IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-10
Filed: 16 August 2016
Columbus County, Nos. 12 CRS 52444-45, 13 CRS 213
STATE OF NORTH CAROLINA, Plaintiff,
v.
LESLIE W. JESTER, Defendant.
Appeal by defendant from judgments entered 20 May 2015 by Judge Reuben
F. Young in Columbus County Superior Court. Heard in the Court of Appeals 9 June
2016.
Attorney General Roy Cooper, by Assistant Attorney General M. Denise
Stanford, for the State.
Kimberly P. Hoppin for defendant-appellant.
ZACHARY, Judge.
Leslie Jester (defendant) appeals from judgments entered upon his convictions
for possession of stolen property, obtaining property by false pretenses, and having
attained the status of an habitual felon. On appeal, defendant argues that the trial
court erred by sentencing him as an habitual felon, by failing to correctly calculate
his prior criminal record level, and by denying his motion to dismiss the charges of
obtaining property by false pretenses and possession of stolen goods. Defendant also
contends that he received ineffective assistance of counsel. We find no error in
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Opinion of the Court
defendant’s convictions for possession of stolen goods and obtaining property by false
pretenses, or in the trial court’s calculation of defendant’s prior criminal record level.
We conclude that the trial court erred by sentencing defendant as an habitual felon
and vacate and remand for resentencing. We dismiss defendant’s claim of ineffective
assistance of counsel without prejudice to his right to file a motion for appropriate
relief in the trial court.
I. Factual and Procedural Background
Craig Whaley is the owner of a building where he stored farming equipment
and metal tools. On 31 July 2012, Mr. Whaley discovered that a large number of
items were missing from the building. The next day Mr. Whaley located his missing
property on the premises of Metal Recyclers of Whiteville (“Metal Recyclers”), a
business that purchases scrap metal. Mr. Whaley testified that the total value of his
property that was found at Metal Recyclers was in excess of $1000.00.
Josh Holcomb, who was employed by Metal Recyclers in July 2012, testified
that defendant came to Metal Recyclers on 31 July 2012, with metal items to sell.
Metal Recyclers weighed and photographed the items, photographed defendant,
copied defendant’s driver’s license, and took defendant’s index finger fingerprint. In
addition, defendant signed a document certifying that he was the owner of the items
and acknowledging that he was being paid $114.00 for approximately 1200 pounds of
steel equipment.
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Detective Rene Trevino of the Chadbourn Police Department testified that he
was employed as a detective with the Columbus County Sheriff’s Department in 2012.
On 1 August 2012, Mr. Whaley reported to the Sheriff’s Department that he had
found stolen property belonging to him at Metal Recyclers. Detective Trevino
obtained information identifying defendant as the person who had sold the items to
Metal Recyclers. When defendant returned to Metal Recyclers later that day, he
agreed to accompany Detective Trevino to the law enforcement center, where
defendant waived his Miranda rights and gave a statement. Defendant told Detective
Trevino that he had obtained the metal items from a white male. However, defendant
was unable to provide the name of this person, did not affirmatively state that he had
purchased the items from this man, and did not produce a receipt for any of the items.
After speaking with defendant, Detective Trevino arrested defendant on charges of
felony larceny and obtaining property by false pretenses.
On 6 February 2013, defendant was indicted for possession of stolen property
and obtaining property by false pretenses, and on 13 March 2013, defendant was
indicted for having attained the status of an habitual felon. Defendant was tried
before a jury at the 18 May 2015 criminal session of Columbus County Superior
Court. On 20 May 2015, the jury returned verdicts finding defendant guilty of
possession of stolen goods and obtaining property by false pretenses. Based on
defendant’s stipulation to having the status of an habitual felon, the trial court
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sentenced defendant to two consecutive prison sentences of 120 to 156 months.
Defendant filed pro se notices of appeal on 22 May 2015 and 2 June 2015. Defendant’s
filings were procedurally defective, and on 15 March 2016, defendant’s appellate
counsel filed a petition for a writ of certiorari in order to obtain review of the merits
of defendant’s appeal. In our discretion, we grant defendant’s petition for certiorari,
and proceed to address the issues raised by defendant on appeal.
II. Sentencing Defendant as an Habitual Felon
Defendant argues first that the trial court erred by sentencing him as an
habitual felon where the record does not show that his status as an habitual felon
was submitted to the jury or that he entered a plea of guilty to having the status of
an habitual felon. We agree.
“A court may accept a guilty plea only if it is ‘made knowingly and voluntarily.’
A plea is voluntarily and knowingly made if the defendant is made fully aware of the
direct consequences of his plea.” State v. Russell, 153 N.C. App. 508, 511, 570 S.E.2d
245, 248 (2002) (quoting State v. Wilkins, 131 N.C. App. 220, 224, 506 S.E.2d 274, 277
(1998) (citing Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709
(1969)). This requirement is codified in Chapter 15A of the General Statutes, which
provides in relevant part that a trial judge “may not accept a plea of guilty or no
contest from the defendant without first addressing him personally” and:
(1) Informing him that he has a right to remain silent and
that any statement he makes may be used against him;
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Opinion of the Court
(2) Determining that he understands the nature of the
charge;
(3) Informing him that he has a right to plead not guilty;
(4) Informing him that by his plea he waives his right to
trial by jury and his right to be confronted by the witnesses
against him;
(5) Determining that the defendant, if represented by
counsel, is satisfied with his representation; [and]
(6) Informing him of the maximum possible sentence on the
charge for the class of offense for which the defendant is
being sentenced, including that possible from consecutive
sentences, and of the mandatory minimum sentence, if
any, on the charge. . . .
N.C. Gen. Stat. § 15A-1022(a) (2015). Proceedings to determine whether a criminal
defendant has the status of an habitual felon “shall be as if the issue of habitual felon
were a principal charge.” N.C. Gen. Stat. § 14-7.5 (2015). Accordingly, a trial court
may not accept a defendant’s plea of guilty to having the status of an habitual felon
without complying with the requirements of N.C. Gen. Stat. § 15A-1022. See, e.g.,
State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001) (holding that the trial
court was required to comply with N.C. Gen. Stat. § 15A-1022 before accepting the
defendant’s plea to having attained the status of an habitual felon).
In the present case, defendant argues that the trial court erred by sentencing
him as an habitual felon without personally addressing him to make the inquiries
required by N.C. Gen. Stat. § 15A-1022, having defendant execute a transcript of plea,
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Opinion of the Court
or otherwise creating a record that defendant’s plea was knowingly and voluntarily
entered. Defendant cites Gilmore, in which we held that a defendant’s stipulation,
without more, does not establish a plea of guilty. In Gilmore, as in the instant case,
the defendant stipulated to his status as an habitual felon, based upon his convictions
for the predicate offenses. The trial court sentenced the defendant as an habitual
felon based on his stipulation, without conducting a colloquy addressing the
requirements of N.C. Gen. Stat. § 15A-1022 or having the defendant execute a plea
transcript. We held that:
In this case, the record shows Defendant stipulated to the
three prior convictions alleged by the State, pursuant to
N.C. Gen. Stat. § 14-7.4. . . . The issue of whether
Defendant was an habitual felon, however, was not
submitted to the jury, and Defendant did not plead guilty
to being an habitual felon. Although Defendant did
stipulate to his habitual felon status, such stipulation, in
the absence of an inquiry by the trial court to establish a
record of a guilty plea, is not tantamount to a guilty plea. .
. . [See] N.C.G.S. § 15A-1022(a) (trial court may not accept
guilty plea without first addressing defendant personally
and making inquiries of defendant as required by this
statute). Accordingly, Defendant’s habitual felon
conviction is reversed and remanded. (emphasis added).
Gilmore, 142 N.C. App. at 471-72, 542 S.E.2d at 699. In this case, as in Gilmore, the
defendant stipulated to his status as an habitual felon and to his prior convictions for
the predicate felonies, as indicated in the following dialogue between defendant and
the trial court:
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Opinion of the Court
THE COURT: All right. Madam Court Reporter, we are
back on the record in Mr. Jester’s case. And as I understand
it, Mr. Williamson, your client is - has agreed to stipulate
to his status as a habitual felon. Is that correct?
MR. WILLIAMSON: Your Honor, in an effort to expedite
things, . . . [Mr. Jester] is prepared to stipulate and to - take
his medicine as we would say.
THE COURT: Is that correct, Mr. Jester?
MR. JESTER: [Nods affirmatively].
THE COURT: Okay. All right. Gentlemen, thank you, very
much. We are ready to proceed with sentencing in this case.
And Mr. McGee, the Court will hear from the State.
...
THE COURT: All right. Thank you, very much. Mr. Jester,
you understand, do you not, that you have been indicted as
a habitual felon with regard to this case? You understand
that?
MR. JESTER: Yes, sir. I do.
THE COURT: You also understand that you are admitting
to the convictions that have been recited in the record
based on the indictment that has been handed down? You
understand that?
MR. JESTER: Yes, sir, Your Honor.
THE COURT: Do you also stipulate, sir, that these
convictions are true and accurate?
MR. JESTER: Yes, sir.
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Opinion of the Court
THE COURT: Do you also stipulate, sir, that, based on
these convictions, that you are indeed of a habitual felon
status?
MR. JESTER: Yes, sir, I do.
THE COURT: All right. And you also understand, do you
not, sir, that, because of your status as a habitual felon,
that your exposure with regard to the offense for which you
have just been found guilty of by the jury that your
sentence exposure increases with regard to your admitting
or stipulating to being a habitual felon?
MR. JESTER: Yes, sir.
THE COURT: All right. And so you are hereby for the
record agreeing and thereby stipulating that you are a
habitual felon for purposes of sentencing in these two
cases. Is that correct?
MR. JESTER: Yes, sir.
THE COURT: Okay. All right. Thank you, very much. You
may have a seat. And Mr. McGee, you may proceed.
We conclude that this dialogue failed to comply with any of the requirements
of N.C. Gen. Stat. § 15A-1022. Specifically, we note that:
1. Although the trial court personally addressed defendant,
the court did not make any of the inquiries required by N.C.
Gen. Stat. § 15A-1022.
2. The trial court did not inform defendant that he had a
right not to plead guilty to being an habitual felon.
3. The trial court did not inform defendant that by pleading
guilty to having the status of an habitual felon, he was
waiving his constitutional rights to have the charge
determined by a jury and to cross-examine witnesses.
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Opinion of the Court
4. The court did not inform defendant of the minimum and
maximum sentence that he might receive, or the felony
class under which he would be sentenced as an habitual
felon.
5. The court did not determine whether defendant was
satisfied with his court-appointed counsel.
6. The trial court did not state on the record that defendant
was entering a plea of guilty, did not ask defendant if he
was entering a plea of guilty, and did not have defendant
execute a transcript of plea under oath.
We conclude that this case is functionally indistinguishable from Gilmore, in
that the record fails to establish either that defendant entered a plea of guilty to
having the status of an habitual felon, or that the trial court complied with the
requirements of N.C. Gen. Stat. § 15A-1022. As a result, we vacate defendant’s
conviction for being an habitual felon and remand for a new sentencing hearing.
In reaching this conclusion, we have considered the State’s arguments for a
contrary result. The State argues the trial court’s “failure to strictly comply with the
provisions of N.C. Gen. Stat. § 15A-1022 is not reversible error per se, but must be
evaluated upon a prejudice analysis.” In support of this position, the State directs
our attention to cases in which the record showed a relatively minor or technical
omission from the requirements of N.C. Gen. Stat. § 15A-1022.
It is true that where the record establishes, whether through a trial court’s
colloquy with a defendant or through the defendant’s execution of a plea transcript,
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Opinion of the Court
that the defendant was fully informed of his rights as required by N.C. Gen. Stat. §
15A-1022, we have required the defendant to establish that an insignificant or
technical error by the trial court was prejudicial. For example, in State v. McNeill,
158 N.C. App. 96, 580 S.E.2d 27 (2003), the record established that the defendant
signed a plea transcript, was asked under oath by the trial court whether he
understood the consequences of his plea of guilty, was informed of his rights, and was
told the class of felony applicable to his sentences as well as the maximum number of
months to which he could be sentenced for each offense. The defendant argued on
appeal that the trial court had failed to comply with N.C. Gen. Stat. § 15A-1022, on
the grounds that the court had not specified that if the defendant were sentenced to
consecutive terms of imprisonment, he would receive a longer sentence than the
maximum for each offense. We held that although the trial court’s omission “was
neither ideal nor preferable,” the defendant had failed to establish prejudice.
McNeill, 158 N.C. App. at 105, 580 S.E.2d at 32.
In contrast, in Gilmore and similar cases, we have held that where there is no
record of a valid plea of guilty, either from the trial court’s questioning the defendant
in accordance with N.C. Gen. Stat. § 15A-1022 or by means of a properly executed
plea transcript, the plea must be vacated and the defendant resentenced. In such
cases we have not required the defendant to produce evidence that he was prejudiced
beyond the prejudice inherent in the court’s failure to ensure that the defendant’s
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Opinion of the Court
plea was knowingly and voluntarily entered. The present case, like Gilmore, is one
in which there is no record that the requirements of N.C. Gen. Stat. § 15A-1022 were
met. Thus:
We acknowledge the State’s argument, based on this
Court’s decision in State v. Hendricks, 138 N.C. App. 668,
531 S.E.2d 896, (2000), that where a defendant simply
alleges technical non-compliance with G.S. § 15A-1022, but
fails to show resulting prejudice, vacation of the plea is not
required. However, in Hendricks, although the record
failed to establish that the trial court itself personally
addressed defendant as to all statutory factors as required
by the statute, the record indicated the trial court did make
some of the required inquiries, and further, the transcript
of plea between the State and the defendant “covered all
the areas omitted by the trial judge.” . . . In contrast, in this
case, there is no indication in the record of compliance, even
in part, with G.S. § 15A-1022[.] . . . [N]or does the record
contain any transcript of plea[.] . . . We believe such an
absence constitutes more than mere “technical” non-
compliance, and is sufficient to establish prejudice to
defendant.
State v. Glover, 156 N.C. App. 139, 146-47, 575 S.E.2d 835, 839-40 (2003) (emphasis
added) (quoting State v. Hendricks, 138 N.C. App. 668, 669-70, 531 S.E.2d 896, 898
(2000)). Accordingly, we conclude that defendant is entitled to a new sentencing
hearing.
III. Sentencing Defendant as a Prior Record Level IV
Defendant argues next that the trial court erred by sentencing defendant as a
prior record level IV, on the grounds that the State failed to present sufficient
evidence to support this classification. We disagree.
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The Structured Sentencing Act requires that the trial court determine a
defendant’s prior record level pursuant to N.C. Gen. Stat. § 15A-1340.14 before
sentencing a defendant for a felony conviction. Prior convictions may 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.
N.C. Gen. Stat. § 15A-1340.14(f) (2015). This statute also provides that 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.” Defendant maintains that the State failed
to meet this burden because it offered only a worksheet as evidence of defendant’s
prior criminal record. Defendant’s argument is ill-founded.
It is well established that defense counsel may be deemed to have stipulated
to the worksheet of a defendant’s prior convictions by counsel’s failure to dispute or
object to the worksheet coupled with counsel’s use of the worksheet in his argument:
[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
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Opinion of the Court
establishing proof of prior convictions. Thus, the question
here is whether the comments by defendant’s attorney
constitute a ‘stipulation’ to the prior convictions listed on
the worksheet submitted by the State.
State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002) (citing State v.
Hanton, 140 N.C. App. 679, 689, 540 S.E.2d 376, 382 (2000)).
In this case, during the sentencing hearing, the prosecutor stated the following:
PROSECUTOR: Judge, in regard to sentencing, Mr. Jester
is going to - I’m about to submit the worksheet which shows
he’s got 19 points for sentencing purposes, Your Honor.
He’s going to be a level six.
His prior convictions, Judge, prior possession of stolen
goods, a second-degree burglary, unauthorized use of a
motor vehicle, simple possession of schedule IV controlled
substance, assault by strangulation, B and E, three
separate DWI’s, an additional second-degree burglary, as
well as a communicating threats. Mr. Jester has a lengthy
criminal record, one that consists of similar crimes for
which he has been charged with today and convicted of,
spanning from 1982 forward to today. . . .
“[C]ounsel need not affirmatively state what a defendant’s prior record level is
for a stipulation with respect to that defendant’s prior record level to occur.” State v.
Alexander, 359 N.C. 824, 830, 616 S.E.2d 914, 918 (2005). In Alexander, our Supreme
Court stated the following:
Here, defense counsel did not expressly state that he had
seen the prior record level worksheet; however, we find it
telling that he specifically directed the trial court to refer
to the worksheet to establish that defendant had no prior
felony convictions. Defense counsel specifically stated that
“up until this particular case he had no felony convictions,
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Opinion of the Court
as you can see from his worksheet.” This statement
indicates not only that defense counsel was cognizant of the
contents of the worksheet, but also that he had no
objections to it. Defendant, by arguing that his trial counsel
did not stipulate to his previous misdemeanor conviction,
simply seeks to have his cake and eat it too. If defense
counsel’s affirmative statement with respect to defendant’s
lack of previous felony convictions was proper, then so too
was the implicit statement that defendant’s previous
misdemeanor convictions were properly reflected on the
worksheet in question.
Similarly, in State v. Cromartie, 177 N.C. App. 73, 81, 627 S.E.2d 677, 682-83
(2006), we discussed Alexander and held that:
[T]rial counsel acknowledged the worksheet by making
specific reference to it. . . . Then counsel proceeded to use
the information contained in the worksheet to minimize
defendant’s prior record as being ‘nonviolent.’ Finally, at
no time did trial counsel dispute any of the convictions on
the worksheet. As our Supreme Court held in Alexander,
defendant cannot “have his cake and eat it too.” Defendant
cannot use the worksheet during his sentencing hearing to
seek a lesser sentence and then have his appellate counsel
disavow this conduct on appeal in order to obtain a new
sentencing hearing.
(quoting Alexander, 359 N.C. at 830, 616 S.E.2d at 918, and citing Eubanks, 151 N.C.
App. at 506, 565 S.E.2d at 743). In the instant case, as in Alexander and Cromartie,
defendant’s counsel did not dispute the prosecutor’s description of defendant’s prior
record, or raise any objection to the contents of the proffered worksheet. In addition,
defense counsel referred to defendant’s record during his sentencing argument:
DEFENSE COUNSEL: Your Honor, if I could just briefly.
I forgot to mention this. And this was something with Mr.
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Opinion of the Court
Jester, his point of contention has always been - and this
is his first trial. You see his record level? He has always
stood up and taken accountability for the things he has
done. As such, this is his first trial. He has always, by his
contention, admitted and taken responsibility for his
actions. This is the first time, and he still contends that he
is not guilty of this, but he has always been accountable.
And you can see from his record he hasn’t committed any
crimes within the - ‘06 was his last conviction, as far as I
can tell. As such, he’s been a good boy, and I would ask
Your Honor to take that into consideration.
(emphasis added). We conclude, pursuant to the holdings in Alexander and
Cromartie, that defendant stipulated to the prior record as stated on the worksheet.
Defendant also contends that the trial court erred by assigning points to three
out-of-state convictions in defendant’s criminal record. N.C. Gen. Stat. § 15A-
1340.14(e) (2015) provides in relevant part that:
Except as otherwise provided in this subsection, a
conviction occurring in a jurisdiction other than North
Carolina is classified as a Class I felony if the jurisdiction
in which the offense occurred classifies the offense as a
felony, or is classified as a Class 3 misdemeanor if the
jurisdiction in which the offense occurred classifies the
offense as a misdemeanor. . . . If the State proves by the
preponderance of the evidence that an offense classified as
either a misdemeanor or a felony in the other jurisdiction
is substantially similar to an offense in North Carolina that
is classified as a Class I felony or higher, the conviction is
treated as that class of felony for assigning prior record
level points. . . .
In this case, defendant challenges the trial court’s calculation of prior record
points assigned to three convictions from South Carolina for DWI, breaking and
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Opinion of the Court
entering, and second-degree burglary. The convictions for breaking and entering and
for second-degree burglary were treated as Class I felonies and assigned two points
each. On appeal, defendant argues that the State was required to offer proof that
breaking and entering and second-degree burglary are classified as felonies in South
Carolina. As discussed above, we have held that defendant stipulated to the accuracy
of the worksheet offered by the prosecutor, which includes the points assigned to the
offenses. In State v. Hinton, 196 N.C. App. 750, 675 S.E.2d 672 (2009), we held that
if a defendant stipulates to his prior record and the prosecutor does not seek to assign
a classification higher than the default Class I, the State is not required to prove that
the out-of-state offenses correspond to equivalent North Carolina offenses:
A sentencing worksheet coupled with statements by
counsel may constitute a stipulation to the existence of the
prior convictions listed therein. In this case, Defendant
argues that the trial court’s calculation of his prior record
level was not supported by sufficient evidence to show that
his out-of-state convictions were “substantially similar” to
North Carolina offenses. Because Defendant’s assertions at
trial and failure to object to the sentencing worksheet
constituted a stipulation to the existence of his prior
convictions, we affirm his sentence. . . .
...
According to the statute, the default classification for out-
of-state felony convictions is “Class I.” Where the State
seeks to assign an out-of-state conviction a more serious
classification than the default Class I status, it is required
to prove “by the preponderance of the evidence” that the
conviction at issue is “substantially similar” to a
corresponding North Carolina felony. However, where the
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State classifies an out-of-state conviction as a Class I
felony, no such demonstration is required.
Hinton, 196 N.C. App. at 751, 754-55, 675 S.E.2d at 673, 675. We hold that because
defendant stipulated to his prior record and the prosecutor did not seek to assign a
classification more serious than Class I to his out-of-state convictions for second-
degree burglary and breaking and entering, the State was not required to offer proof
that these offenses were considered felonies in South Carolina or that they were
substantially similar to specific North Carolina felonies.
Regarding the South Carolina DWI conviction, defendant argues that in the
absence of proof that this offense was substantially similar to a North Carolina
offense, the conviction should have been classified as a Class 3 misdemeanor with no
points assigned to defendant’s criminal record level. Assuming that defendant is
correct, this would have resulted in defendant’s having eighteen prior record points
instead of nineteen points, and defendant would nonetheless have been classified as
a Level VI offender. As a result, defendant has failed to establish prejudice arising
from any error in classification of the South Carolina DWI conviction.
Defendant also maintains that the trial court erred by assigning prior record
points to two convictions that the record indicated were obtained on the same day.
Defendant concedes that this situation is not a factual impossibility, and we again
note that defendant stipulated to his prior record. We conclude that the trial court
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Opinion of the Court
did not err in its calculation of defendant’s prior record level and that defendant is
not entitled to relief based on this argument.
IV. Denial of Defendant’s Motion to Dismiss
Defendant argues next that the trial court erred by denying defendant’s motion
to dismiss the charges against him, on the grounds that the State failed to present
sufficient evidence to submit the charges to the jury. We disagree.
The standard of review regarding motions to dismiss is well settled:
“When reviewing a defendant’s motion to dismiss a charge
on the basis of insufficiency of the evidence, this Court
determines whether the State presented substantial
evidence in support of each element of the charged offense.
Substantial evidence is relevant evidence that a reasonable
person might accept as adequate, or would consider
necessary to support a particular conclusion. In this
determination, all evidence is considered in the light most
favorable to the State, and the State receives the benefit of
every reasonable inference supported by that evidence. . . .
[I]f there is substantial evidence - whether direct,
circumstantial, or both - to support a finding that the
offense charged has been committed and that the
defendant committed it, the case is for the jury and the
motion to dismiss should be denied.”
State v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012) (quoting State v. Abshire,
363 N.C. 322, 327-28, 677 S.E.2d 444, 449 (2009)).
We first consider defendant’s challenge to the evidence of possession of stolen
property. N.C. Gen. Stat. § 14-71.1 (2015) provides in relevant part that:
If any person shall possess any chattel, property, money,
valuable security or other thing whatsoever, the stealing or
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Opinion of the Court
taking whereof amounts to larceny or a felony, either at
common law or by virtue of any statute made or hereafter
to be made, such person knowing or having reasonable
grounds to believe the same to have been feloniously stolen
or taken, he shall be guilty of a Class H felony. . . .
The elements of the crime of possession of stolen goods are: “(1) possession of
personal property; (2) which has been stolen; (3) the possessor knowing or having
reasonable grounds to believe the property to have been stolen; and (4) the possessor
acting with a dishonest purpose.” State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810,
815 (1982). In this case, defendant challenges the sufficiency only of the evidence
that he knew or had reasonable grounds to believe that the metal items were stolen.
“Whether the defendant knew or had reasonable grounds to believe that . . .
[property was] stolen must necessarily be proved through inferences drawn from the
evidence.” State v. Brown, 85 N.C. App. 583, 589, 355 S.E.2d 225, 229 (1987) (citation
omitted). “Our Supreme Court has held the legislature intended for the ‘reasonable
man’ standard to apply to the offense of possession of stolen goods.” State v. Weakley,
176 N.C. App. 642, 652, 627 S.E.2d 315, 321 (2006) (citing State v. Parker, 316 N.C.
295, 304, 341 S.E.2d 555, 560 (1986)). “The fact that a defendant is willing to sell
property for a fraction of its value is sufficient to give rise to an inference that he
knew, or had reasonable grounds to believe, that the property was stolen.” Brown,
85 N.C. App. at 589, 355 S.E.2d at 229.
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In this case, the evidence tended to show that defendant was in possession of
stolen property valued at more than $1000.00, which he sold for only $114.00.
Although defendant told Detective Trevino that he obtained the stolen property from
a “white man,” he could not provide the man’s name. Defendant did not specifically
tell Detective Trevino that he bought the items from this unidentified man, and did
not produce a receipt. We hold that these circumstances were sufficient to allow the
jury to determine whether defendant knew or had reasonable grounds to know that
the metal items were stolen.
Defendant also challenges the sufficiency of the evidence that he obtained
property by false pretenses. N.C. Gen. Stat. § 14-100(a) (2015) provides in pertinent
part that a person is guilty of the felony of obtaining property by false pretenses if he
shall “by means of any kind of false pretense . . . obtain or attempt to obtain from any
person within this State any . . . property . . . with intent to cheat or defraud any
person of such [property]. . . . ” Defendant argues that because there was no evidence
that he knew or had reasonable grounds to believe that the metal items he sold were
stolen, there was no basis for the jury to find that defendant’s representation that he
was authorized to sell the items was false. For the reasons discussed above, we
conclude that there was sufficient evidence that defendant knew or had reasonable
grounds to believe that the items were stolen, and that the trial court did not err by
denying defendant’s motion to dismiss this charge.
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STATE V. JESTER
Opinion of the Court
V. Ineffective Assistance of Counsel
Finally, defendant argues:
Should this Court determine that trial counsel’s brief
comments at the sentencing hearing constitute a
stipulation to Mr. Jester’s prior record despite insufficient
proof and no indication of Mr. Jester’s assent, then Mr.
Jester contends that he received ineffective assistance of
counsel in his counsel’s failure to challenge the insufficient
proof of his prior convictions.
Defendant is thus arguing that his counsel was ineffective for stipulating to
the accuracy of the worksheet setting out his criminal record instead of challenging
the proof of his prior convictions. “When raising claims of ineffective assistance of
counsel, the ‘accepted practice’ is to bring these claims in post-conviction proceedings,
rather than on direct appeal. . . . To best resolve this issue, an evidentiary hearing
available through a motion for appropriate relief is our suggested mechanism.” State
v. Dinan, 233 N.C. App. 694, 700, 757 S.E.2d 481, 486-87 (quoting State v. Dockery,
78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985)), disc. review denied, 367 N.C. 522,
762 S.E.2d 203 (2014). We dismiss this issue without prejudice to defendant’s right
to raise it in a motion for appropriate relief in the trial court.
VI. Conclusion
For the reasons discussed above, we conclude that defendant received a fair
trial free of reversible error as to his convictions for possession of stolen property and
obtaining property by false pretenses, as well as the calculation of his prior criminal
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STATE V. JESTER
Opinion of the Court
record level. We conclude that the trial court erred in sentencing defendant as an
habitual felon and vacate the judgment and remand for resentencing. We dismiss
defendant’s claim of ineffective assistance of counsel without prejudice to defendant’s
right to file a motion for appropriate relief in the trial court.
NO ERROR IN PART, VACATED IN PART AND REMANDED FOR
RESENTENCING, AND DISMISSED WITHOUT PREJUDICE IN PART.
Judge STEPHENS and Judge McCULLOUGH concur.
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