Opinion
No. COA04-663
Filed 19 April 2005 This case not for publication
Appeal by defendant from judgment entered 18 December 2003 by Judge A. Leon Stanback, Jr. in Durham County Superior Court. Heard in the Court of Appeals 3 February 2005.
Attorney General Roy Cooper, by Associate Attorney General Kimberly Elizabeth Gunter, for the State. George E. Kelly, III, for defendant.
Durham County No. 03 CRS 05666; No. 03 CRS 045801; No. 03 CRS 12321; No. 03 CRS 13568-69; No. 03 CRS 44383; No. 03 CRS 45801; No. 03 CRS 45889; No. 03 CRS 51560-61.
Defendant (Steven Earl Riggs) appeals from judgment entered 18 December 2003 upon defendant's pleas of guilty. We affirm.
On 18 December 2003 defendant pled guilty to five felonies, including attempted first degree burglary, and to the misdemeanors of assault with a deadly weapon and hit and run. In addition, defendant admitted his status as an habitual felon. At this hearing the trial court followed the procedural mandates of N.C.G.S. § 15A-1022, questioning defendant regarding the voluntariness of his pleas. The State proffered a factual basis for defendant's pleas and tendered a prior record level worksheet, form AOC-CR-600. According to the worksheet, defendant had sufficient prior record points to be categorized as a level IV offender. At sentencing, defense counsel addressed the trial court as follows:
THE COURT: Do you want to be heard on the sentence?
[DEFENSE COUNSEL]: Yes, Judge. Let me — if you look at Mr. Rigg's worksheet, it's a lengthy one, which is why we're here on the habitual felon. You'll find that the vast majority of his charges are property crimes.
This is a man who in his late teens and early twenties got into a lot of trouble, and it was at a time when we might have saved this man from what he's facing today. He was never — when he was arrested for all these charges, he was never given an opportunity to be on probation or to straighten things out. He went to prison. He spent eight years in prison during his twenties, late teens, early twenties.
The man has become extremely institutionalized. He was released into the — into society without any sort of halfway house or anything of that type. He received no drug treatment or anything while he was in prison, no training for a trade or anything. Found himself out on the street. And frankly, Judge, he couldn't cope. And so he turned to the one thing that he knew how to do, which was drugs and crimes.
Again, even though there are some violent crimes in here, Mr. Riggs is not, from what I've dealt with him, a violent man. He's a drug addict, and he — he supported that with property crimes.
The reason I'm putting this out, Judge, is, I think that Mr. Riggs has recognized and I think the State has been extremely generous with the offer that he has in consolidating all these habituals, and Mr. Riggs realizes that — that he cannot cope with the rest of his life with this kind of — of history and background.
We are asking the Court to accept the plea, we're asking the Court to — oh, Mr. Riggs, this last time that he's been in jail, he has entered the STARR Program, will graduate tomorrow from the STARR Program. And if it is within the Court's power, we're asking that the Court hold Mr. Riggs in the county jail to finish the GRAD Program, which I believe starts the 1st of the year, and would be completed the end of January.
. . . .
If he can be given the treatment he needs and the training he needs, in ten years he might be able to come out, Judge, and be a productive citizen instead of the problem that he has been for so long.
The trial court accepted defendant's pleas and sentenced defendant as a prior record level IV offender. Defendant was sentenced within the presumptive range to 120-153 months imprisonment.
On appeal defendant argues the trial court erred by (1) failing to conduct a competency hearing following defendant's court ordered evaluation at Dorothea Dix Hospital, as required by N.C.G.S. § 15A-1002(b); (2) accepting his pleas to misdemeanor assault with a deadly weapon and attempted first degree burglary because there was insufficient evidence to support these charges; and (3) sentencing defendant as a level IV offender because the State failed to prove defendant's prior convictions.
Defendant's first argument on appeal challenges the trial court's acceptance of his guilty pleas due to the fact the trial court failed to hold a competency hearing following his court ordered evaluation. Defendant contends he had a statutory right, pursuant to N.C.G.S. § 15A-1002(b) (2003), to a competency hearing following his evaluation at Dorothea Dix Hospital.
On 18 July 2003, several months prior to tendering his guilty pleas, defendant moved for a court ordered evaluation of his competency to stand trial. Defendant's motion alleged that:
Since Mr. Riggs was returned to the Durham County Jail he has seemed more and more out of touch with reality. He appears to be delusional and has mentioned suicidal ideation to his attorney. He has shown little or no desire to help prepare his defense and expresses the idea that everything will be fine, just wait and see. He does not seem to understand the seriousness of the charges against him and appears to believe it will all go away with time.
On 24 July 2003 Judge Stanback ordered that defendant be evaluated at Dorothea Dix Hospital. The record includes no further information pertaining to defendant's competency. As a result, this Court is not privy to the results of the evaluation, if one was conducted, and/or whether defendant was provided a hearing on competency following such evaluation.
N.C.G.S. § 15A-1444 (2003) specifies the grounds which give rise to an appeal as of right from entry of a guilty plea and provides in pertinent part:
(a1) A defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.
(a2) A defendant who has entered a plea of guilty or no contest to a felony or misdemeanor in superior court is entitled to appeal as a matter of right the issue of whether the sentence imposed:
(1) Results from an incorrect finding of the defendant's prior record level under G.S. 15A-1340.14 or the defendant's prior conviction level under G.S. 15A-1340.21;
(2) Contains a type of sentence disposition that is not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level; or
(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant's class of offense and prior record or conviction level.
. . . .
(e) Except as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari. . . .
The failure of a trial court to hold a post-evaluation competency hearing is not expressly listed in G.S. § 15A-1444 as an issue for which defendant has an appeal of right following entry of a guilty plea. Defendant did not move to withdraw his guiltypleas. See G.S. § 15A-1444(e). Arguably, defendant does not have the right to appellate review of this issue on direct appeal, and he has not sought review in this Court of this issue by means of a petition for writ of certiorari or by way of a motion for appropriate relief. Moreover, the current record is not sufficient to review the merits of defendant's assignment of error.
We dismiss this assignment of error without prejudice to defendant's ability to bring a motion for appropriate relief in the trial division pursuant to N.C.G.S. § 15A-1411, et seq. (2003) should he have grounds to do so.
Defendant's second and third arguments contest the sufficiency of the evidence supporting defendant's convictions of attempted first degree burglary and misdemeanor assault with a deadly weapon. According to G.S. § 15A-1444(a1), (a2) and (e), defendant has no right to appeal the sufficiency of the evidence of these offenses because he pled guilty to the same. Defendant's second and third assignments of error are dismissed.
We next turn to defendant's final argument that the trial court erred in sentencing defendant as a level IV offender. Defendant contends the State failed to meet its burden of proving defendant's prior convictions under N.C.G.S. § 15A-1340.14(f) (2003). Because we hold defense counsel's statements to the trial court constitute a stipulation to defendant's prior convictions, we disagree. N.C.G.S. § 15A-1340.14(f) provides in pertinent part:
A prior conviction shall be proved 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 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.
The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists. . . .
"There is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions." State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002) (citation omitted). While a worksheet alone is insufficient proof of a defendant's prior convictions, his prior convictions may be proved by stipulation. See G.S. § 15A-1340.14(f)(1) ("A prior conviction shall be proved by . . . [s]tipulation of the parties."). In Eubanks, defense counsel's response to the trial court that he had no objection to the worksheet was held to be a stipulation to defendant's prior convictions listed on the worksheet. Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 743. "This Court has held that a defendant can stipulate to a prior record level through a colloquy between defense counsel and the trial court." State v. Jeffrey, ___, N.C. App. ___, ___, 605 S.E.2d 672, 675 (2004). In the instant case, defendant did not object to the worksheet, to any conviction listed thereon, or to the calculation of points establishing him as a level IV offender. In fashioning his remarks to the trial court for sentencing purposes, defense counsel relied, in large measure, on the worksheet submitted by the prosecutor. Defense counsel asked the court to "look" at the offenses enumerated on the worksheet, and acknowledged the worksheet was "lengthy". He characterized the "vast majority" of his client's offenses on the worksheet as "property crimes." Defense counsel stated that, even though "there are some violent crimes [listed in the worksheet], defendant was not "a violent man." Again referring to the worksheet, defense counsel stated that defendant supported his drug addiction with "property crimes."
Because defense counsel affirmatively acknowledged defendant's prior convictions listed on the worksheet, utilizing the same in his arguments before the trial court, his collective statements to the trial court are reasonably construed to be an admission of defendant's prior convictions. We hold defendant has stipulated to the prior convictions listed on the worksheet. This assignment of error is overruled.
Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).