An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1201
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 12 CRS 27326, 211387
CHRISTOPHER JEROME DAVIS
Appeal by Defendant from judgment entered 30 April 2013 by
Judge Nathaniel J. Poovey in Mecklenburg County Superior Court.
Heard in the Court of Appeals 23 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Carole Biggers, for the State.
Guy J. Loranger for Defendant.
STEPHENS, Judge.
Defendant appeals from the judgment entered upon his
convictions for felony possession of cocaine and having attained
habitual felon status. Defendant contends the trial court erred
in calculating his prior record level. We agree. Accordingly,
we reverse the judgment and remand the matter for a new
sentencing hearing.
-2-
On 30 April 2013, a jury found Defendant guilty of both
charges. At sentencing, Defendant stipulated to the contents of
the State’s prior record level worksheet, and the trial court
found Defendant had fourteen prior record level points,
resulting in a prior record level of V. Thirteen points were
assigned for the prior offenses listed on the worksheet, and one
point was added because the elements of the current possession
offense were included in a prior offense. The court sentenced
Defendant to a presumptive-range term of 40 to 60 months
imprisonment, based on his habitual felon status and prior
record level.
Defendant’s sole argument on appeal is that the trial court
erred by relying upon the three felonies used to establish his
habitual felon status to support its prior record level finding.
The State concedes the trial court erred, and we agree.
“For purposes of sentencing, a trial court must (1)
ascertain the type and number of the defendant’s prior
convictions, (2) calculate the sum of the points assigned for
each conviction, and (3) based upon the defendant’s total
points, determine the defendant’s prior record level.” State v.
Powell, __ N.C. App. __, __, 732 S.E.2d 491, 493 (2012)
(citation omitted). The State bears the burden of proving a
-3-
defendant’s prior convictions by a preponderance of the
evidence. N.C. Gen. Stat. § 15A-1340.14(f) (2013). Convictions
used to establish a defendant’s habitual felon status may not
also be used in the calculation of his prior record level.
State v. Miller, 168 N.C. App. 572, 575, 608 S.E.2d 565, 567
(2005); N.C. Gen. Stat. § 14-7.6 (2013).
In this case, Defendant stipulated to the accuracy of the
State’s prior record level worksheet, and the trial court relied
upon that stipulation to support its calculation of Defendant’s
prior record level. As Defendant correctly observes, however,
three of the offenses listed on his prior record level worksheet
were also used to establish his habitual felon status:
convictions for possession with intent to sell or deliver
cocaine in cases 96 CRS 53790 and 01 CRS 163533, and a
conviction for possession of cocaine in case 93 CRS 12327.1
The remaining felonies listed on the prior record level
worksheet are insufficient to support the court’s prior record
level calculation. The worksheet lists two class G felonies,
1
We note that the prior record level worksheet lists the date of
conviction for felony possession of cocaine in case 93 CRS 12327
as 30 October 1995, but the judgment in that case and the
habitual felon indictment in the instant case each list the
conviction date as 22 April 1993. A copy of the judgment was
introduced into evidence during the habitual felon phase of the
trial in this case.
-4-
each worth four prior record level points; one class H felony,
worth two points; and one class 1 misdemeanor, worth one point.
See N.C. Gen. Stat. § 15A-1340.14(a)(3)-(5). The worksheet also
contains a finding that all of the elements of the present
possession offense were included in a prior offense, which is
worth one point. N.C. Gen. Stat. § 15A-1340.14(a)(6). Thus,
the worksheet to which Defendant stipulated supported a finding
of a total of twelve prior record level points for habitual
felon sentencing purposes, which in turn is sufficient to
support only a prior record level of IV rather than V. See N.C.
Gen. Stat. § 15A-1340.14(c).
Under his proper prior record level as an habitual felon,
Defendant’s permissible range of minimum terms was 30 to 38
months, two months shorter than the 40-month minimum the trial
court imposed. N.C. Gen. Stat. § 15A-1340.17(c) (2013).
Accordingly, we reverse the judgment and remand for
resentencing.
REVERSED and REMANDED.
Judges HUNTER, ROBERT C., and ERVIN concur.
Report per Rule 30(e).