State v. Wilson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-869
NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Gaston County
No. 12 CRS 57020
RALPH JUNIOR WILSON

Appeal by defendant from judgment entered 13 March 2013 by

Judge James W. Morgan in Gaston County Superior Court. Heard in

the Court of Appeals 9 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Neal T. McHenry, for the State.

Richard J. Costanza, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Ralph Junior Wilson (“Defendant”) appeals from a judgment

and commitment sentencing him to 23–37 months imprisonment for

possession of a firearm by a felon. Defendant contends that the

trial court erred in assessing him with sentencing points for

his prior shoplifting and public disturbance convictions. In

the alternative, Defendant contends that he received ineffective

assistance of counsel during sentencing. For the following
 -2-
reasons, we affirm the trial court’s judgment and dismiss

Defendant’s ineffective assistance of counsel claim.

I. Factual & Procedural History

On 13 March 2013, Defendant was convicted of possession of

a firearm by a felon.1 The evidence presented at Defendant’s

trial tended to show the following.

On 28 May 2012, Officer J.R. Hamrick (“Officer Hamrick”) of

the Gaston County Police Department was on a marine patrol of

Lake Wylie when he received a call from dispatch concerning an

emergency in the area. The reported emergency was near a part

of the lake known as the “hot hole.” As Officer Hamrick

approached the shoreline near the hot hole, a man began

motioning for Officer Hamrick and pointed him in the direction

of a nearby pier. When Officer Hamrick looked over in the

direction to which the man was pointing, he saw a woman who

appeared visibly upset arguing with Defendant on the shoreline.

Officer Hamrick disembarked from the police boat,

approached the couple, and stated “Stop,” “Police, don’t move.”

The woman stood still but Defendant took off running with a

Styrofoam bucket in his hand. Officer Hamrick chased Defendant

up a hill to a nearby restroom. When Officer Hamrick caught up

1
Defendant stipulated to a prior felony conviction at trial.
 -3-
to Defendant at the restroom entrance, Defendant had dropped the

Styrofoam bucket on the ground and a .45 caliber semi-automatic

handgun was lying next to the bucket. Officer Hamrick

restrained Defendant and, after learning that Defendant was a

convicted felon, arrested Defendant for possessing the firearm.

After hearing the foregoing evidence, the jury found

Defendant guilty of possession of a firearm by a felon, a Class

G felony. See N.C. Gen. Stat. § 14-415.1(a) (2013). Thereafter,

the trial court commenced with sentencing. On the record,

defense counsel and the State stipulated to the accuracy of

Defendant’s prior record level worksheet (form AOC-CR-600).

Moreover, it was stipulated that based on Defendant’s prior

convictions listed in Section V of the worksheet, Defendant had

amassed 19 felony sentencing points and was therefore at a prior

record level of VI for felony sentencing purposes. Based on

this stipulation, the trial court concluded that Defendant had

19 prior record points and a prior record level of VI. The

trial court sentenced Defendant to a 23–37 month active

sentence, which is within the presumptive range for a Class G

felon at a record level of VI. See N.C. Gen. Stat. § 15A-1340.17

(2013). Defendant gave notice of appeal in open court.
 -4-
II. Jurisdiction

Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-

27(b), 15A-1444(a) (2013).

III. Analysis

Defendant’s appeal presents two questions for our review:

(1) whether the trial court erred in assessing Defendant with

felony sentencing points for his prior shoplifting and public

disturbance convictions; and (2) whether Defendant received

ineffective assistance of counsel during sentencing. We address

each in turn.

A. Defendant’s Sentencing Argument

Defendant contends that the trial court erred as a matter

of law by assigning him felony sentencing points for his

previous shoplifting and public disturbance convictions. As a

result, Defendant contends that the trial court should have set

his prior record level at V instead of VI and asks this Court to

remand for resentencing.

“The determination of an offender’s prior record level is a

conclusion of law that is subject to de novo review on appeal.”

State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804

(2009). “Under a de novo review, the court considers the matter
 -5-
anew and freely substitutes its own judgment for that of the

lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363

N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and

citation omitted). Even so, an error by the trial court in

calculating a defendant’s prior record point total is harmless

if the error does not affect the determination of the

defendant’s prior record level. State v. Blount, 209 N.C. App.

340, 347, 703 S.E.2d 921, 926 (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 that the court . . . finds to have

been proved in accordance with this section.” N.C. Gen. Stat. §

15A-1340.14(a) (2013). “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).

A prior conviction shall be proved by any of
the following methods:

(1) Stipulation of the parties.

(2) An original copy of the court record of
the prior conviction.

(3) A copy of records maintained by the
Division of Criminal Information, the
 -6-
Division of Motor Vehicles, or of the
Administrative Office of the Courts.

(4) Any other method found by the court to
be reliable.

Id.

The number of prior record points for each class of felony

and misdemeanor offense is specified in N.C. Gen. Stat. § 15A-

1340.14(b). Pertinent here, the only non-traffic misdemeanor

offenses that are assigned prior record points under the statute

are Class A1 and Class 1 misdemeanors. See N.C. Gen. Stat. §

15A-1340.14(b)(5). Importantly, offenders with 18 or more prior

record points are assigned a prior record level of VI for felony

sentencing, while offenders with 14–17 points are assigned a

prior record level of V. See N.C. Gen. Stat. § 15A-1340.14(c).

Here, defense counsel and the State stipulated to the

accuracy of Defendant’s prior record level worksheet, which

indicated that Defendant had amassed 19 felony sentencing points

and was therefore at a prior record level of VI for felony

sentencing purposes. Defendant’s prior convictions for

shoplifting and public disturbance were listed on the worksheet

as follows:
 -7-
Offenses File No. Class

. . . .

M – SHOPLIFTING 89CR3411 3

. . . .

M – PUBLIC DISTURBANCE 11CR60879 1
2
. . . .

On appeal, Defendant contends that the trial court should not

have assigned points to these misdemeanor convictions because,

as a matter of law, they are not Class A1 or Class 1

misdemeanors.3

At the outset, we note that Defendant’s prior conviction

for shoplifting is listed on Defendant’s worksheet as a Class 3

misdemeanor. Moreover, our criminal shoplifting statute

specifies the crime as a Class 3 misdemeanor. N.C. Gen. Stat. §

14-72.1(e) (2013) (“For a first conviction . . . or for a

subsequent conviction for which the punishment is not specified

by this subsection, the defendant shall be guilty of a Class 3

2
The worksheet also indicated the date of each conviction and
the county involved. This information has been edited out for
ease of interpretation.
3
A review of the worksheet and the trial court’s judgment
reveals that the trial court assigned 1 point for each of these
convictions.
 -8-
misdemeanor.”).4 Accordingly, it was error for the trial court

to assign one felony sentencing point for Defendant’s

shoplifting conviction, and the State concedes as much in its

brief before this Court. Nevertheless, the State contends that

this error is harmless because even if a point is deducted from

Defendant’s total (i.e., if Defendant’s prior record point total

drops from 19 to 18), Defendant would still be at a prior record

level of VI for felony sentencing purposes. The validity of the

State’s argument assumes that the trial court did not err in

assigning one point for Defendant’s public disturbance

conviction, a question we now consider.

Defendant contends that the trial court erred in assigning

one point for his prior public disturbance conviction because,

as a matter of law, a “public disturbance” is unambiguously a

Class 2 misdemeanor. Specifically, even though Defendant

stipulated to the accuracy of the prior record level worksheet,

which lists Defendant’s public disturbance conviction as a Class

1 misdemeanor, Defendant contends that his stipulation is not

binding and should have been corrected by the trial court. See

State v. Wingate, 213 N.C. App. 419, 420, 713 S.E. 2d 188, 189

(2011) (“Stipulations as to questions of law are generally held

4
There are no other prior shoplifting convictions listed on
Defendant’s worksheet.
 -9-
invalid and ineffective, and not binding upon the courts, either

trial or appellate.” (quotation marks and citations omitted)).

In support of his argument, Defendant directs our attention

to this Court’s decisions in Wingate and State v. Roseboro, ___

N.C. App. ___, 723 S.E.2d 583, 2012 WL 1308987 (2012)

(unpublished).5 In Wingate, the defendant stipulated that he had

been convicted of one count of “conspiracy to sell or deliver

cocaine” and two counts of “selling or delivering cocaine.”

Wingate, 213 N.C. App. at 420, 713 S.E.2d at 189. The defendant

further stipulated that these offenses were Class G felonies.

Id. On appeal, the defendant contended that

there was insufficient proof to establish
whether he had previously been convicted of
one count of conspiracy to sell cocaine and
two counts of selling cocaine, which are
Class G felonies, or whether he was
convicted of one count of conspiracy to
deliver and two counts of delivery of
cocaine, which are Class H felonies.

Id. at 420, 713 S.E.2d at 189–90. In reviewing the trial

court’s decision, we said:

Defendant asserts that whether he was
convicted of delivering cocaine or whether
he was convicted of selling cocaine was a
question of law, not fact, and, therefore,
his stipulation to the Class G felonies was

5
Roseboro is an unpublished decision of this Court and therefore
has no precedential value. Nevertheless, we consider Roseboro
as persuasive authority.
 -10-
invalid. We disagree and hold that, in this
case, the class of felony for which
defendant was previously convicted was a
question of fact, to which defendant could
stipulate, and was not a question of law
requiring resolution by the trial court.

Id. at 420, 713 S.E.2d at 190. Additionally, we noted that:

[t]he prior conviction worksheet expressly
sets forth the class of offense to which a
defendant stipulates and defendant in this
case has not cited to any authority, nor
have we found any, that requires the trial
court to ascertain, as a matter of law, the
class of each offense listed.

Defendant in the case at bar stipulated that
the three convictions at issue were Class G
felonies. The trial court could, therefore,
rely on this factual stipulation in making
its calculations and the State’s burden of
proof was met.

Id. at 421, 713 S.E.2d at 190.

In Roseboro, the defendant stipulated that he had

previously been convicted of “conspiracy to commit common law

robbery” and that this conviction was a Class G felony.

Roseboro, 2012 WL 1308987, at *1. On appeal, the defendant

contended 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.” Id.

Distinguishing Wingate, we said:

In Wingate the question before the Court was
whether defendant’s stipulation to the class
 -11-
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.

Id. at *2.

Consistent with Roseboro, Defendant contends that a “public

disturbance” unambiguously refers to the conduct prohibited by

N.C. Gen. Stat. § 14-288.4(a), which, as a matter of law, is a

Class 2 Misdemeanor. See N.C. Gen. Stat. § 14-288.4(b) (2011).6

6
Offenders under this version of the statute, which was in
effect when Defendant committed the offense for which he is
currently being sentenced, were guilty of a Class 2 misdemeanor
for a first offense irrespective of the particular subsection
implicated under N.C. Gen. Stat. § 14-288.4(a). Under the
current statute, offenders of N.C. Gen. Stat. § 14-288.4(a)(8)
are guilty of a Class 1 misdemeanor for the first offense. See
N.C. Gen. Stat. § 14-288.4(c) (2013). The older version of the
statute is cited here because “[i]n determining the prior record
level, the classification of a prior offense is the
classification assigned to that offense at the time the offense
 -12-
We disagree.

N.C. Gen. Stat. § 14-288.1(8) (2013) defines a “public

disturbance” as

[a]ny annoying, disturbing, or alarming act
or condition exceeding the bounds of social
toleration normal for the time and place in
question which occurs in a public place or
which occurs in, affects persons in, or is
likely to affect persons in a place to which
the public or a substantial group has
access.

As defined, the term is subsequently used to describe a riot in

N.C. Gen. Stat. § 14-288.2 (2013) and to describe various types

of disorderly conduct in N.C. Gen. Stat. § 14-288.4.7 Thus,

unlike conspiracy to commit common law robbery, a “public

disturbance” is an ambiguous label that could refer to multiple

types of criminal activity. Furthermore, while a person is

guilty of a Class 2 misdemeanor for disorderly conduct under

N.C. Gen. Stat. § 14-288.4, N.C. Gen. Stat. § 14-288.2(c) states

that “any person who willfully engages in a riot is guilty of a

Class 1 misdemeanor.”

Accordingly, Defendant’s stipulation in the present case is

more akin to the stipulation in Wingate than the stipulation in

for which the offender is being sentenced is committed.” N.C.
Gen. Stat. § 15A-1340.14(c).
7
Notably, N.C. Gen. Stat. § 14-288.4 is titled “Disorderly
conduct,” not “public disturbance.”
 -13-
Roseboro. Defendant has stipulated to an ambiguously labeled

crime and its punishment classification. Thus, consistent with

our decision in Wingate, “the class of [misdemeanor] for which

[D]efendant was previously convicted was a question of fact, to

which [D]efendant could stipulate, and was not a question of law

requiring resolution by the trial court.” Wingate, 213 N.C.

App. at 420, 713 S.E.2d at 190.

Finally, we note that on 19 September 2013, Defendant filed

a motion with this Court asking us to take judicial notice of a

certified copy of the judgment entered for his previous “public

disturbance” conviction in order to establish that the

conviction was for a violation of N.C. Gen. Stat. § 14-

288.4(a)(2).8 “[I]f requested by a party and supplied with the

necessary information,” this Court is required to take judicial

notice of an adjudicative fact that is “capable of accurate and

ready determination by resort to sources whose accuracy cannot

be reasonably questioned.” N.C. R. Evid. 201. A certified copy

of a court record is a source whose accuracy cannot be

reasonably questioned. Thus, we must take judicial notice of

8
Defendant has also requested that we take judicial notice of an
uncertified computer printout allegedly showing the record of
his previous shoplifting conviction as maintained by the
Administrative Office of the Courts.
 -14-
the information contained in Defendant’s judgment.9 See State v.

Thompson, 349 N.C. 483, 497, 508 S.E.2d 277, 286 (1998) (“This

Court may take judicial notice of the public records of other

courts within the state judicial system.”); State v. King, ___

N.C. App. ___, ___, 721 S.E.2d 327, 330 (2012) (taking judicial

notice of a certified public record signed by an assistant

clerk). The judgment, which matches the file number listed

beside “public disturbance” on the prior record level worksheet,

cites to N.C. Gen. Stat. § 14-288.4(a)(2) to describe

Defendant’s criminal conduct.

However, because this document was not presented to the

trial court, it cannot affect our review of the trial court’s

sentencing decision. In a similar context, we have stated that

[t]he Court of Appeals is not the proper
place for the introduction of evidence.
This Court is not a fact-finding court, and
will not consider evidence, documentary or
otherwise, that was not before the trial
court. To allow such evidence would lead to
interminable appeals and defeat the
fundamental roles of our trial and appellate
courts.

State v. Massey, 195 N.C. App. 423, 429, 672 S.E.2d 696, 699–700

(2009) (declining to consider a certified copy of the

9
We decline to judicially notice the computer printout detailing
Defendant’s shoplifting conviction. As an uncertified document,
its accuracy can be reasonably questioned.
 -15-
defendant’s criminal record in reviewing the trial court’s

sentencing decision). Accordingly, we find no reversible error

in the trial court’s sentencing decision. Although the trial

court mistakenly added a point for Defendant’s shoplifting

conviction, this error was harmless. Defendant stipulated that

the ambiguously labeled “public disturbance” conviction was a

Class 1 misdemeanor. Considering Defendant’s stipulation to

this question of fact, which was the only evidence before the

trial court, we hold that the trial court did not err in

assigning a felony sentencing point for Defendant’s “public

disturbance” conviction nor in setting Defendant’s prior record

level at VI.

B. Defendant’s Ineffective Assistance of Counsel Argument

Defendant contends that if the trial court did not err in

its sentencing decision, we should find on direct review that he

received ineffective assistance of counsel during the sentencing

phase of his trial. Specifically, Defendant contends that his

trial counsel stipulated to inaccurate information and, but for

the error, Defendant would have received a shorter sentence.

To prevail on an ineffective assistance of counsel claim,

a defendant must first show that his
counsel’s performance was deficient and then
that counsel’s deficient performance
prejudiced his defense. Deficient
 -16-
performance may be established by showing
that counsel’s representation fell below an
objective standard of reasonableness.
Generally, to establish prejudice, a
defendant must show that there is a
reasonable probability that, but for
counsel’s unprofessional errors, the result
of the proceeding would have been different.
A reasonable probability is a probability
sufficient to undermine confidence in the
outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286

(citations and quotation marks omitted), cert. denied, 549 U.S.

867 (2006). However,

[i]t is well established that ineffective
assistance of counsel claims “brought on
direct review will be decided on the merits
when the cold record reveals that no further
investigation is required, i.e., claims that
may be developed and argued without such
ancillary procedures as the appointment of
investigators or an evidentiary hearing.”
Thus, when this Court reviews ineffective
assistance of counsel claims on direct
appeal and determines that they have been
brought prematurely, we dismiss those claims
without prejudice, allowing defendant to
bring them pursuant to a subsequent motion
for appropriate relief in the trial court.

State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881

(2004) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d

500, 524 (2001)), cert. denied, 546 U.S. 830 (2005).

Here, the cold record reveals that further information is

required to review Defendant’s ineffective assistance of counsel
 -17-
claim. It is clear that an error was made with respect to

Defendant’s shoplifting conviction. This conviction is listed

on the prior record level worksheet as a Class 3 misdemeanor,

yet, defense counsel stipulated to a point total that included

one point for this conviction. Even so, further factual

development is needed concerning Defendant’s “public

disturbance” conviction. This conviction is listed as a Class 1

misdemeanor on the prior record level worksheet. The certified

judgment that we have judicially noticed also identifies this

conviction as a Class 1 misdemeanor. However, as previously

noted, the judgment also cites to N.C. Gen. Stat. § 14-

288.4(a)(2) to describe Defendant’s criminal conduct, which, as

a matter of law, is a Class 2 misdemeanor.10 See N.C. Gen. Stat.

§ 14-288.4(b). It is unclear on the current record whether

defense counsel looked at Defendant’s previous judgment, looked

up the statutory reference cited therein, or caught the

discrepancy. We believe that defense counsel should be given

the opportunity to explain why the stipulation was made and what

information was considered beforehand. Accordingly, we dismiss

Defendant’s ineffective assistance of counsel claim.

10
The discrepancy in the judgment between the cited criminal
conduct and the misdemeanor class level that was marked appears
to be a clerical error.
 -18-
IV. Conclusion

For the foregoing reasons, we find no error with the trial

court’s judgment and dismiss Defendant’s ineffective assistance

of counsel claim.

No error in part; dismissed in part.

Judges STROUD and DILLON concur.

Report per rule 30(e).