IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-175
Filed: 6 November 2018
Wake County, No. 16-CRS-203096
STATE OF NORTH CAROLINA
v.
TEMAN TAVOI MCNEIL, Defendant.
Appeal by Defendant from judgments entered 21 August 2017 by Judge A.
Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 19
September 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General John H.
Schaeffer, for the State.
Vitrano Law Offices, PLLC, by Sean P. Vitrano, for defendant-appellant.
MURPHY, Judge.
In criminal prosecutions, the State bears the burden of proving a defendant’s
prior record level. Since 2014, our General Assembly has distinguished possession of
marijuana paraphernalia, a Class 3 misdemeanor, from possession of paraphernalia
related to other drugs, a Class 1 misdemeanor. Where the State fails to prove a pre-
2014 possession of paraphernalia conviction was for non-marijuana paraphernalia, a
trial court errs in treating the conviction as a Class 1 misdemeanor. Upon careful
review, we conclude the State failed to meet its burden to prove Defendant Teman
Tavoi McNeil’s 2012 “possession of drug paraphernalia” conviction was related to a
STATE V. MCNEIL
Opinion of the Court
drug other than marijuana, and remand this case for resentencing at the appropriate
prior record level.
BACKGROUND
On 21 August 2017, Defendant, Teman Tavoi McNeil, was convicted of Non-
Felonious Breaking or Entering, Felonious Larceny, and Felonious Possession of
Goods Stolen Pursuant to a Breaking or Entering. During sentencing, the State
argued Defendant was a prior record Level V with 14 points for felony sentencing
purposes. Defendant did not stipulate to any of the underlying convictions or to his
prior record level. The sole evidence the State presented at Defendant’s sentencing
hearing was a certified copy of his DCI Computerized Criminal History Report. The
DCI Report lists all of Defendant’s prior convictions, including the date, disposition,
and docket number for each of Defendant’s previous offenses. One listed offense is a
2012 conviction for Possession of Drug Paraphernalia in violation of N.C.G.S. § 90-
113.22.
After hearing from both parties and reviewing Defendant’s DCI Report, the
Superior Court determined Defendant had 14 prior record points. This calculus
included one point for Defendant’s 2012 paraphernalia conviction, which the court
calculated as a Class 1 misdemeanor. Consequently, the trial court assigned
Defendant a prior record Level V, and sentenced him to an active sentence at the top
of the aggravated range of 19 to 32 months imprisonment for felonious larceny. Had
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Opinion of the Court
Defendant been sentenced with only 13 points, he would have been assigned a prior
record Level IV and his maximum sentence for this class of felony would have been
an active sentence of 14 to 26 months. N.C.G.S. § 15A-1340.17(c)-(d) (2017).
ANALYSIS
The specific issue that we address for the first time in a published opinion1
here is whether Defendant’s 2012 conviction for possession of drug paraphernalia was
correctly treated as a Class 1 misdemeanor for prior record level purposes. “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), disc. review denied, 28 January 2010 Order (not published), 691 S.E.2d
414 (Mem) (2010). Additionally, “it is not necessary that an objection be lodged at the
sentencing hearing” in order for the claim to be preserved for appeal. Id. The
paraphernalia charge in question was counted as a Class 1 misdemeanor, but
Defendant argues it should have been counted as a Class 3 misdemeanor and
therefore excluded from his prior record level calculus. N.C.G.S. § 15A-1340.14(b)(5)
(2017). We find Defendant’s argument persuasive and remand for a new sentencing
hearing with a prior record Level IV.
1See State v. Dent, No. COA17-857, 811 S.E.2d 247, 2018 WL 1386605, *6-*7 (N.C. Ct. App. Mar. 20,
2018) (unpublished); State v. McCurry, No. COA17-169, 806 S.E.2d 703, 2017 WL 5586601, *9-*10
(N.C. Ct. App. Nov. 21, 2017) (unpublished).
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Opinion of the Court
Defendant’s prior offenses must be calculated according to their assigned
classification as of February 2016, the date of Defendant’s offenses in the immediate
case. N.C.G.S. § 15A-1340.14(c) (2017) (“In determining [a defendant’s] prior record
level, the classification of a prior offense is the classification assigned to that offense
at the time the offense for which the offender is being sentenced is committed.”).
Defendant was convicted for possession of drug paraphernalia in violation of N.C.G.S.
§ 90-113.22 on 13 March 2012. As of that date, N.C.G.S. § 90-113.22 was the sole
criminal statute regarding all drug paraphernalia possession. However, in 2014 our
General Assembly enacted N.C.G.S. § 90-113.22A, Possession of Marijuana
Paraphernalia. N.C.G.S. § 90-113.22A (2017). As of the date of Defendant’s offenses
in this case, possession of marijuana paraphernalia was a Class 3 misdemeanor while
possession of other drug paraphernalia remained a Class 1 misdemeanor. Compare
N.C.G.S. § 90-113.22A with § 90-113.22. Thus, our determination of whether the trial
court correctly calculated Defendant’s prior record level is dependent upon whether
Defendant’s 2012 possession of paraphernalia conviction was related to marijuana or
another drug, and whether the State met its burden of proving Defendant’s prior
record level.
“The State bears the burden of proving, by a preponderance of the evidence,
that a prior conviction exists . . . .” N.C.G.S. § 15A-1340.14(f) (2017). The existence
of a prior conviction can be proven by stipulation, production of relevant records, or
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Opinion of the Court
through “any other method found by the court to be reliable.” Id. During the
sentencing hearing, Defendant did not stipulate to his prior convictions, there was no
specific mention of the paraphernalia charge, and the only evidence proffered by the
State was a certified copy of Defendant’s DCI Computerized Criminal History Report.
The DCI Report is included in the Addendum to the Record on Appeal but sheds no
light on whether Defendant’s paraphernalia charge was related to marijuana or
another drug. The DCI Report simply shows that Defendant was arrested and
convicted for possession of drug paraphernalia in 2012. In sum, the State proved
Defendant’s record included a conviction for possession of drug paraphernalia, but
failed to prove whether that charge was related to marijuana or another drug, and
therefore whether the conviction was for a Class 1 or Class 3 misdemeanor.
Reviewing the determination of Defendant’s prior record level de novo, it is
apparent the State failed to meet its burden of proving at the sentencing hearing that
Defendant’s prior conviction for possession of drug paraphernalia was a Class 1
misdemeanor. When the trial court fails to properly determine a defendant’s prior
sentencing level, the matter must be remanded for resentencing at the correct
sentencing level. See State v. Jeffery, 167 N.C. App. 575, 582, 605 S.E.2d 672, 676
(2004) (remanding for resentencing where the State failed to prove the defendant’s
prior record level by a preponderance of the evidence). Therefore, this matter must
be remanded and Defendant resentenced at the appropriate prior record level, IV.
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Opinion of the Court
CONCLUSION
The State failed to prove Defendant’s 2012 conviction for possession of drug
paraphernalia was a Class 1 misdemeanor, but the trial court assigned one point to
Defendant’s prior record level for that conviction. That error resulted in Defendant
being sentenced more harshly than he would have been under his proven prior
record level. Therefore, this case must be remanded and Defendant resentenced as
a prior record Level IV.
REMANDED FOR RESENTENCING.
Judges STROUD and ZACHARY concur.
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