               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 280A17

                                Filed 26 October 2018

 STATE OF NORTH CAROLINA

              v.
 JAMES EDWARD ARRINGTON



      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 845 (2017), vacating a judgment

entered on 14 September 2015 by Judge Alan Z. Thornburg in Superior Court,

Buncombe County, setting aside defendant’s plea agreement, and remanding the case

for further proceedings. Heard in the Supreme Court on 14 March 2018.


      Joshua H. Stein, Attorney General, by Tracy Nayer, Assistant Attorney General,
      for the State-appellant.

      Glenn Gerding, Appellate Defender, by James R. Grant, Assistant Appellate
      Defender, for defendant-appellee.


      NEWBY, Justice.

      This case addresses whether, as part of a plea agreement, a defendant can

stipulate on his sentencing worksheet that a second-degree murder conviction

justified a B1 classification. A defendant may properly stipulate to prior convictions.

Defendant here stipulated to the sentencing worksheet showing his prior offenses,

one of which was a second-degree murder conviction designated as a B1 offense. In

so stipulating, defendant acknowledged that the factual basis of his conviction
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                                  Opinion of the Court




involved general second-degree murder (a B1 classification) and did not implicate the

exception for less culpable conduct involving an inherently dangerous act or omission

or a drug overdose (a B2 classification). Nevertheless, a majority at the Court of

Appeals held that the stipulation to this type of second-degree murder was an

improper legal stipulation.    Because defendant properly stipulated to the facts

underlying his conviction and the conviction itself, comparable to his stipulating to

his other offenses on the worksheet, the decision of the Court of Appeals is reversed.

      On 14 September 2015, defendant entered into a plea agreement, which

required him to plead guilty to assault with a deadly weapon inflicting serious injury,

felony failure to appear, and having attained habitual felon status. Under the plea

agreement, which defendant read and signed, the State consolidated the felony

failure to appear charge into the assault with a deadly weapon charge, dismissed a

second count of attaining habitual felon status, and allowed defendant to be

sentenced in the mitigated range. On the sentencing worksheet, defendant stipulated

to multiple previous offenses, including breaking and entering and larceny,

possession of drug paraphernalia, assault on a female, driving while impaired, and

breaking and entering a motor vehicle, in addition to second-degree murder. As a

part of the plea agreement, defendant also stipulated that his 1994 second-degree

murder conviction was accurately designated as a B1 offense.



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      At defendant’s sentencing hearing, the court read defendant’s plea agreement,

which, as noted above, defendant had read and signed:

                   The Court: The prosecutor, your attorney and you
             have informed the Court that the following includes all the
             terms and conditions of your plea, and I will read the plea
             arrangement to you now.
                   The defendant stipulates that he has 16 points and
             is a Level V for habitual felon sentencing purposes. The
             state agrees that 14 CRS 267 will be consolidated for
             sentencing purposes into 13 CRS 63727. The defendant
             will be sentenced as an habitual felon in the mitigated
             range and the state will dismiss the charge of obtaining the
             status of habitual felon in 15 CRS 624.
                   So does that include all the terms and conditions of
             your plea?

                   The Defendant: Yes, sir.
       Soon thereafter, the following exchange occurred:

                   [Prosecutor]: . . . would the defendant stipulate to a
             factual basis and allow the state to summarize?

                   [Defense Counsel]: We will so stipulate.

                   [Prosecutor]: And would he also stipulate to the
             contents of the sentencing worksheet that was prepared for
             habitual sentencing purposes showing him to be a Level V
             for –

                   [Defense Counsel]: We will            stipulate to the
             sentencing sheet.
Defense counsel then conceded, “There’s nothing I can deny about Mr. [Arrington’s]

record, absolutely nothing.” The State later referenced defendant’s prior second-

degree murder conviction, noting that “[defendant] killed a nine-year-old child, shot

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                                  Opinion of the Court




a nine-year-old child to death. . . . He ended up pleading guilty to second-degree

murder . . . .” Defendant did not attempt to explain further the facts of the second-

degree murder conviction.    After hearing from both parties, the judge determined

that defendant had attained habitual felon status and sentenced him in the mitigated

range, as agreed.

      A divided panel of the Court of Appeals vacated the trial court’s judgment and

set aside defendant’s guilty plea, holding that defendant improperly stipulated to a

matter of “pure legal interpretation.” State v. Arrington, ___ N.C. App. ___, ___, 803

S.E.2d 845, 849 (2017). The Court of Appeals reasoned that, because the legislature

divided second-degree murder into two classifications after the date of defendant’s

second-degree murder offense, determining the appropriate classification of the

offense would be a legal question that is thus inappropriate as the subject of a

stipulation between the parties. Id. at ___, 803 S.E.2d at 848. The Court of Appeals

opined that the analysis required here paralleled comparing elements of an out-of-

state offense to the corresponding elements of a North Carolina offense, which this

Court has determined to be an improper subject of a stipulation. Id. at ___, 803 S.E.2d

at 849 (citing State v. Sanders, 367 N.C. 716, 766 S.E.2d 331 (2014)).

      The dissent argued that defendant’s stipulation to the second-degree murder

conviction listed on his sentencing worksheet did not constitute an improper


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stipulation of law. Id. at ___, 803 S.E.2d at 852 (Berger, J., dissenting). The dissent

asserted that, while the trial court must make the legal determination of defendant’s

prior record level, a defendant may stipulate to the existence of prior convictions and

their classifications, which is what defendant did here. Id. at ___, 803 S.E.2d at 852.

Thus, the dissent would have affirmed the trial court’s judgment. Id. at ___, 803

S.E.2d at 852-53. The State filed notice of appeal based on the dissenting opinion.

      Every criminal conviction involves facts (i.e., what actually occurred) and the

application of the law to the facts, thus making the conviction a mixed question of

fact and law. In a jury trial the judge instructs jurors on the law, and the jury finds

the facts and applies the law. Similarly, in a guilty plea trial counsel summarizes the

facts, and the judge determines whether the facts support a conviction of the pending

charge.   Consequently, when a defendant stipulates to a prior conviction on a

worksheet, the defendant is admitting that certain past conduct constituted a stated

criminal offense. It is well settled that a defendant can stipulate to a prior conviction,

even though the prior conviction itself involved a mixed question of fact and law.

While the statutory classification of this prior conviction is a legal determination, its

classification is fact driven. Relying on a defendant’s past criminal history, the trial

court determines the range of sentence.




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                                    Opinion of the Court




       Here the crime of second-degree murder has two potential classifications, B1

and B2, depending on the facts of the murder.              By stipulating that the former

conviction of second-degree murder was a B1 offense, defendant properly stipulated

that the facts giving rise to the conviction fell within the statutory definition of a B1

classification.   Like defendant’s stipulation to every other offense listed in the

worksheet, defendant’s stipulation to second-degree murder showed that he

stipulated to the facts underlying the conviction and that the conviction existed.

While defendant does not challenge the other stipulations as improper, he contends

he could not legally stipulate that his prior second-degree murder conviction

constituted a B1 felony.

       “The prior record level of a felony offender is determined by calculating the

sum of the points assigned to each of the offender’s prior convictions that the

court . . . finds to have been proved in accordance with this section.” N.C.G.S. § 15A-

1340.14(a) (2017). “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.” Id. § 15A-1340.14(f)

(2017). The State may prove a prior conviction exists by (1) “[s]tipulation of the

parties”; (2) “[a]n 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



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                                    Opinion of the Court




Vehicles, or of the Administrative Office of the Courts”; or (4) “[a]ny other method

found by the court to be reliable.” Id. After the trial court determines the total

number of prior record points a defendant has accumulated, the court utilizes

N.C.G.S. § 15A-1340.14(c) to establish the prior record level based on the total record

points the defendant has accrued.

      Before 2012 all second-degree murders were classified at the same level for

sentencing purposes. See Act of June 28, 2012, ch. 165, sec. 1, 2011 N.C. Sess. Laws

(Reg. Sess. 2012) 781, 782.      In the 2012 amendments, however, the legislature

assigned culpability to convicted offenders depending upon the nature of their

conduct at the time of the homicide resulting in their second-degree murder

convictions and the intent with which they acted at that time. See also ch. 165, pmbl.,

2011 N.C. Sess. Laws (Reg. Sess. 2012) at 781. The version of the statute applicable

here states:

               (b) . . . Any person who commits second degree murder
                   shall be punished as a Class B1 felon, except that a
                   person who commits second degree murder shall be
                   punished as a Class B2 felon in either of the following
                   circumstances:

                     (1) The malice necessary to prove second degree
                         murder is based on an inherently dangerous act
                         or omission, done in such a reckless and wanton
                         manner as to manifest a mind utterly without
                         regard for human life and social duty and
                         deliberately bent on mischief.


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                                    Opinion of the Court




                   (2) The murder is one that was proximately caused
                       by the unlawful distribution of [controlled
                       substances], and the ingestion of such substance
                       caused the death of the user.

N.C.G.S. § 14-17(b)(1)-(2) (2015) (emphasis and brackets added).

      While the second-degree murder classifications changed, second-degree

murder remained a single offense with the same elements and definition.         Second-

degree murder is defined as “(1) the unlawful killing, (2) of another human being, (3)

with malice, but (4) without premeditation and deliberation.” State v. Coble, 351 N.C.

448, 449, 527 S.E.2d 45, 47 (2000) (citations omitted). Malice may be shown in at

least three different ways: (1) actual malice, meaning “hatred, ill-will or spite”; (2)

an inherently dangerous act “done so recklessly and wantonly as to manifest a mind

utterly without regard for human life and social duty and deliberately bent on

mischief”; or (3) “ ‘that condition of mind which prompts a person to take the life of

another intentionally without just cause, excuse, or justification.’ ” State v. Reynolds,

307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (quoting State v. Foust, 258 N.C. 453,

458, 128 S.E.2d 889, 893 (1963)).

      Given the consistent definition of second-degree murder and the 2012

amendments to N.C.G.S. § 14-17, the text of the statute indicates the legislature’s

intent to elevate second-degree murder to a B1 offense, except in the two limited


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                                   Opinion of the Court




factual scenarios when the second-degree murder stems from either an inherently

dangerous act or omission or a drug overdose. See id. § 14-17(b) (“Any person who

commits second degree murder shall be punished as a Class B1 felon, except that a

person who commits second degree murder shall be punished as a Class B2 felon . . . .”

(emphasis added)); see also State v. Lail, ___ N.C. App. ___, ___, 795 S.E.2d 401, 408

(2016) (“The plain language of [N.C.G.S. § 14-17] . . . indicates clearly that the

legislature intended to increase the sentence for second-degree murder to Class B1

and to retain Class B2 punishment only where either statutorily defined situation

exists.”), disc. rev. denied, 369 N.C. 524, 796 S.E.2d 927 (2017). Thus, the legislature

distinguishes between second-degree murders that involve an intent to harm (actual

malice or the intent to take a life without justification) versus the less culpable ones

that involve recklessness (an inherently dangerous act or omission) or a drug

overdose.   Generally, a second-degree murder conviction is a B1 offense, see

N.C.G.S. § 14-17(b), which receives nine sentencing points, see id. § 15A-

1340.14(b)(1a) (2017). The exception arises when it is shown that the facts of the

murder meet one of the statutory exceptions, thereby making the murder a B2

offense, which receives six points for sentencing purposes. See id. § 15A-1340.14(b)(2)

(2017).




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                                   Opinion of the Court




      It is undisputed that the State may prove a prior offense through stipulation

of the parties. See id. § 15A-1340.14(f). This proof by stipulation necessarily includes

the factual basis and legal application to the facts underlying the conviction. Once a

defendant makes this stipulation, the trial court then makes a legal determination

by reviewing the proper classification of an offense so as to calculate the points

assigned to that prior offense. Thus, like a stipulation to any other conviction, when

a defendant stipulates to the existence of a prior second-degree murder offense in

tandem with its classification as either a B1 or B2 offense, he is stipulating that the

facts underlying his conviction justify that classification.

      Here defendant could properly stipulate to the facts surrounding his offense by

either recounting the facts at the hearing or by stipulating to a general second-degree

murder conviction that has a B1 classification. Either method of stipulating would

allow the trial judge to determine the proper classification of the offense, calculate

the total number of points assigned to defendant’s prior convictions, and designate

defendant’s appropriate offender level. By stipulating to the worksheet, defendant

simply agreed that the facts underlying his second-degree murder conviction, of

which he was well aware, fell within the general B1 category because the offense did

not involve either of the two factual exceptions recognized for the B2 classification.

See id. § 14-17; see also N.C.P.I. – Crim. 206.30A (June 2014) (instructing the jury to



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                                     Opinion of the Court




determine, as a question of fact, whether malice exists, including the types of malice

that dictate whether conduct is a B1 offense). Defendant’s factual stipulation then

allowed the trial judge to properly classify the offense as B1.

       The pertinent facts underlying defendant’s second-degree murder conviction

are helpful in understanding why he would stipulate that his conviction fell within

the standard second-degree murder category. This Court in State v. Pickens, 335 N.C.

717, 440 S.E.2d 552 (1994), thoroughly recounted the facts leading to defendant’s plea

to second-degree murder.1 In 1991 a jury originally convicted defendant of first-

degree murder based on the felony murder rule. The murder arose from a lengthy,

heated, and volatile situation. Defendant assaulted his then-girlfriend, Robinson,

who called the police and subsequently obtained an arrest warrant. Id. at 718-19,

440 S.E.2d at 553. Thereafter, defendant returned to Robinson’s apartment and

again assaulted her. Id. at 719, 440 S.E.2d at 553. At that point, a fight broke out

between defendant and Cannady, a man helping move defendant’s items out of the

apartment, and both men were injured. Id. at 719, 440 S.E.2d at 553. Robinson,

Cannady, and several others fled to a relative’s apartment in the same complex. Id.

at 719, 440 S.E.2d at 553. The State presented evidence that defendant and his half-



       1The complete name of this case is State of North Carolina v. Charles L. Pickens, Jr.,
and James Edward Arrington. Pickens and defendant were jointly tried for the murder, and
they are half-brothers.

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                                     Opinion of the Court




brother, Pickens, were both armed and pursued the others. Once the others were

inside the second apartment, Robinson looked out a window and saw defendant.

Thereafter, two shots came through the window, one of which struck and killed

Robinson’s young daughter. Id. at 719, 440 S.E.2d at 553.

       Defendant and Pickens were jointly tried for the murder. Id. at 718, 440 S.E.2d

at 552-53. Neither defendant nor Pickens contended that the incident resulted from

a random shooting, but they instead accused each other of firing the fatal shot. Id.

at 724, 440 S.E.2d at 556. After defendant was convicted of first-degree murder, this

Court granted him a new trial upon concluding that the charges against him were

erroneously joined with charges against the other defendant. See id. at 728-29, 440

S.E.2d at 559. On remand, defendant pled guilty to second-degree murder based on

the same facts. These relevant facts, of which defendant was intimately aware,

indicate that his conduct fell within the usual B1 second-degree murder classification

and do not support either of the limited factual exceptions recognized in the B2

classification.2

       Moreover, taking into account the customarily fast pace of a plea sentencing

hearing, a common sense reading of the exchange between the parties at trial shows


       2Whether Robinson’s daughter was the intended target is irrelevant because the
malice with which defendant acted “follows the bullet.” See State v. Wynn, 278 N.C. 513, 519,
180 S.E.2d 135, 139 (1971) (quoting 40 Am. Jur. 2d Homicide § 11, at 303 (1968)).

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                                   Opinion of the Court




that defendant’s stipulation was to the nature of his conduct, which met the

requirements of the B1 classification for second-degree murder not covered by the B2

exceptions. Stipulations of prior convictions, including the facts underlying a prior

offense and the identity of the prior offense itself, are routine; for instance, defendant

here stipulated to numerous other prior convictions and does not contend that those

stipulations are improper. Nothing suggests the trial court did not accept defendant’s

stipulation here to likewise be a standard one that was, as a matter of course, linked

to the facts surrounding his second-degree murder conviction.

      Because defendant, the person most familiar with the facts surrounding his

offense, stipulated to the factual basis for his 1994 second-degree murder conviction,

this Court need not require a trial court to pursue further inquiry or make defendant

recount the facts during the hearing. See Sanders v. Ellington, 77 N.C. 255, 256

(1877) (“When the parties to an action agree upon a matter of fact, they are bound by

it, and it is not the duty of the judge to interfere, for he is presumed to be ignorant of

the facts. When the parties agree upon a matter of law, they are not bound by it, and

it is the duty of the judge to interfere and correct the mistake, if there be one, as to

the law, for he is presumed to know the law . . . .”). It is presumed that defense

counsel knew the law and advised defendant about the listed offenses when reviewing

the plea agreement before defendant accepted the agreement. See Turner v. Powell,



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                                   Opinion of the Court




93 N.C. 341, 343 (1885) (“It is presumed that [counsel] knew the law and advised his

client correctly . . . .”). Further, it is evident that the trial court was satisfied to

exercise its authority to accept the parties’ stipulation regarding prior offenses as a

part of the court’s acceptance of the plea arrangement. If the trial court had concern

about the nature of the second-degree murder stipulation in light of the date of

conviction, the court would have inquired further.

      Our analysis here is consistent with that of the Court of Appeals in State v.

Wingate, 213 N.C. App. 419, 713 S.E.2d 188 (2011), in which that court upheld a

stipulation to a particular classification of a crime arising under a statute having two

possible classifications.   The defendant in Wingate stipulated to a sentencing

worksheet stating he had previously been convicted of one count of conspiracy to sell

or deliver cocaine and two counts of selling or delivering cocaine, all of which were

designated on the worksheet as Class G felonies. Id. at 420, 713 S.E.2d at 189.

Though prohibited under the same criminal statute, selling cocaine constitutes a

Class G felony and delivering cocaine constitutes a Class H felony. On appeal the

defendant argued that his stipulation to the Class G classification constituted an

improper stipulation of law. Id. at 420, 713 S.E.2d at 189-90. The Court of Appeals

rejected the defendant’s argument, holding that “the class of felony for which

defendant was previously convicted was a question of fact, to which defendant could



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                                  Opinion of the Court




stipulate.” Id. at 420, 713 S.E.2d at 190. In doing so, the Court of Appeals recognized

that the defendant stipulated to a question of fact: that he was convicted of the

offense under a theory of selling cocaine. Id. at 421, 713 S.E.2d at 190. Just as the

classifications in Wingate involved a question of fact to which the defendant could

properly stipulate, defendant here could properly stipulate that the facts underlying

his second-degree murder conviction justified its classification as a B1 offense.

      In sum, defendant’s stipulation here is properly understood to be a stipulation

to the facts of his prior offense and that those facts supported its B1 classification.

The trial court duly accepted the stipulation. Therefore, the decision of the Court of

Appeals vacating the trial court’s judgment and setting aside defendant’s plea

agreement is reversed, and the Court of Appeals is instructed to reinstate the

judgment of the trial court.

      REVERSED.




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                                   Opinion of the Court




      Justice ERVIN dissenting.


      As a result of its determination that “[d]efendant properly stipulated to the

facts of his prior offense and that those facts supported its B1 classification,” the

Court has decided that the trial court properly classified defendant’s prior second-

degree murder conviction as a Class B1, rather than a Class B2, felony for purposes

of calculating defendant’s prior record level based upon the parties’ stipulation. In

view of my belief that the classification of defendant’s prior second-degree murder

conviction as a Class B1 felony required the making of a legal determination and that

the record presented for our review in this case lacks any support for the trial court’s

determination to classify defendant’s prior second-degree murder conviction as a

Class B1 felony other than the parties’ stipulation, I believe that the Court of Appeals

correctly held that the trial court erred in the course of calculating defendant’s prior

record level. As a result, I respectfully dissent from the Court’s decision in this case.

      As the record clearly reflects, defendant entered a plea of guilty to second-

degree murder on 1 July 1994. At the time that defendant was convicted of second-

degree murder, all second-degree murders were classified in the same manner for

sentencing purposes. In 2012, the General Assembly modified the manner in which



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                                   STATE V. ARRINGTON

                                     Ervin, J., dissenting



the offense of second-degree murder was classified for sentencing purposes, with a

judge sentencing a defendant who has been convicted of second-degree murder being

required to decide whether the defendant should be sentenced as a Class B1 felon or

a Class B2 felon, with that determination hinging upon the type of malice with which

the defendant acted at the time that he committed the murder and whether the

murder proximately resulted from the distribution of certain controlled substances.

       On 14 September 2015, defendant entered a guilty plea to a number of new

offenses committed in 2013, resulting in the entry of the judgment that is at issue in

this case. At the time that defendant was sentenced for these new convictions, the

trial court had to determine defendant’s prior record level which, in turn, required

the trial court to determine how many prior record points should be assigned to

defendant’s 1994 second-degree murder conviction.               In order to make that

determination, the trial court was required to decide whether defendant’s second-

degree murder conviction should be classified as a Class B1 or a Class B2 felony, with

that decision necessarily resting upon a determination of the type of malice with

which defendant acted at the time that he committed the second-degree murder for

which he was convicted in 1994 given the absence of any indication in the record that

defendant’s second-degree murder conviction in any way resulted from the

distribution of opium, cocaine, or methamphetamine.1 As I read the record, the only


       1 According to well-established North Carolina law, “there are at least three kinds of
malice,” including “a positive concept of express hatred, ill-will or spite, sometimes called
actual, express, or particular malice”; “when an act which is inherently dangerous to human

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                                      Ervin, J., dissenting



basis upon which the trial court could have made this determination was the parties’

stipulation that defendant’s prior second-degree murder conviction should be

assigned nine, rather than six, prior record points for purposes of calculating

defendant’s prior record level.

       As a general proposition, “stipulations as to matters of law are not binding

upon courts.”     State v. McLaughlin, 341 N.C. 426, 441, 462 S.E.2d 1, 8 (1995)

(citations omitted), cert. denied, 516 U.S. 1133, 116 S. Ct. 956, 133 L. Ed. 2d 879

(1996); see also State v. Fearing, 315 N.C. 167, 174, 337 S.E.2d 551, 555 (1985)

(stating that the trial court erred by accepting the parties’ stipulation that a child

was not competent to testify as a witness given the trial court’s failure to make an

independent competency evaluation based upon a personal evaluation of the child);

State v. Phifer, 297 N.C. 216, 226, 254 S.E.2d 586, 591 (1979) (stating that this Court

was not bound by the State’s stipulation that investigating officers lacked probable

cause to suspect that contraband would be found in the glove compartment in a

defendant’s motor vehicle given “[t]he general rule” that “stipulations as to the law

are of no validity” (first citing Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 56-



life is done so recklessly and wantonly as to manifest a mind utterly without regard for
human life and social duty and deliberately bent on mischief”; and “that condition of mind
which prompts a person to take the life of another intentionally without just cause, excuse,
or justification.” State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (first citing
State v. Benson, 183 N.C. 795, 799, 111 S.E. 869, 871 (1922), disapproved in part on other
grounds by State v. Phillips, 264 N.C. 508, 516, 142 S.E.2d 337, 342 (1965); then citing State
v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978); and then quoting State v. Foust,
258 N.C. 453, 458, 128 S.E.2d 889, 893 (1963) (quoting Benson, 183 N.C. at 799, 111 S.E. at
871)).

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                                      Ervin, J., dissenting



57, 213 S.E.2d 563, 569 (1975); then citing In re Edmundson, 273 N.C. 92, 97, 159

S.E.2d 509, 513 (1968); then citing U Drive It Auto Co. v. Atl. Fire Ins. Co., 239 N.C.

416, 419, 80 S.E.2d 35, 38 (1954); then citing Moore v. State, 200 N.C. 300, 301, 156

S.E. 806, 807 (1931); and then citing Sanders v. Ellington, 77 N.C. 255, 256 (1877)

(stating that, “[w]hen the parties agree upon a matter of law, they are not bound by

it, and it is the duty of the judge to interfere and correct the mistake, if there be one,

as to the law, for he is presumed to know the law, and it is his province to declare

it”))).

          For better or worse, the difference between a matter of fact and a matter of law

is not always clear. In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997)

(stating that “[t]he classification of a determination as either a finding of fact or a

conclusion of law is admittedly difficult”). On the one hand, “[f]acts are things in

space and time that can be objectively ascertained by one or more of the five senses

or by mathematical calculation” and, “in turn, provide the bases for conclusions.”

State ex rel. Utils. Comm’n v. Pub. Staff, 322 N.C. 689, 693, 370 S.E.2d 567, 570 (1988)

(citing State ex rel. Utils. Comm’n v. Eddleman, 320 N.C. 344, 351, 358 S.E.2d 339,

346 (1987)).      On the other hand, “any determination requiring the exercise of

judgment or the application of legal principles is more properly classified a conclusion

of law.” State v. Sparks, 362 N.C. 181, 185, 657 S.E.2d 655, 658 (2008) (quoting In re

Helms, 127 N.C. App. at 510, 491 S.E.2d at 675 (first citing Plott v. Plott, 313 N.C.

63, 74, 326 S.E.2d 863, 870 (1985); then citing Quick v. Quick, 305 N.C. 446, 452, 290


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                                   Ervin, J., dissenting



S.E.2d 653, 657-58 (1982))). As a result, a valid stipulation must concern “things in

space and time that can be objectively ascertained by one or more of the five senses,”

Utils. Comm’n v. Pub. Staff, 322 N.C. at 693, 370 S.E.2d at 570, rather than a

“determination requiring the exercise of judgment or the application of legal

principles,” Sparks, 362 N.C. at 185, 657 S.E.2d at 658 (quoting In re Helms, 127

N.C. App. at 510, 491 S.E.2d at 675).

      A determination of the type of malice with which defendant acted at the time

that he committed the killing that led to his 1994 conviction for second-degree murder

required the sentencing judge to ascertain both what the defendant did and the legal

effect of the defendant’s actions. Although the first of these two determinations,

which requires an examination of what happened in space and time, is a factual one,

the second will, in at least some circumstances, require the sentencing judge to make

a legal determination as to what the available factual evidence suggests that the

theory of guilt that led to the defendant’s conviction would have been. In view of the

fact that there has been no prior determination of the theory of malice upon which

defendant’s second-degree murder conviction rested in this case, the trial court’s

decision concerning the manner in which defendant’s second-degree murder

conviction should be classified for the purpose of calculating his prior record level in

this case necessarily requires both a factual and a legal determination, with the

former being something to which the parties could properly stipulate and the latter

being something to which they could not properly stipulate.


                                           -5-
                                 STATE V. ARRINGTON

                                   Ervin, J., dissenting



      As the Court notes, the parties to a criminal action may stipulate to the fact

that the defendant had previously been convicted of a criminal offense. N.C.G.S. §

15A-1340.14(f)(1)(2017). Although “conviction” is not statutorily defined in or for

purposes of N.C.G.S. 15A-1340.14, that term is ordinarily understood as “the

ascertainment of the defendant’s guilt by some known legal mode, whether by

confession in open court or by the verdict of a jury.” Smith v. Thomas, 149 N.C. 100,

101, 62 S.E. 772, 773 (1908) (citations omitted); see also Conviction, Black’s Law

Dictionary (10th ed. 2014) (defining “conviction” as “[t]he act or process of judicially

finding someone guilty of a crime; the state of having been proved guilty” or “[t]he

judgment (as by a jury verdict) that a person is guilty of a crime”). Thus, the

“conviction” to which a defendant is entitled to stipulate in accordance with N.C.G.S.

§ 15A-1340.14(f)(1) is the fact that he or she had been judicially determined to have

committed a specific offense rather than the body of factual information underlying

that conviction. Although a determination that a defendant has been judicially

determined to have committed a specific offense is, in almost all instances, sufficient

to permit a subsequent sentencing judge to determine precisely how many prior

record points should be assigned to that defendant based upon that prior conviction,

the 2012 amendments to N.C.G.S. § 14-17(b) providing for the classification of certain

second-degree murders as Class B1 felonies and other second-degree murders as

Class B2 felonies preclude a trial judge from determining how many prior record

points should be assigned to a defendant based solely upon the fact that he or she had


                                           -6-
                                  STATE V. ARRINGTON

                                    Ervin, J., dissenting



a prior second-degree murder conviction given that such convictions result in the

assignment of different numbers of prior record points depending upon whether the

conduct that resulted in the defendant’s conviction was encompassed within N.C.G.S.

§ 14-17(b)(1) or N.C.G.S. § 14-17(b)(2). Although defendant could have properly

stipulated to the facts necessary to make the required determination concerning the

extent to which his prior second-degree murder conviction was for a Class B1 or a

Class B2 felony, the record does not reflect that he ever did so. Instead, the parties

simply stipulated to the legal conclusion that defendant’s conduct should be treated

as coming within the confines of N.C.G.S. § 14-17(b)(1) rather than N.C.G.S. § 14-

17(b)(2). For that reason, I am unable to avoid the conclusion that the trial court’s

decision to classify defendant’s prior second-degree murder conviction as a Class B1,

rather than a Class B2, felony rested solely upon an acceptance of the parties’ legal

determination that various facts never presented for the trial court’s consideration

by stipulation or otherwise sufficed to establish that defendant’s conduct was

described in N.C.G.S. § 14-17(b)(1), rather than N.C.G.S. § 14-17(b)(2), instead of

resting upon an independent analysis of the applicable facts in light of the relevant

legal principles. As a result, I am also unable to avoid the conclusion that the trial

court’s decision to assign nine, rather than six, prior record points to defendant’s

conviction rested upon an unlawful stipulation to a matter of law.2


       2 Although the Court treats a second-degree murder conviction as presumptively being
a Class B1 felony, the fact that the State has the burden of proving that a particular prior
conviction exists, N.C.G.S. § 15A-1340.14(f)(2017) (providing that “[t]he State bears the

                                            -7-
                                    STATE V. ARRINGTON

                                      Ervin, J., dissenting



       In reaching a contrary conclusion, the Court asserts that defendant’s

stipulation that his second-degree murder conviction should be classified as a Class

B1, rather than a Class B2, felony is “like a stipulation to any other conviction” and

notes that defendant “does not challenge the other five stipulations [to prior

convictions] as improper.” Although the parties to a criminal action are clearly

authorized to stipulate to the fact that the defendant has previously been convicted

of a particular criminal offense, N.C.G.S. § 15A-1340.14(f)(1), and while the parties

to this case did properly stipulate to the existence of all the other convictions reflected

upon the prior record worksheet submitted for the trial court’s consideration, the

classification of defendant’s other convictions did not necessitate a legal

determination like the one required to determine whether defendant’s second-degree

murder conviction should be classified as a Class B1 or a Class B2 felony. As a result,

the fact that the parties to this case were entitled to stipulate to defendant’s other

convictions sheds little light on their ability to stipulate to the manner in which

defendant’s second-degree murder should be treated for prior record level calculation

purposes given that, in the aftermath of the 2012 amendments to N.C.G.S. § 14-17(b),

the mere fact that the defendant has been convicted of second-degree murder,

standing alone, does not answer the question of how many prior record points should


burden of proving, by a preponderance of the evidence, that a prior conviction exists”),
compels the conclusion that any failure on the part of the State to establish that a defendant’s
second-degree murder conviction should be treated as a Class B1 felony requires that the
relevant second-degree murder conviction be treated as a Class B2 felony for the purpose of
calculating the defendant’s prior record level.

                                              -8-
                                  STATE V. ARRINGTON

                                    Ervin, J., dissenting



be attributed to that conviction. Simply put, the parties’ stipulation that defendant’s

second-degree murder conviction should be treated as a Class B1, rather than a Class

B2, felony is simply not like other stipulations to the effect that a defendant has been

convicted of a particular offense and should not be treated as such.

      In reversing the Court of Appeals’ decision, the Court essentially concludes

that the trial court was entitled to accept the parties’ stipulation to the number of

prior record points that should be assigned to defendant’s second-degree murder

conviction on the theory that a defendant who stipulates to having been convicted of

a particular offense also stipulates to the facts underlying that conviction. In other

words, the Court evidently believes that a defendant who stipulates to the manner in

which his or her prior second-degree murder conviction should be classified for prior

record level calculation purposes effectively stipulates to the existence of facts

sufficient to support a determination that his or her conviction should be classified as

either a Class B1 or a Class B2 felony, making it a “factual stipulation” that “allowed

the trial judge to properly classify the offense as B1.” Aside from the fact that the

Court has not cited any authority in support of this expansive definition of a

“conviction” as that term in used in N.C.G.S. § 15A-1340.14 or explained why this

approach is consistent with the manner in which that term has been utilized in this

Court’s precedent, it is difficult for me to see what sort of stipulation would not qualify

as a stipulation of fact under the Court’s logic or how the Court’s decision can be

squared with this Court’s holdings in cases like Fearing, 315 N.C. at 174, 337 S.E.2d


                                            -9-
                                  STATE V. ARRINGTON

                                    Ervin, J., dissenting



at 55 (prohibiting a trial judge from accepting the parties’ stipulation that a

particular child was competent to testify as a witness); Phifer, 297 N.C. at 226, 254

S.E.2d at 591 (stating that the trial court was not bound by the State’s stipulation

that investigating officers lacked probable cause to believe that contraband was

located in a particular automobile); Quick, 287 N.C. at 56-57, 213 S.E.2d at 569

(stating that the trial court was not bound by any stipulation that defendant was a

“slayer” for purposes of N.C.G.S. § 31A-3(3)); and In re Edmundson, 273 N.C. at 97,

159 S.E.2d at 513 (rejecting the parties’ stipulation to the effect “[t]hat the agreed

statement of facts stipulated herein are all of the facts necessary for the court to make

its decision”). As a result, the logic upon which the Court’s decision to reverse the

Court of Appeals’ decision in this case rests does not strike me as persuasive.

       I am equally unpersuaded by the Court’s reliance upon the decision of the

Court of Appeals in State v. Wingate, 213 N.C. App. 419, 713 S.E.2d 188 (2011), which

upheld the parties’ stipulation that defendant had been convicted for selling, as

compared to delivering, cocaine. See N.C.G.S. § 90-95(b)(1) (2009) (providing that

“any person who violates G.S. 90-95(a)(1) with respect to . . . [a] controlled substance

. . . shall be punished as a Class H felon, except . . . the sale of a controlled substance

classified in Schedule I or II shall be punished as a Class G felony”); see also State v.

Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985) (observing that “the sale of

narcotics and the delivery of narcotics are separate offenses” (citing State v. Dietz, 289




                                            -10-
                                    STATE V. ARRINGTON

                                     Ervin, J., dissenting



N.C. 488, 223 S.E.2d 357 (1976)).3 Aside from the fact that it is not binding upon this

Court, Wingate did nothing more than reiterate the longstanding principle that a

defendant can stipulate that he or she had been convicted of a particular offense at

some point in the past. Thus, Wingate has no bearing upon the proper resolution of

this case, which revolves around a determination of the identity of the theory under

which defendant was convicted of second-degree murder rather than the identity of

the crime that defendant was previously convicted of having committed.

       In addition to concluding that the stipulation upon which the trial court based

its prior record level determination was factual rather than legal in nature, the Court

conducts an independent factual analysis based upon the information contained in

this Court’s decision overturning defendant’s original first-degree murder conviction

in order to determine that defendant’s second-degree murder conviction should be

classified as a Class B1, rather than a Class B2, felony for purposes of calculating

defendant’s prior record level and that defendant had ample justification for believing



       3 Admittedly, this Court did state in State v. Moore, 327 N.C. 378, 382, 395 S.E.2d 124,
127 (1990), that, “by the statutory language at issue here the legislature has made it one
criminal offense to ‘sell or deliver’ a controlled substance under N.C.G.S. § 90-95(a)(1).” On
the other hand, after acknowledging the language from State v. Creason quoted in the text of
this opinion, we stated that Creason, 313 N.C. at 129, 326 S.E.2d at 28, and State v. Dietz,
289 N.C. 488, 498, 223 S.E.2d 357, 364 (1976) (stating that “the two acts could have been
charged as separate offenses” (emphasis added)), did “not mandate the conclusion that a
defendant may also be convicted for two offenses in such situations.” Moore, 327 N.C. at 382,
395 S.E.2d at 127 (emphasis omitted). As a result, our cases addressing this issue, when
harmonized with each other, indicate that, while the sale and delivery of a controlled
substance are separate offenses, a defendant cannot be separately convicted of and sentenced
for the sale and delivery of the same controlled substance consistent with the relevant
legislative intent.

                                             -11-
                                  STATE V. ARRINGTON

                                    Ervin, J., dissenting



that his second-degree murder conviction reflected his guilt of a Class B1, rather than

a Class B2, felony. According to the Court, “defendant pled guilty to second-degree

murder based on the same facts” and “[t]hese relevant facts, of which defendant was

intimately aware, indicate that defendant’s conduct fell within the [B1] second-degree

murder classification.”    Aside from my concern that this portion of the Court’s

analysis could be construed as appellate fact-finding, the record contains no

indication that the information upon which the Court relies in making this

determination was ever presented to the trial court, which acts as the fact-finder in

structured sentencing proceedings.4 As a result, I do not believe that the Court’s

independent evaluation of material that does not appear in the record that has been

presented for our review in this case provides any basis for upholding the trial court’s

decision to treat defendant’s prior second-degree murder conviction as a Class B1,

rather than a Class B2, felony for the purpose of calculating defendant’s prior record

level.

         Thus, the trial court’s decision to classify defendant’s prior second-degree

murder conviction as a Class B1, rather than a Class B2, felony necessarily rested

upon an acceptance of the parties’ legal determination that various facts never



         4Admittedly, the prosecutor did state in the course of her sentencing argument that
defendant had “killed a nine-year-old child, shot a nine-year-old child to death” and that
defendant had entered a plea of “guilty to second-degree murder” after this Court reversed
his first-degree murder conviction. However, the statement in question does not constitute
evidence and defendant never took any action that can be construed as a stipulation to the
accuracy of that statement.

                                            -12-
                                 STATE V. ARRINGTON

                                   Ervin, J., dissenting



presented for the trial court’s consideration by stipulation or otherwise sufficed to

establish that defendant’s conduct was encompassed in N.C.G.S. § 14-17(b)(1), rather

than N.C.G.S. § 14-17(b)(2), instead of upon an independent analysis of the factual

information presented for the court’s consideration at defendant’s sentencing hearing

in light of the applicable legal principles.         For that reason, the trial court’s

determination that defendant’s second-degree murder conviction should be assigned

nine, rather than six, points for the purpose of calculating defendant’s prior record

level rests solely upon an acceptance of the parties’ stipulation to a matter of law, an

action which this Court has repeatedly held that trial judges lack the authority to

take. As a result, I respectfully dissent from my colleagues’ decision to reverse the

Court of Appeals’ decision and would, instead, affirm the Court of Appeals’ decision

to vacate defendant’s guilty plea and remand this case for further proceedings in the

trial court.

       Justices HUDSON and BEASLEY join in this dissenting opinion.




                                           -13-
