Opinion
No. COA11–1130.
2012-04-17
STATE of North Carolina v. Tory Lee ROSEBORO.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for the State. Linda B. Weisel, for Defendant.
Appeal by Defendant from judgment entered 9 February 2011 by Judge Richard L. Doughton in Cleveland County Superior Court. Heard in the Court of Appeals 16 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for the State. Linda B. Weisel, for Defendant.
BEASLEY, Judge.
Tory Lee Roseboro (Defendant) appeals from judgment entered upon his guilty plea to attempted robbery with a dangerous weapon, an offense committed 5 April 2010. The trial court found Defendant had a prior record level of V, based on 14 prior record level points, and sentenced Defendant to a term of 111–143 months imprisonment. Defendant appeals.
Defendant argues the trial court improperly determined that he had a prior record level of V because it assigned four, rather than two, prior record level points for his prior conviction of conspiracy to commit felony common law robbery. We agree.
Before imposing a sentence, the trial court must “determine the prior record level for the offender pursuant to [N.C.]G.S. [§ ] 15A–1340.14.” N.C. Gen.Stat. § 15A–1340.13(b) (2011). “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) (2011). The State bears the burden of proving a defendant's prior record level by a preponderance of the evidence, and may meet its burden through:
(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) (2011). “While a stipulation by a defendant is sufficient to prove the existence of the defendant's prior convictions, which may be used to determine the defendant's prior record level for sentencing purposes, the trial court's assignment of defendant's prior record level is a question of law.” State v. Wingate, –––N.C.App. ––––, ––––, 713 S.E.2d 188, 189 (2011). It is well established that “ ‘[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) (quoting State v. Prevette, 39 N.C.App. 470, 472, 250 S.E.2d 682, 683 (1979)). “This rule is more important in criminal cases, where the interests of the public are involved. The due administration of the criminal law cannot be left to the stipulations of the parties.” Prevette, 39 N.C.App. at 472, 250 S.E.2d at 683. “[T]he trial court's assignment of a prior record level is a conclusion of law, which we review de novo.” State v. Mack, 188 N.C.App. 365, 380, 656 S.E.2d 1, 12 (2008).
Here, Defendant stipulated that he was previously convicted in North Carolina of one count of conspiracy to commit felony common law robbery. Defendant stipulated that this conviction was a Class G felony. Defendant now argues that the trial court erred in relying on this stipulation because as a matter of law, conspiracy to commit felony common law robbery is a Class H felony. Defendant argues that the trial court erred in allocating four points for this prior conviction, when it should have been two points, and that without the two extra prior record level points, he has a prior record level of IV, based on 12 points. SeeN.C. Gen.Stat. § 15A–1340.14(b), (c) (2011) (providing that a prior conviction for a Class H felony is assigned two points, and a Level IV prior offender has at least ten but not more than thirteen points). In response, the State argues Defendant's stipulation is sufficient to establish the class of the felony offense and the court could rely upon the factual stipulation by Defendant that the prior conviction is a Class G felony. Wingate, ––– N.C.App. at ––––, 713 S.E.2d at 190.
In Wingate the defendant had stipulated on his prior record level worksheet that he had been convicted of one count of “conspiracy to sell or deliver cocaine” and two counts of “selling or delivering cocaine,” and that these convictions were Class G felonies. Id. at –––, 713 S.E.2d at 189. On appeal, the Defendant argued there was insufficient proof to establish whether his convictions had been for the sale of cocaine, which are Class G felonies, or the delivery of cocaine, which are Class H felonies. Id. at –––, 713 S.E.2d at 189–90;see alsoN.C. Gen.Stat. §§ 90–90(1)(d), –95(b)(1), –98 (2011). This Court held that the trial court could rely on defendant's “factual stipulation” that he had been convicted of the Class G felonies, rather than the Class H felonies. Wingate, ––– N.C.App. at ––––, 713 S.E.2d at 190.
This case, however, differs from the scenario presented in Wingate in that defendant stipulated that his conviction for conspiracy to commit felony common law robbery was a Class G felony when, as a matter of law, the conviction is a Class H felony. SeeN.C. Gen.Stat. § 14–2.4(a) (2011) (“Unless a different classification is expressly stated, a person who is convicted of conspiracy to commit a felony is guilty of a felony that is one class lower than the felony he or she conspired to commit....”); N.C. Gen.Stat. § 14–87.1 (2011) ( “Robbery as defined at common law, other than robbery with a firearm or other dangerous weapon as defined by G.S. 14–87, shall be punishable as a Class G felony.”). In Wingate the question before the Court was whether defendant's stipulation to the class of an ambiguously titled felony was sufficient to establish that his conviction was for the Class G felony of sale of cocaine, rather than the Class H felony of delivery of cocaine. Here, there is no ambiguity in the prior felony to which Defendant stipulated. Defendant stipulated that he was previously convicted of conspiracy to commit felony common law robbery. As a matter of law, this conviction is a Class H felony. It was error to list the conviction as a Class G felony on the prior record level worksheet, and it was error for the trial court to rely on that stipulation to calculate Defendant's prior record level. Properly counting Defendant's prior conviction for conspiracy to commit felony common law robbery as a Class H felony, Defendant would have a prior record level of IV. Accordingly, we remand for resentencing.
Because we remand this matter for a new sentencing hearing we need not address Defendant's remaining argument as to whether the trial court erred in entering a judgment imposing a longer prison term than the sentence pronounced in open court.
Remanded for resentencing. Judges CALABRIA and STROUD concur.
Report per Rule 30(e).