, §
3 (N.C. 2014). Under this new statutory scheme, possession of marijuana
paraphernalia is a Class 3 misdemeanor; whereas, possession of non-marijuana drug
paraphernalia remains a Class 1 misdemeanor. Compare N.C. Gen. Stat. § 90-
113.22A (2017) (possession of marijuana paraphernalia), with id. § 90-113.22 (2017)
(possession of non-marijuana drug paraphernalia). Defendant contends that because
“the State presented no evidence that [Defendant’s] prior conviction for possession of
drug paraphernalia . . . was for non-marijuana paraphernalia[,]” this conviction
should not have been included in his prior-record-level calculation. See id. § 15A-
1340.14(b)(5) (excluding Class 3 misdemeanors from a defendant’s prior-record-level
calculus). We, however, disagree and conclude Arrington controls, as Defendant’s
stipulation falls within Arrington’s ambit.
Here, on the Worksheet, Defendant—as “the person most familiar with the
facts surrounding his offense”—stipulated that his 1994 Possession-of-Drug-
Paraphernalia conviction was classified as a Class 1 misdemeanor. Arrington, 371
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Opinion of the Court
N.C. at 526, 819 S.E.2d at 334 (citation omitted). Thus, Defendant was “stipulating
that the facts underlying his conviction justify that classification.” Id. at 524, 819
S.E.2d at 333. Therefore, under Arrington, we conclude there was no error in the
trial court’s inclusion of one record point based on Defendant’s stipulation to the 1994
Possession-of-Drug-Paraphernalia conviction being classified as a Class 1
misdemeanor. See id.
Defendant contends State v. McNeil requires a different result. McNeil held:
“Where the State fails to prove a pre-2014 possession of paraphernalia conviction was
for non-marijuana paraphernalia, a trial court errs in treating the conviction as a
Class 1 misdemeanor.” ___ N.C. App. ___, ___, 821 S.E.2d 862, 863, temporary stay
allowed, ___ N.C. ___, 820 S.E.2d 519 (2018). However, there is a crucial distinction
between McNeil and the case sub judice—the defendant in McNeil never stipulated
to his prior-record level. See id. at ___, 821 S.E.2d at 864 (“During the sentencing
hearing, Defendant did not stipulate to his prior convictions, there was no specific
mention of the paraphernalia charge, and the only evidence proffered by the State
was a certified copy of Defendant’s DCI Computerized Criminal History Report.”); see
also Alexander, 359 N.C. at 827, 616 S.E.2d at 917 (“There is no doubt that a mere
worksheet, standing alone, is insufficient to adequately establish a defendant’s prior
record level.”). Thus, Arrington was not applicable to McNeil, which in turn has no
bearing on the present case.
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STATE V. GREEN
Opinion of the Court
Here, however, Defendant’s stipulation to this conviction’s classification is the
prototypical situation to which Arrington applies. Just as in Arrington, at the time
of Defendant’s 1994 Possession-of-Drug-Paraphernalia conviction, the governing
statute only had one classification for this crime. See N.C. Gen. Stat. § 90-113.22
(1993) (listing all types of possession-of-drug-paraphernalia violations as a Class 1
misdemeanor); see also Arrington, 371 N.C. at 522, 819 S.E.2d at 332 (explaining that
at the time of the defendant’s 1994 second-degree murder conviction, “all second-
degree murders were classified at the same level for sentencing purposes” (citation
omitted)). Again, just as in Arrington, the Legislature subsequently divided this
crime into two different classifications depending on the type of drug paraphernalia
possessed. See 2014 N.C. Sess. Law 119, § 3 (N.C. 2014) (creating two types of
possession-of-drug-paraphernalia crimes with differing classifications for sentencing
purposes); see also Arrington, 371 N.C. at 522-23, 819 S.E.2d at 332 (explaining the
Legislature’s 2012 division of second-degree murder into two separate classifications
for sentencing purposes). Thereafter, Defendant was convicted of a new crime and
during sentencing stipulated that his prior Possession-of-Drug-Paraphernalia
conviction qualified for the higher classification for sentencing. Therefore, just as in
Arrington, Defendant could and did stipulate that this classification was proper. See
id. at 527, 819 S.E.2d at 335 (upholding the defendant’s stipulation that his prior
second-degree murder conviction constituted a Class B1 conviction, which was the
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Opinion of the Court
higher of the two classifications). For this reason, Defendant’s Possession-of-Drug-
Paraphernalia conviction fits squarely within Arrington.
B. 1993 Maintaining-a-Vehicle/Dwelling Conviction
Defendant also challenges the trial court’s calculation of his 1993 Maintaining-
a-Vehicle/Dwelling conviction. Specifically, Defendant contends the trial court
committed error by assigning two points, instead of one, to the 1993 Maintaining-a-
Vehicle/Dwelling conviction. The Worksheet shows the trial court counted this
conviction as a Class I felony. However, Defendant points out that the judgment for
this conviction, which was submitted by the State at the sentencing hearing, shows
this conviction constituted a violation of N.C. Gen. Stat. § 90-108 and was classified
as a misdemeanor, although no specific class was designated.
Section 90-108 of our General Statutes sets the penalty for maintaining a
vehicle or dwelling for keeping controlled substances and provides three possible
classifications of this crime for sentencing purposes—Class 1 misdemeanor, Class I
felony, or Class G felony. N.C. Gen. Stat. §§ 90-108(b), -108(b)(1)-(2) (2017).
Here, Defendant stipulated that this conviction warranted a Class I felony
classification for sentencing purposes; however, the judgment, which was before the
trial court, clearly shows that Defendant’s conviction was a misdemeanor. Although
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Opinion of the Court
certain language from Arrington suggests Defendant’s stipulation could be proper,3
we determine Arrington does not apply where there is clear record evidence
demonstrating the parties’ stipulation was an error or mistaken. Thus, when
evidence (such as a certified copy of the judgment) is presented to the trial court
conclusively showing a defendant’s stipulation is to an incorrect classification—as is
the case here—Arrington does not apply, and a reviewing court should defer to the
record evidence rather than a defendant’s stipulation.
We find support for this position from the plain language of the governing
statute. Section 15A-13.40.14(f) places the burden of proof on the State to establish
a defendant’s prior convictions, including the requirement: “The prosecutor shall
make all feasible efforts to obtain and present to the court the offender's full record.”
N.C. Gen. Stat. § 15A-1340.14(f). The statute also expresses an evidentiary
preference for such records:
The original or a copy of the court records or a copy of the records
maintained by the Department of Public Safety, the Division of
Motor Vehicles, or of the Administrative Office of the Courts,
bearing the same name as that by which the offender is charged,
is prima facie evidence that the offender named is the same
person as the offender before the court, and that the facts set out
in the record are true.
Id.
3 See Arrington, 371 N.C. at 526, 819 S.E.2d at 334 (explaining that once a defendant stipulated
to a prior conviction’s classification, a trial court need not “pursue further inquiry or make defendant
recount the facts during the [sentencing] hearing” (citation omitted)).
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Opinion of the Court
Here, because the Record in this case, including evidence presented to the trial
court, discloses that Defendant’s 1993 Maintaining-a-Vehicle/Dwelling conviction
was a misdemeanor and as Section 90-108 only has one misdemeanor classification
(Class 1), the trial court erred by assigning two points, instead of one, to this
conviction.
C. 1993 Carrying-Concealed-Weapon Conviction
Lastly, Defendant asserts the trial court erred in counting his 1993 Carrying-
Concealed-Weapon conviction as a Class 1 misdemeanor. Here, again, Defendant’s
Worksheet lists his conviction for “Carrying Concealed Weapon” as a Class 1
misdemeanor, and Defendant stipulated to this classification. On appeal, Defendant
points us to Section 14-269(c) of our General Statutes, titled “Carrying concealed
weapons[,]” which provides that a defendant’s first carrying-concealed-weapon
offense is a Class 2 misdemeanor, while a second offense is considered a Class H
felony. N.C. Gen. Stat. § 14-269(c) (2017). The State does not contest that this is the
applicable statute.
Defendant argues because the Worksheet does not list any convictions for
carrying concealed weapon prior to the 1993 conviction, “this prior conviction was
incorrectly counted, and one prior record point [was] incorrectly assessed.” The State
claims the classification of this offense depends on a question of fact—“whether the
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Opinion of the Court
1993 carrying a concealed weapon conviction was Defendant’s first offense”—to which
Defendant could and did stipulate.
As discussed supra, however, Section 14-269(c) provides only two
classifications for a violation of its provisions—either a Class 2 misdemeanor or Class
H felony. Defendant, however, stipulated that his conviction was a Class 1
misdemeanor, which is impossible under this statute.
Here is where Arrington creates a conundrum for a reviewing court. While the
State offers no statutory support for this stipulation, our own research reveals there
is a possible, albeit convoluted, factual scenario under which Defendant could have
been convicted of a Class 1 misdemeanor for an offense that could be referred to in
shorthand as “Carrying Concealed Weapon.” Specifically, Section 14-415.21(a1) of
our General Statutes provides: “A person who has been issued a valid [concealed-
carry] permit who is found to be carrying a concealed handgun in violation of
subsection (c2) of [N.C. Gen. Stat. §] 14-415.11 shall be guilty of a Class 1
misdemeanor.” N.C. Gen. Stat. § 14-415.21(a1) (2017). In turn, Section 14-415.11(c2)
prohibits the carrying of a concealed handgun while consuming alcohol. Id. § 14-
415.11(c2) (2017). Therefore, a scenario exists under which Defendant’s stipulation
could be possible and thus upheld under Arrington and Salter, where we found
statutory support for the classification of the offense under the applicable statutes.
However, we do not believe the intent of Arrington was to require a reviewing court
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Opinion of the Court
to undertake sua sponte a voyage of discovery through our criminal statutes to locate
a possibly applicable statute and imagine factual scenarios in which it could apply.
Rather, we defer to the parties who stipulated to the prior conviction as to what
statute applies. Therefore, because Section 14-269 does not provide for a violation of
its provisions to be classified as a Class 1 misdemeanor, we conclude Arrington is
inapplicable and that the trial court erred in accepting Defendant’s stipulation.
Having determined that Defendant's stipulation was invalid, the only
remaining question is the effect of our holding on Defendant's guilty plea. Assuming,
as we must on the Record and arguments before us, Defendant is correct in that this
prior conviction should have been classified as a Class 2 misdemeanor, the trial
court’s miscalculation of this conviction and the Maintaining-a-Vehicle/Dwelling
conviction (discussed in part B above) was not harmless, as Defendant’s prior-record-
level points would be reduced to 17, making him a prior-record level V. See id. § 15A-
1340.14(b)(5) (excluding Class 2 misdemeanors from a defendant’s prior-record-level
calculus); cf. State v. Smith, 139 N.C. App. 209, 220, 533 S.E.2d 518, 524 (2000)
(holding that error in calculating prior-record-level points is harmless if it does not
affect the ultimate prior-record-level determination).
Defendant, thus, contends we should simply remand for resentencing at prior-
record level V. We disagree because Defendant’s sentence was imposed as part of a
plea agreement, which Defendant has successfully repudiated. Rather, the plea
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Opinion of the Court
agreement must be set aside in its entirety, and the parties may either agree to a new
plea agreement or the matter should proceed to trial on the original charges in the
indictments. See, e.g., State v. Rico, 218 N.C. App. 109, 122, 720 S.E.2d 801, 809
(Steelman, J., dissenting) (concluding judgment should be vacated, guilty plea set
aside, and the case remanded for disposition of original charges where trial court
erroneously imposed aggravated sentence based solely on defendant's guilty plea and
stipulation as to aggravating factor), rev'd per curiam for reasons stated in dissent,
366 N.C. 327, 734 S.E.2d 571 (2012).
Conclusion
Accordingly, for the foregoing reasons, we vacate the Judgment against
Defendant and set aside the plea agreement in its entirety. We remand to the trial
court for further proceedings on the charges contained in the indictments, including
trial, if necessary.
VACATED AND REMANDED.
Judges DILLON and MURPHY concur.
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