IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-767
Filed: 16 August 2016
Union County, No. 13 CRS 52761
STATE OF NORTH CAROLINA
v.
ANTRAVIOUS BRIGGS, Defendant.1
Appeal by Defendant from judgment and amended judgment entered 10
November 2014 and 30 January 2015 by Judge Christopher W. Bragg and Judge W.
David Lee, respectively, in Union County Superior Court. Heard in the Court of
Appeals 28 January 2016.
Attorney General Roy Cooper, by Assistant Attorney General Roberta A.
Ouellette, for the State.
New Hanover County Public Defender Jennifer Harjo, by Assistant Public
Defender Brendan O’Donnell, for Defendant-appellant.
INMAN, Judge.
Following a jury trial and conviction for attempted second degree sexual
offense, Antravious Q. Briggs (“Defendant”) was sentenced to an active term of 73 to
100 months in prison. Defendant gave oral notice of appeal on the day of his
sentencing. A few months later, outside of Defendant’s presence, the trial court
1 Defendant’s first name was misspelled in the original indictment, but the trial court granted
the State’s motion to amend to correct his name. Despite the amendment of the indictment, both the
judgment and amended judgment reflect the incorrect spelling of Defendant’s first name.
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Opinion of the Court
issued an amended judgment resentencing Defendant to a term of 73 to 148 months
in prison. Because the trial court resentenced Defendant outside of his presence,
resulting in a lengthier prison term, we vacate and remand for resentencing.
I. Background
The State’s evidence tended to show the following:
On 23 June 2013, CL2 was sexually assaulted by Defendant while she was
staying with her daughter in Monroe, North Carolina. The night before, CL and her
daughter had attended a cookout in the neighborhood that was also attended by
Defendant. CL and her daughter went home after attending the cookout and after
midnight, CL, who was sleeping on the couch in the living room, heard a knock at the
front door. She answered the door and saw Defendant, who pulled her close to him
and walked her to the edge of the porch. CL fell down and busted her lip, and while
she was lying on the ground on her stomach, Defendant pulled down her pants and
attempted to penetrate her anus with his penis about three or four times without
success. CL was trying to get up, and told him several times that he was hurting her.
Defendant eventually stopped and CL got up. CL hurried into the house. Defendant
then left. The attack resulted in rectal bleeding. At some point later, CL found
Defendant’s wallet at the location where the attack had occurred. CL’s daughter
called the police, and CL was taken to the hospital in a rescue squad vehicle.
2 We use initials for CL to protect the privacy of the victim.
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Opinion of the Court
Defendant was charged with second degree sexual offense. At trial, the trial
court granted Defendant’s motion to dismiss the charge of second degree sexual
offense but submitted to the jury the lesser included offense of attempted second
degree sexual offense. The jury found Defendant guilty of attempted second degree
sexual offense, a Class D felony.
At Defendant’s sentencing hearing, the State presented a prior record level
worksheet showing that Defendant had committed one prior felony: a drug offense in
South Carolina. The prior record level worksheet was signed by the prosecutor but
was not signed by Defendant or his counsel. The prosecutor explained to the trial
court that she had a copy of Defendant’s criminal history, but the record does not
show whether she provided that document to the trial court. The prosecutor did
provide to the trial court a copy of the relevant South Carolina statute and asserted
that the offense was “substantially similar” to a Class H or I felony offense in North
Carolina. In calculating Defendant’s prior record level, the trial court included the
prior felony, which added two points, found that Defendant was a prior record level
II, and sentenced him to an active term of 73 to 100 months in prison. Defendant
gave oral notice of appeal in open court following sentencing.
About one month later, the North Carolina Division of Adult Correction
(“DAC”) sent notice to the Superior Court of Union County that Defendant’s sentence
was erroneous because the maximum prison term did not correspond to the minimum
prison term. For a Class D felony sexual offense, the correct maximum term that
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Opinion of the Court
corresponds with a minimum of 73 months is 148 months. N.C. Gen. Stat. § 15A-
1340.17(f) (2015). Judge W. David Lee of the Union County Superior Court issued an
amended judgment in response to the DAC notice, resentencing Defendant outside of
his presence to a term of 73 to 148 months.
II. Analysis
A. Jurisdiction
Defendant did not give notice of appeal from the amended judgment following
the resentencing outside of his presence. The State does not address in its brief the
jurisdictional concern that Defendant has failed to give timely notice of appeal. We
elect to treat Defendant’s appellate brief as a petition for writ of certiorari for review
of the amended judgment and grant his petition. See N.C. R. App. P. 21 (2016); State
v. Jarman, 140 N.C. App. 198, 201, 535 S.E.2d 875, 878 (2000).
B. Resentencing Outside Defendant’s Presence
Defendant asserts that the trial court erred in amending Defendant’s sentence
outside of his presence. We agree. Defendant had a right to be present at sentencing
and the trial court prejudicially erred. We therefore remand for resentencing.
On appeal, this Court reviews de novo whether a defendant was improperly
sentenced outside his presence. State v. Arrington, 215 N.C. App. 161, 166, 714
S.E.2d 777, 781 (2011). “In every criminal prosecution it is the right of the accused
to be present throughout the trial, unless he waives the right.” State v. Pope, 257
N.C. 326, 330, 126 S.E.2d 126, 129 (1962). “It is well-settled that a defendant has a
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right to be present at the time that his sentence is imposed.” State v. Leaks, __ N.C.
App. __, __, 771 S.E.2d 795, 799 (2015).
In Leaks, the defendant was sentenced in court as a level V offender to a term
of 114 to 146 months active imprisonment, but the trial court later entered written
judgments, outside of the defendant’s presence, sentencing him to 114 to 149 months
active imprisonment. Id. at __, 771 S.E.2d at 799. The sentence reflected in the
written judgments was the one imposed upon the defendant. Id. at __, 771 S.E.2d at
799. This Court held that “[b]ecause the written judgments reflect a different
sentence than that which was imposed in defendant’s presence during sentencing, we
must vacate defendant’s sentence and remand for the entry of a new sentencing
judgment.” Id. at __, 771 S.E.2d at 800.
Here, Defendant was sentenced to 73 to 100 months imprisonment at the
sentencing hearing following Defendant’s trial. He was resentenced over two months
later to a term of 73 to 148 months outside of his presence. The amended written
judgment shows “a different sentence than that which was imposed in [D]efendant’s
presence.” Id. at __, 771 S.E.2d at 800. Therefore, like the Court in Leaks, we must
vacate Defendant’s sentence and remand for resentencing in Defendant’s presence.
The State argues that the trial court was simply correcting a mistake in
amending the judgment. It asserts that since Defendant was, in fact, present at the
sentencing hearing, the trial court’s correction of a mistake in the maximum term
was not error. We reject this argument. Regardless of whether the change in
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Opinion of the Court
Defendant’s sentence was merely correcting a mistake, the prison term ultimately
imposed upon Defendant was imposed outside Defendant’s presence and
substantially increased the maximum term. Such a change in the sentence “could
only be made in . . . Defendant’s presence, where he and/or his attorney would have
an opportunity to be heard.” State v. Crumbley, 135 N.C. App. 59, 67, 519 S.E.2d 94,
99 (1999).
C. Prior Record Level
Since we are remanding for resentencing, we also address Defendant’s other
issue related to sentencing. See State v. Midyette, 87 N.C. App. 199, 203, 360 S.E.2d
507, 509 (1987) (“Because it is necessary to remand this case for resentencing, we
deem it appropriate to briefly discuss defendant’s other assignment of error relating
to the sentencing hearing.”).
Defendant argues that the trial court erred when it sentenced him as a prior
record level II offender because there was insufficient evidence to support the prior
record level determination. We disagree.
“This Court reviews the calculation of a prior record level de novo.” State v.
Boyd, 207 N.C. App. 632, 642, 701 S.E.2d 255, 261 (2010). “This review is appropriate
even though no objection, exception, or motion has been made in the trial division.”
Id. (internal quotation marks omitted). For a trial court to calculate a defendant’s
prior record level, “ ‘[t]he 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
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Opinion of the Court
the same person as the offender named in the prior conviction.’ ” Id., 701 S.E.2d at
262 (quoting N.C. Gen. Stat. § 15A-1340(f)(2009)).
Under N.C. Gen. Stat. § 15A-1340.14(f) (2015), a prior conviction must be
proven by:
(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 Department of
Public Safety, the Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
“Our Court has repeatedly held that a prior record level worksheet, standing alone,
does not meet the State’s burden for establishing prior convictions under N.C.G.S. §
15A-1340.14(f).” State v. English, 171 N.C. App. 277, 280, 614 S.E.2d 405, 408 (2005).
“ ‘[T]he law requires more than the State’s unverified assertion that a defendant was
convicted of the prior crimes listed on a prior record level worksheet.’ ” Boyd, 207
N.C. App. at 643, 701 S.E.2d at 262 (quoting State v. Jeffrey, 167 N.C. App. 575, 579,
605 S.E.2d 672, 675 (2004)). “Stipulations do not require affirmative statements and
silence may be deemed assent in some circumstances, particularly if the defendant
had an opportunity to object, yet failed to do so.” State v. Hurley, 180 N.C. App. 680,
684, 637 S.E.2d 919, 923 (2006).
At the sentencing hearing, the State presented only a prior record level
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Opinion of the Court
worksheet that had not been signed by defense counsel to show Defendant’s prior
offense. Defense counsel admitted that he and Defendant had “reviewed the sheet[,]”
and later stated that “[t]he State is only alleging that prior felony conviction in South
Carolina.” Defendant argues that defense counsel’s statement that he had reviewed
the worksheet did not amount to tacit stipulation, and that defense counsel was
careful to only reference allegations about the prior conviction. Defendant contends
that the State did not meet its burden of proving the prior conviction. Defendant’s
argument is without merit.
This case is similar to Hurley. In Hurley, a prior record level worksheet was
introduced by the State and defense counsel did not object to it despite knowledge of
its contents. Id. at 684–85, 637 S.E.2d at 923. Defense counsel asked the trial court
for work release for the defendant. Id. at 684, 637 S.E.2d at 923. This Court held
that, “[w]hile the sentencing worksheet submitted by the State was alone insufficient
to establish [the] defendant’s prior record level, the conduct of [the] defendant’s
counsel during the course of the sentencing hearing constituted a stipulation of [the]
defendant’s prior convictions sufficient to meet the requirements of N.C. Gen. Stat. §
15A-1340.14(f).” Id. at 685, 637 S.E.2d at 923.
Here, defense counsel acknowledged reading the prior record level worksheet
submitted by the State and did not object to its inclusion of the prior South Carolina
conviction. Defense counsel asked that the trial court not sentence Defendant at the
top of the presumptive range, acknowledging that the State was alleging the prior
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Opinion of the Court
conviction as a basis for the sentencing range. Defendant argues that this case is
distinguishable from Hurley because defense counsel referred to the worksheet’s
“allegation” of the prior conviction, indicating that “he did not accept that allegation
as true.” However, regardless of whether defense counsel accepted the allegation as
true, he did not object to its inclusion and did not argue that the trial court should
sentence Defendant as a prior record level I offender. Here, as in Hurley, we hold
that defense counsel’s lack of objection despite the opportunity to do so constituted a
stipulation to Defendant’s prior felony conviction. See id.
III. Conclusion
For the foregoing reasons, we hold that the trial court prejudicially erred in
resentencing Defendant outside of his presence. Defendant’s sentence is vacated and
the case is remanded for resentencing.
VACATED and REMANDED.
Judges STEPHENS and HUNTER, JR. concur.
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