Opinion
No. COA11–730.
2012-04-3
STATE of North Carolina v. James Bernard HENDERSON.
Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.
Appeal by defendant from judgment entered 21 July 2010 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 25 January 2012. Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.
BRYANT, Judge.
Where the State, in an attempt to prove that defendant's prior out-of-state conviction for robbery is substantially similar to an offense in North Carolina for prior record level sentencing purposes, fails to demonstrate that the statute offered for comparison is unchanged from the statute under which defendant was charged, we remand for resentencing.
Defendant was convicted by a jury of first-degree rape, first-degree burglary, first-degree kidnapping, and first-degree sex offense in February 2008. The trial court concluded that defendant was a prior record level IV for sentencing purposes and sentenced defendant accordingly. Defendant subsequently appealed his convictions.
On 8 December 2009, this Court remanded defendant's case to superior court for re-sentencing, State v. Henderson, 201 N.C.App. 381, 689 S.E.2d 462 (2009). At the resentencing hearing on 21 July 2010, the trial court determined that defendant was a prior record level III for sentencing purposes. The trial court then ordered defendant to serve consecutive sentences of 336–413 months for first-degree rape, 103–133 months for first-degree burglary, 34–50 months for second-degree kidnapping, and 336–413 months for first-degree sex offense. Defendant appeals.
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On appeal, defendant argues the trial court erred in sentencing him as a prior record level III offender. Specifically, defendant contends the State failed to prove that his prior out-of-state conviction for robbery in 1989 was substantially similar to the North Carolina crime of common law robbery. Defendant alleges the State failed to demonstrate that the 2010 statute offered at the resentencing hearing to prove defendant's prior out-of-state conviction for robbery is the same as the statute under which defendant was convicted in 1989. We agree.
“[T] he question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law requiring de novo review on appeal .” State v. Fortney, 201 N.C.App. 662, 669, 687 S.E.2d 518, 524 (2010) (internal quotation marks and citations omitted).
“The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.” N.C. Gen.Stat. § 15A–1340.14 (f) (2011). A prior conviction shall be proved by stipulation of the parties, an original or copy of the court record of the prior conviction, a copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts, or any other method found by the court to be reliable. Id. Typically, “a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony ....“ N.C.G.S. § 15A–1340.14(e). However,
[i]f the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points.
Id. (emphasis added).
“[W]hether an out-of-state offense is substantially similar to a North Carolina offense is a question of law that must be determined by the trial court, not the jury.” State v. Hanton, 175 N.C.App. 250, 254, 623 S.E.2d 600, 604 (2006). In determining “whether the out-of-state conviction is substantially similar to a North Carolina offense,” the trial court should compare “the elements of the out-of-state offense to those of the North Carolina offense.” Fortney, 201 N.C.App. at 671, 687 S.E.2d at 518 (citation omitted). “However, the requirement set forth in N.C. Gen.Stat. § 15A–1340.14(e) is not that the statutory wording precisely match, but rather that the offense be ‘substantially similar.’ “ State v. Sapp, 190 N.C.App. 698, 713, 661 S.E.2d 304, 312 (2008), appeal dismissed and disc. review denied,363 N.C. 661, 685 S.E.2d 799 (2009).
In 2009, we remanded this case for resentencing based on the State's failure “to demonstrate to the trial court the substantial similarity of defendant's out-of-state convictions to North Carolina crimes which would carry the sentencing points as assigned by the trial court....” State v. Henderson, 201 N.C.App. 381, 388, 689 S.E.2d 462, 467 (2009) (citation omitted). Accordingly, the State introduced criminal complaints and judgment forms from the Commonwealth of Pennsylvania at the resentencing hearing demonstrating that defendant pled guilty to robbery in 1989. The State also introduced a 2010 copy of the Pennsylvania statute for robbery, 18 Pa. Cons.Stat. § 3701 (2010), and argued that this statute is substantially similar to armed robbery or, at a minimum, common law robbery here in North Carolina and that based on this substantial similarity defendant should be sentenced to a Class D or G felony rather than a Class I felony.
During the resentencing hearing, defendant conceded that his conviction for robbery in Pennsylvania amounted to a felony here in North Carolina for prior record level sentencing purposes. However, defendant contended that it was not substantially similar so as to increase the offense from a Class I felony to something more severe such as a Class D or G felony. Nevertheless, the trial court stated that it “is going to find as a matter of law that[,] at a minimum, the robbery conviction is similar to the[sic] common law robbery in North Carolina for punishment and is a Class G felony.” As a result, defendant was given four points instead of two for his prior out-of-state conviction for robbery and was sentenced as a prior record level III offender rather than a prior record level II offender.
Despite the State's attempt to conform to our holding in Henderson, defendant contends that we should remand again for resentencing based on the State's failure to demonstrate that the 2010 statute offered at the resentencing hearing to prove defendant's prior conviction for robbery is unchanged from the statute under which defendant was convicted in 1989. We agree.
In State v. Burgess, we remanded for resentencing in part because “the State presented 2008 copies of the out-of-state statutes purportedly serving as the basis for those convictions and presented no evidence that the statutes were unchanged from the 1993 and 1994 versions under which defendant had been convicted.” ––– N .C.App. ––––, ––––, 715 S.E.2d 867, 870 (2011). In State v. Morgan, we remanded for resentencing where “[t]he State presented no evidence ... that the 2002 New Jersey homicide statute [presented at sentencing] was unchanged from the 1987 version under which [the][d]efendant was convicted.” 164 N.C.App. 298, 309, 595 S.E.2d 804, 812 (2004). As a result, we held that “the State failed to show that [the][d]efendant's prior conviction was substantially similar to an offense in North Carolina classified as a Class I felony or higher....” Id.
Both Burgess and Morgan emphasize the requirement that, in order to show substantial similarity in accordance with N.C.G.S. § 15A–1340.14 (e), the State must prove that a statute offered at the resentencing hearing for a prior out-of-state conviction is unchanged from the statute under which defendant was convicted if in a different year. Otherwise, the court cannot conduct a proper elements-based analysis of the out-of-state offense compared to the North Carolina offense. We also note that the Court in both Burgess and Morgan remanded the cases for resentencing based on the State's failure to prove that the out-of-state conviction is substantially similar to an offense in North Carolina as required by N.C.G.S. § 15A–1340.14 (e).
Therefore, our prior decisions in Burgess and Morgan compel us to conclude that because the State failed to prove that the 2010 Pennsylvania statute offered at the resentencing hearing is unchanged from 1989, it could not satisfy its burden of showing substantial similarity between the out-of-state offense to the corresponding North Carolina offense pursuant to N.C.G.S. § 15A–1340 .14(e). See also In Re Civil Penalty, 324 N.C. 373, 384, 379 S.E .2d 30, 37 (1989) (holding “a panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court.”). Therefore, we remand this matter for resentencing in order that the trial court may consider additional information presented by the State or by defendant regarding defendant's prior out-of-state conviction for robbery in 1989.
Remanded for resentencing. Judges ELMORE and ERVIN concur.
Report per Rule 30(e).