An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-121
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                      Macon County
                                              No. 11 CRS 50083
GUY AUSTIN ZINKAND



      Appeal by Defendant from judgment entered 24 July 2013 by

Judge Marvin P. Pope in Superior Court, Macon County.                     Heard in

the Court of Appeals 3 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Tamika L. Henderson, for the State.

      Jarvis John Edgerton, IV for Defendant-Appellant.


      McGEE, Judge.


      Guy   Austin     Zinkand    (“Defendant”)      previously      appealed      to

this Court, arguing that the trial court had erred in finding

two aggravating factors.           This Court remanded for resentencing

in State v. Zinkand, ___ N.C. App. ___, 739 S.E.2d 627, COA12-

756   (2013)     (unpublished),       slip    op.   at    5.      Defendant     was

resentenced on 24 July 2013 for felony conspiracy to manufacture

methamphetamine.         At   resentencing,      Defendant     stipulated     to    a
                                          -2-
finding that Defendant was a prior record level IV.                            The trial

court determined Defendant to be a prior record level IV and,

after   finding         the    aggravating      factor       that        Defendant      had

committed   the     offense      while    on    pretrial      release         on   another

charge, sentenced Defendant to 138 to 175 months’ imprisonment.

The trial court made no findings of any mitigating factors.

Defendant appeals.

      Defendant argues that the trial court erred in classifying

his   Florida   convictions        for    burglary     and    general         larceny   as

felonies for the purpose of determining Defendant’s prior record

level “when the rule of lenity mandated a conclusion [that] the

convictions were misdemeanors[.]”               We disagree.

      “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[.]”

N.C. Gen. Stat. § 15A-1340.14(e) (2013).                      Defendant correctly

acknowledged in his brief that the State sought only a Class I

classification and did not seek a more serious classification

for the Florida convictions for burglary and larceny.

      Defendant contends that the “record evidence only supported

findings    that    the       Florida    burglary     offense       was       misdemeanor

breaking and entering in North Carolina, and the Florida larceny
                                          -3-
offense was misdemeanor larceny in North Carolina.”                    However,

the trial court’s task at that point in the sentencing process

was    not   to   determine     whether    Defendant’s   Florida     convictions

were substantially similar to North Carolina offenses.                  Rather,

an out-of-state conviction “is classified as a Class I felony if

the jurisdiction in which the offense occurred classifies the

offense as a felony[.]”          N.C.G.S. § 15A-1340.14(e).

       This statute provides that, should Defendant wish to seek a

less    serious        classification      than    the   “default”     Class   I

classification, Defendant must show by the preponderance of the

evidence that an offense classified as a felony in the other

jurisdiction is substantially similar to an offense that is a

misdemeanor       in    North   Carolina.         N.C.G.S.   § 15A-1340.14(e).

Defendant’s argument that his Florida offenses were similar to

North Carolina misdemeanors is an argument that Defendant had

the opportunity to make to the trial court pursuant to N.C.G.S.

§ 15A-1340.14(e).         If Defendant “proves by the preponderance of

the evidence that an offense classified as a felony in the other

jurisdiction is substantially similar to an offense that is a

misdemeanor in North Carolina, the conviction is treated as that

class of misdemeanor for assigning prior record level points.”

N.C.G.S. § 15A-1340.14(e).

       Defendant cites State v. Hanton, 175 N.C. App. 250, 623
                                         -4-
S.E.2d 600 (2006), in support of his argument that the trial

court erred by failing to apply the rule of lenity and find the

Florida     convictions   substantially        similar   to    North   Carolina

misdemeanors.      However, the application of the rule of lenity in

Hanton involved the ambiguity in N.C.G.S. § 15A-1340.14(e) as to

how a trial court was to “determine which North Carolina offense

is most substantially similar to the out-of-state offense when

the    out-of-state   offense      has    elements    that    are   similar   to

multiple North Carolina offenses.”                 Hanton, 175 N.C. App. at

259, 623 S.E.2d at 606.

       The rule of lenity “forbids a court to interpret a statute

so as to increase the penalty that it places on an individual

when the Legislature has not clearly stated such an intention.”

Id.     By contrast, in the present case, the statute is clear

that, if Florida classified Defendant’s Florida convictions for

burglary and larceny as felonies, the out-of-state convictions

were   to   be   classified   as    Class      I   felonies   in    this   State,

pursuant to N.C.G.S. § 15A-1340.14(e).               Defendant has not shown

that the trial court erred in re-sentencing Defendant.

       No error.

       Judges HUNTER, Robert C. and ELMORE concur.

       Report per Rule 30(e).
