An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1279
Filed: 5 May 2015
STATE OF NORTH CAROLINA
Guilford County
v.
No. 13 CRS 68566
NICHOLAS JAMES SPRY
On writ of certiorari by defendant from judgment entered 25 November 2013
by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of
Appeals 17 April 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke
Haywood, for the State.
Russell J. Hollers III for defendant-appellant.
TYSON, Judge.
Nicholas James Spry (“Defendant”) appeals from judgment entered after he
pled guilty to possession of heroin. Defendant contends the trial court erred by
sentencing him as a prior record level III offender rather than as a prior record level
IV offender. We affirm.
I. Background
STATE V. SPRY
Opinion of the Court
Defendant pled guilty to possession of heroin, a Class I felony, on 7 November
2013. Defendant stipulated to the convictions listed on his prior record level
worksheet, that he had eight prior record level points, and that he had a prior record
level of III. The trial court accepted Defendant’s plea and sentenced him to 6 to 17
months in prison, suspended the sentence, and placed Defendant on supervised
probation for 36 months. One of the terms of Defendant’s probation was to submit to
electronic house arrest for no less than 18 months. On 8 November 2013, Defendant
submitted a written notice of appeal to the trial court, but appellate entries were not
entered at that time. On 3 April 2014, this Court allowed Defendant’s petition for
writ of certiorari to permit a belated appeal.
II. Issues
In his sole argument on appeal, Defendant contends the trial court erred by
relying on his stipulation to enter judgment based on a prior record level of III, when
there was evidence of another conviction that would have elevated his prior record
level to IV. Paradoxically, Defendant contends that increasing his prior record level
would have benefited him by making him eligible for an active term of imprisonment,
rather than an intermediate punishment, which would have been shorter than the
period of electronic house arrest imposed by the trial court. We disagree.
III. Standard of Review
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STATE V. SPRY
Opinion of the Court
The State bears the burden of proving the existence of a prior conviction by the
preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.14(f) (2013). One of the
methods of meeting that burden includes a stipulation by the parties. Id. “While a
stipulation need not follow any particular form, its terms must be definite and certain
in order to afford a basis for judicial decision, and it is essential that they be assented
to by the parties or those representing them.” State v. Alexander, 359 N.C. 824, 828,
616 S.E.2d 914, 917 (2005) (citations and internal quotation marks omitted). A
prosecutor has the discretion to choose which prior convictions he submits to be
included in a defendant’s prior record level calculation. State v. Mungo, 213 N.C. App.
400, 406, 713 S.E.2d 542, 546 (2011).
IV. Analysis
The trial court properly based its prior record level calculation on the parties’
stipulation. Defendant contends that counsel’s unsworn statements during the plea
hearing regarding an out-of-county offense constituted a stipulation, but we are not
persuaded. Although counsel did note the existence of the offense, he never made
any statement indicating that he intended to stipulate to its existence for the purpose
of calculating Defendant’s prior record level. Instead, it appears the State and
Defendant both omitted that offense from the prior record stipulation. The prosecutor
also acknowledged that he was aware of the offense but did not list it on the
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STATE V. SPRY
Opinion of the Court
worksheet. Neither party objected to the omission of the offense from Defendant’s
prior record level stipulation, and their silence supports the trial court’s reliance on
the written stipulation. Alexander, 359 N.C. at 828, 616 S.E.2d at 917.
Defendant cannot demonstrate prejudice from the omission of the offense from
his prior record level. Defendant contends that inclusion of the offense would elevate
his prior record level from a III to a IV, making him eligible for an active term of
imprisonment rather than an intermediate punishment. Defendant further contends
that his 18-month term of house arrest is longer than the 17-month term of
imprisonment he could have received as an active punishment.
V. Conclusion
Although Defendant may be unhappy with electronic house arrest, he cannot
reasonably claim he was prejudiced by the imposition of an intermediate punishment
based on a lower prior record level rather than an active prison term based on a
greater prior record level.
Presuming arguendo, Defendant should have been sentenced with a prior
record level of IV, he was still eligible to be sentenced to an intermediate punishment.
Defendant’s calculation of his potential active sentence as a level IV offender is in
error. Defendant could have received an active term of imprisonment longer than the
18-month term of house arrest. See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2013) (in the
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STATE V. SPRY
Opinion of the Court
presumptive range, Defendant could have received a 19-month maximum). The trial
court’s judgment is affirmed.
AFFIRMED.
Judges BRYANT and DIETZ concur.
Report per Rule 30(e).
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