              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-709

                               Filed: 2 February 2016

Mecklenburg County, Nos. 14 CRS 27470, 14 CRS 213551

STATE OF NORTH CAROLINA,

             v.

RICHARD S. EURY, Defendant.


      Appeal by defendant from judgment entered 18 December 2014 by Judge Eric

L. Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals

18 November 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Michael T. Henry,
      for the State.

      Charlotte Gail Blake for defendant-appellant.


      ELMORE, Judge.


      The trial court sentenced Richard S. Eury (defendant) at a prior record level

six in the mitigated range of 90 to 120 months imprisonment for possession of a stolen

vehicle and attaining the status of an habitual felon. Because the trial court erred in

calculating defendant’s prior record level, we remand for resentencing.

                                   I. Background

      On 14 July 2014, the Mecklenburg County Grand Jury returned indictments

against defendant for larceny of a motor vehicle in violation of N.C. Gen. Stat. § 14-
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                                   Opinion of the Court



72 (2013), possession of a stolen vehicle in violation of N.C. Gen. Stat. § 20-106 (2013),

and attaining the status of an habitual felon in violation of N.C. Gen. Stat. § 14-7.1

(2013).   Defendant was tried at the 8 December 2014 Criminal Session of the

Mecklenburg County Superior Court, the Honorable Eric L. Levinson presiding. The

jury acquitted defendant of larceny but found him guilty of possession of a stolen

vehicle. On 18 December 2014, defendant admitted to habitual felon status in his

transcript of plea.

      In Section I of defendant’s sentencing worksheet, the trial court assigned

defendant seventeen points based on his prior felony convictions, which included

possession of stolen property in violation of N.C. Gen. Stat. § 14-71.1 (2013), and

larceny of a motor vehicle. Pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(6) (2013),

the trial court assigned one additional point because it determined that “all the

elements of the present offense are included in any prior offense whether or not the

prior offense or offenses were used in determining prior record level.” This raised the

total points assessed against defendant in Section I from seventeen to eighteen,

which, in turn, elevated defendant’s prior record level from five to six.

      Defendant signed a stipulation to the convictions included in the worksheet,

the points assigned thereto, and his prior record level.         The trial court found

mitigating factors and sentenced defendant to an active sentence in the mitigated




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                                    Opinion of the Court



range of 90 to 120 months imprisonment. Defendant gave notice of appeal in open

court.

                                     II. Discussion

         Defendant argues that the trial court erred by assigning an additional point

pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(6) to calculate his prior record level.

Specifically, defendant maintains that he has no prior conviction that contains all the

elements of his current conviction for possession of a stolen vehicle. The State, in

turn, argues that defendant is barred from raising this issue on appeal, and

alternatively, that defendant’s prior convictions for possession of stolen property and

larceny of a motor vehicle are sufficient to support an additional point under N.C.

Gen. Stat. § 15A-1340.14(b)(6).

         Although defendant stipulated to the assigned points and prior record level in

the sentencing worksheet, such stipulations do not bar defendant’s challenge on

appeal. The assignment of a prior record level is a question of law, State v. Wingate,

213 N.C. App. 419, 420, 713 S.E.2d 188, 189 (2011), and generally, stipulations to

questions of law are “invalid,” “ineffective,” “and not binding upon the courts,” State

v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (1979). Accordingly, we review

the trial court’s calculation of defendant’s prior record level de novo. State v. Fraley,

182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007).




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      In felony sentencing, an offender’s prior record level “is determined by

calculating the sum of the points assigned to each of the offender’s prior

convictions . . . .” N.C. Gen. Stat. § 15A-1340.14(a) (2013). In addition, one point is

assigned “[i]f all the elements of the present offense are included in any prior offense

for which the offender was convicted, whether or not the prior offense or offenses were

used in determining prior record level . . . .” N.C. Gen. Stat. § 15A-1340.14(b)(6).

      Although defendant’s prior convictions, larceny of a motor vehicle and

possession of stolen property, are similar to the present offense, possession of a stolen

vehicle, neither contains “all the elements of the present offense.” Id. Possession of

a stolen vehicle necessarily requires “that the stolen property being possessed was a

motor vehicle,” whereas possession of stolen property “does not require that one of

the ‘goods’ stolen was actually a motor vehicle.” State v. Bailey, 157 N.C. App. 80, 87,

577 S.E.2d 683, 688 (2003). Furthermore, larceny of a motor vehicle requires proof

of asportation but not possession, while possession of a stolen vehicle requires proof

of possession but not asportation. State v. Perry, 305 N.C. 225, 234, 287 S.E.2d 810,

815 (1982), overruled in part on other grounds by State v. Mumford, 364 N.C. 394,

402, 699 S.E.2d 911, 916 (2010). In other words, “[e]ach crime ‘requires proof of an

additional fact which the other does not.’ ” Id. (quoting Blockburger v. United States,

284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932).

                                   III. Conclusion



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                                  Opinion of the Court



      The trial court erred by assigning an additional point pursuant to N.C. Gen.

Stat. § 15A-1340.14(b)(6) to calculate defendant’s prior record level.      No prior

conviction in defendant’s criminal record contains all the elements of possession of a

stolen vehicle. Therefore, we remand for appropriate resentencing.

      REMANDED FOR RESENTENCING.

      Judges CALABRIA and ZACHARY concur.

      Report per Rule 30(e).




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