An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-869
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


STATE OF NORTH CAROLINA

      v.                                      Gaston County
                                              No. 12 CRS 57020
RALPH JUNIOR WILSON



      Appeal by defendant from judgment entered 13 March 2013 by

Judge James W. Morgan in Gaston County Superior Court.                    Heard in

the Court of Appeals 9 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Neal T. McHenry, for the State.

      Richard J. Costanza, for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Ralph Junior Wilson (“Defendant”) appeals from a judgment

and commitment sentencing him to 23–37 months imprisonment for

possession of a firearm by a felon.              Defendant contends that the

trial court erred in assessing him with sentencing points for

his prior shoplifting and public disturbance convictions.                         In

the alternative, Defendant contends that he received ineffective

assistance     of   counsel    during    sentencing.        For   the   following
                                            -2-
reasons,     we    affirm     the    trial        court’s       judgment       and    dismiss

Defendant’s ineffective assistance of counsel claim.

                        I.   Factual & Procedural History

       On 13 March 2013, Defendant was convicted of possession of

a firearm by a felon.1               The evidence presented at Defendant’s

trial tended to show the following.

       On 28 May 2012, Officer J.R. Hamrick (“Officer Hamrick”) of

the Gaston County Police Department was on a marine patrol of

Lake Wylie when he received a call from dispatch concerning an

emergency in the area.              The reported emergency was near a part

of    the   lake    known    as     the    “hot     hole.”        As    Officer       Hamrick

approached        the    shoreline        near     the    hot    hole,     a    man     began

motioning for Officer Hamrick and pointed him in the direction

of a nearby pier.             When Officer Hamrick looked over in the

direction to which the man was pointing, he saw a woman who

appeared visibly upset arguing with Defendant on the shoreline.

       Officer      Hamrick       disembarked            from     the      police       boat,

approached the couple, and stated “Stop,” “Police, don’t move.”

The woman stood still but Defendant took off running with a

Styrofoam bucket in his hand.                    Officer Hamrick chased Defendant

up a hill to a nearby restroom.                   When Officer Hamrick caught up



1
    Defendant stipulated to a prior felony conviction at trial.
                                            -3-
to Defendant at the restroom entrance, Defendant had dropped the

Styrofoam bucket on the ground and a .45 caliber semi-automatic

handgun     was     lying     next     to    the     bucket.        Officer        Hamrick

restrained Defendant and, after learning that Defendant was a

convicted felon, arrested Defendant for possessing the firearm.

      After    hearing       the     foregoing       evidence,      the     jury    found

Defendant guilty of possession of a firearm by a felon, a Class

G felony. See N.C. Gen. Stat. § 14-415.1(a) (2013).                         Thereafter,

the   trial   court        commenced    with      sentencing.        On    the     record,

defense counsel and the State stipulated                       to the accuracy of

Defendant’s        prior    record     level       worksheet      (form    AOC-CR-600).

Moreover,     it    was    stipulated       that    based    on    Defendant’s      prior

convictions listed in Section V of the worksheet, Defendant had

amassed 19 felony sentencing points and was therefore at a prior

record level of VI for felony sentencing purposes.                               Based on

this stipulation, the trial court concluded that Defendant had

19 prior record points and a prior record level of VI.                                 The

trial     court     sentenced        Defendant      to   a     23–37      month     active

sentence, which is within the presumptive range for a Class G

felon at a record level of VI. See N.C. Gen. Stat. § 15A-1340.17

(2013).     Defendant gave notice of appeal in open court.
                                        -4-
                            II.     Jurisdiction

      Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-

27(b), 15A-1444(a) (2013).

                               III. Analysis

      Defendant’s appeal presents two questions for our review:

(1) whether the trial court erred in assessing Defendant with

felony sentencing points for his prior shoplifting and public

disturbance     convictions;      and   (2)   whether   Defendant   received

ineffective assistance of counsel during sentencing.            We address

each in turn.

A. Defendant’s Sentencing Argument

      Defendant contends that the trial court erred as a matter

of   law   by   assigning   him    felony     sentencing   points   for    his

previous shoplifting and public disturbance convictions.                  As a

result, Defendant contends that the trial court should have set

his prior record level at V instead of VI and asks this Court to

remand for resentencing.

      “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).    “Under a de novo review, the court considers the matter
                                    -5-
anew and freely substitutes its own judgment for that of the

lower tribunal.”      Craig v. New Hanover Cnty. Bd. of Educ., 363

N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and

citation omitted).         Even so, an error by the trial court in

calculating a defendant’s prior record point total is harmless

if   the   error    does    not   affect    the   determination   of   the

defendant’s prior record level.           State v. Blount, 209 N.C. App.

340, 347, 703 S.E.2d 921, 926 (2011).

     “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. Gen. Stat. §

15A-1340.14(a) (2013).       “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.”          N.C. Gen. Stat.

§ 15A-1340.14(f).

           A prior conviction shall be proved by any of
           the following methods:

           (1)     Stipulation of the parties.

           (2)     An original copy of the court record of
                   the prior conviction.

           (3)     A copy of records maintained by         the
                   Division of Criminal Information,       the
                                      -6-
                     Division of Motor Vehicles, or of the
                     Administrative Office of the Courts.

              (4)    Any other method found by the court to
                     be reliable.

Id.

      The number of prior record points for each class of felony

and misdemeanor offense is specified in N.C. Gen. Stat. § 15A-

1340.14(b).         Pertinent here, the only non-traffic misdemeanor

offenses that are assigned prior record points under the statute

are Class A1 and Class 1 misdemeanors.                See N.C. Gen. Stat. §

15A-1340.14(b)(5).        Importantly, offenders with 18 or more prior

record points are assigned a prior record level of VI for felony

sentencing, while offenders with 14–17 points are assigned a

prior record level of V.          See N.C. Gen. Stat. § 15A-1340.14(c).

      Here,     defense    counsel   and    the   State     stipulated   to   the

accuracy   of       Defendant’s   prior    record   level    worksheet,     which

indicated that Defendant had amassed 19 felony sentencing points

and was therefore at a prior record level of VI for felony

sentencing      purposes.         Defendant’s       prior     convictions     for

shoplifting and public disturbance were listed on the worksheet

as follows:
                                          -7-
           Offenses                              File No.          Class

           . . . .

           M – SHOPLIFTING                       89CR3411          3

           . . . .

           M – PUBLIC DISTURBANCE                11CR60879         1
                       2
           . . . .

On appeal, Defendant contends that the trial court should not

have assigned points to these misdemeanor convictions because,

as   a   matter   of       law,    they   are    not   Class       A1      or    Class      1

misdemeanors.3

     At the outset, we note that Defendant’s prior conviction

for shoplifting is listed on Defendant’s worksheet as a Class 3

misdemeanor.       Moreover,           our     criminal     shoplifting              statute

specifies the crime as a Class 3 misdemeanor.                  N.C. Gen. Stat. §

14-72.1(e)   (2013)        (“For   a   first    conviction     .       .   .    or    for   a

subsequent conviction for which the punishment is not specified

by this subsection, the defendant shall be guilty of a Class 3




2
  The worksheet also indicated the date of each conviction and
the county involved.    This information has been edited out for
ease of interpretation.
3
  A review of the worksheet and the trial court’s judgment
reveals that the trial court assigned 1 point for each of these
convictions.
                                     -8-
misdemeanor.”).4     Accordingly, it was error for the trial court

to   assign    one    felony     sentencing     point     for      Defendant’s

shoplifting conviction, and the State concedes as much in its

brief before this Court.        Nevertheless, the State contends that

this error is harmless because even if a point is deducted from

Defendant’s total (i.e., if Defendant’s prior record point total

drops from 19 to 18), Defendant would still be at a prior record

level of VI for felony sentencing purposes.             The validity of the

State’s argument assumes that the trial court did not err in

assigning     one    point     for   Defendant’s    public         disturbance

conviction, a question we now consider.

     Defendant contends that the trial court erred in assigning

one point for his prior public disturbance conviction because,

as a matter of law, a “public disturbance” is unambiguously a

Class   2   misdemeanor.        Specifically,    even     though     Defendant

stipulated to the accuracy of the prior record level worksheet,

which lists Defendant’s public disturbance conviction as a Class

1 misdemeanor, Defendant contends that his stipulation is not

binding and should have been corrected by the trial court.                 See

State v. Wingate, 213 N.C. App. 419, 420, 713 S.E. 2d 188, 189

(2011) (“Stipulations as to questions of law are generally held

4
  There are no other prior shoplifting convictions listed on
Defendant’s worksheet.
                                           -9-
invalid and ineffective, and not binding upon the courts, either

trial or appellate.” (quotation marks and citations omitted)).

       In support of his argument, Defendant directs our attention

to this Court’s decisions in Wingate and State v. Roseboro, ___

N.C.    App.       ___,     723   S.E.2d     583,     2012    WL   1308987      (2012)

(unpublished).5           In Wingate, the defendant stipulated that he had

been convicted of one count of “conspiracy to sell or deliver

cocaine”     and    two     counts   of    “selling    or    delivering   cocaine.”

Wingate, 213 N.C. App. at 420, 713 S.E.2d at 189.                    The defendant

further stipulated that these offenses were Class G felonies.

Id.    On appeal, the defendant contended that

             there was insufficient proof to establish
             whether he had previously been convicted of
             one count of conspiracy to sell cocaine and
             two counts of selling cocaine, which are
             Class   G  felonies,   or   whether  he was
             convicted of one count of conspiracy to
             deliver and two counts of delivery of
             cocaine, which are Class H felonies.

Id.    at   420,    713     S.E.2d   at    189–90.     In    reviewing    the    trial

court’s decision, we said:

             Defendant  asserts  that   whether  he  was
             convicted of delivering cocaine or whether
             he was convicted of selling cocaine was a
             question of law, not fact, and, therefore,
             his stipulation to the Class G felonies was

5
  Roseboro is an unpublished decision of this Court and therefore
has no precedential value.    Nevertheless, we consider Roseboro
as persuasive authority.
                                      -10-
            invalid. We disagree and hold that, in this
            case,   the  class   of   felony  for   which
            defendant was previously convicted was a
            question of fact, to which defendant could
            stipulate, and was not a question of law
            requiring resolution by the trial court.

Id. at 420, 713 S.E.2d at 190.          Additionally, we noted that:

            [t]he prior conviction worksheet expressly
            sets forth the class of offense to which a
            defendant stipulates and defendant in this
            case has not cited to any authority, nor
            have we found any, that requires the trial
            court to ascertain, as a matter of law, the
            class of each offense listed.

            Defendant in the case at bar stipulated that
            the three convictions at issue were Class G
            felonies. The trial court could, therefore,
            rely on this factual stipulation in making
            its calculations and the State’s burden of
            proof was met.

Id. at 421, 713 S.E.2d at 190.

    In      Roseboro,       the    defendant       stipulated          that       he    had

previously been convicted of “conspiracy to commit common law

robbery”    and     that    this   conviction       was    a        Class     G   felony.

Roseboro, 2012 WL 1308987, at *1.                   On appeal, the defendant

contended    that    “the    trial    court       erred    in       relying       on   this

stipulation because as a matter of law, conspiracy to commit

felony     common    law    robbery    is     a    Class        H    felony.”           Id.

Distinguishing Wingate, we said:

            In Wingate the question before the Court was
            whether defendant’s stipulation to the class
                              -11-
         of   an    ambiguously    titled   felony   was
         sufficient to establish that his conviction
         was for the Class G felony of sale of
         cocaine, rather than the Class H felony of
         delivery of cocaine.        Here, there is no
         ambiguity in the prior felony to which
         Defendant stipulated.      Defendant stipulated
         that    he   was   previously    convicted   of
         conspiracy to commit felony common law
         robbery.      As   a   matter   of   law,  this
         conviction is a Class H felony.          It was
         error to list the conviction as a Class G
         felony on the prior record level worksheet,
         and it was error for the trial court to rely
         on that stipulation to calculate Defendant’s
         prior record level.          Properly counting
         Defendant’s prior conviction for conspiracy
         to commit felony common law robbery as a
         Class H felony, Defendant would have a prior
         record level of IV.     Accordingly, we remand
         for resentencing.

Id. at *2.

    Consistent with Roseboro, Defendant contends that a “public

disturbance” unambiguously refers to the conduct prohibited by

N.C. Gen. Stat. § 14-288.4(a), which, as a matter of law, is a

Class 2 Misdemeanor.   See N.C. Gen. Stat. § 14-288.4(b) (2011).6



6
  Offenders under this version of the statute, which was in
effect when Defendant committed the offense for which he is
currently being sentenced, were guilty of a Class 2 misdemeanor
for a first offense irrespective of the particular subsection
implicated under N.C. Gen. Stat. § 14-288.4(a).        Under the
current statute, offenders of N.C. Gen. Stat. § 14-288.4(a)(8)
are guilty of a Class 1 misdemeanor for the first offense. See
N.C. Gen. Stat. § 14-288.4(c) (2013). The older version of the
statute is cited here because “[i]n determining the prior record
level,   the  classification   of  a   prior   offense   is  the
classification assigned to that offense at the time the offense
                                    -12-
We disagree.

    N.C.   Gen.   Stat.    §   14-288.1(8)    (2013)    defines   a   “public

disturbance” as

           [a]ny annoying, disturbing, or alarming act
           or condition exceeding the bounds of social
           toleration normal for the time and place in
           question which occurs in a public place or
           which occurs in, affects persons in, or is
           likely to affect persons in a place to which
           the public or a substantial group has
           access.

As defined, the term is subsequently used to describe a riot in

N.C. Gen. Stat. § 14-288.2 (2013) and to describe various types

of disorderly conduct in N.C. Gen. Stat. § 14-288.4.7                   Thus,

unlike   conspiracy   to   commit    common    law     robbery,   a   “public

disturbance” is an ambiguous label that could refer to multiple

types of criminal activity.          Furthermore, while a person is

guilty of a Class 2 misdemeanor for disorderly conduct under

N.C. Gen. Stat. § 14-288.4, N.C. Gen. Stat. § 14-288.2(c) states

that “any person who willfully engages in a riot is guilty of a

Class 1 misdemeanor.”

    Accordingly, Defendant’s stipulation in the present case is

more akin to the stipulation in Wingate than the stipulation in



for which the offender is being sentenced is committed.” N.C.
Gen. Stat. § 15A-1340.14(c).
7
  Notably, N.C. Gen. Stat. § 14-288.4 is titled “Disorderly
conduct,” not “public disturbance.”
                                      -13-
Roseboro.      Defendant has stipulated to an ambiguously labeled

crime and its punishment classification. Thus, consistent with

our decision in Wingate, “the class of [misdemeanor] for which

[D]efendant was previously convicted was a question of fact, to

which [D]efendant could stipulate, and was not a question of law

requiring resolution by the trial court.”                    Wingate, 213 N.C.

App. at 420, 713 S.E.2d at 190.

     Finally, we note that on 19 September 2013, Defendant filed

a motion with this Court asking us to take judicial notice of a

certified copy of the judgment entered for his previous “public

disturbance”     conviction      in     order       to   establish    that     the

conviction   was    for   a    violation       of   N.C.    Gen.   Stat.   §   14-

288.4(a)(2).8      “[I]f requested by a party and supplied with the

necessary information,” this Court is required to take judicial

notice of an adjudicative fact that is “capable of accurate and

ready determination by resort to sources whose accuracy cannot

be reasonably questioned.”          N.C. R. Evid. 201.         A certified copy

of   a   court   record   is    a     source    whose      accuracy   cannot   be

reasonably questioned.         Thus, we must take judicial notice of



8
  Defendant has also requested that we take judicial notice of an
uncertified computer printout allegedly showing the record of
his previous shoplifting conviction as maintained by the
Administrative Office of the Courts.
                                        -14-
the information contained in Defendant’s judgment.9                See State v.

Thompson, 349 N.C. 483, 497, 508 S.E.2d 277, 286 (1998) (“This

Court may take judicial notice of the public records of other

courts within the state judicial system.”); State v. King, ___

N.C. App. ___, ___, 721 S.E.2d 327, 330 (2012) (taking judicial

notice    of    a   certified   public    record    signed   by    an    assistant

clerk).        The judgment, which matches the file               number    listed

beside “public disturbance” on the prior record level worksheet,

cites     to    N.C.    Gen.    Stat.    §     14-288.4(a)(2)      to     describe

Defendant’s criminal conduct.

     However, because this document was not presented to the

trial court, it cannot affect our review of the trial court’s

sentencing decision.       In a similar context, we have stated that

               [t]he Court of Appeals is not the proper
               place for the introduction of evidence.
               This Court is not a fact-finding court, and
               will not consider evidence, documentary or
               otherwise, that was not before the trial
               court. To allow such evidence would lead to
               interminable   appeals   and    defeat   the
               fundamental roles of our trial and appellate
               courts.

State v. Massey, 195 N.C. App. 423, 429, 672 S.E.2d 696, 699–700

(2009)     (declining     to    consider       a   certified      copy     of   the



9
  We decline to judicially notice the computer printout detailing
Defendant’s shoplifting conviction. As an uncertified document,
its accuracy can be reasonably questioned.
                                       -15-
defendant’s      criminal     record    in    reviewing     the   trial    court’s

sentencing decision).         Accordingly,       we find no reversible error

in the trial court’s sentencing decision.                   Although the trial

court   mistakenly     added     a    point    for    Defendant’s    shoplifting

conviction, this error was harmless.                 Defendant stipulated that

the ambiguously labeled “public disturbance” conviction was a

Class   1   misdemeanor.        Considering      Defendant’s      stipulation    to

this question of fact, which was the only evidence before the

trial   court,    we   hold    that    the    trial    court   did   not   err   in

assigning    a   felony     sentencing       point    for   Defendant’s    “public

disturbance” conviction nor in setting Defendant’s prior record

level at VI.

B. Defendant’s Ineffective Assistance of Counsel Argument

     Defendant contends that if the trial court did not err in

its sentencing decision, we should find on direct review that he

received ineffective assistance of counsel during the sentencing

phase of his trial.           Specifically, Defendant contends that his

trial counsel stipulated to inaccurate information and, but for

the error, Defendant would have received a shorter sentence.

     To prevail on an ineffective assistance of counsel claim,

            a defendant must first show that his
            counsel’s performance was deficient and then
            that    counsel’s    deficient   performance
            prejudiced    his   defense.       Deficient
                                    -16-
             performance may be established by showing
             that counsel’s representation fell below an
             objective   standard     of    reasonableness.
             Generally,   to   establish     prejudice,    a
             defendant  must   show    that   there   is   a
             reasonable   probability     that,   but    for
             counsel’s unprofessional errors, the result
             of the proceeding would have been different.
             A reasonable probability is a probability
             sufficient to undermine confidence in the
             outcome.

State   v.    Allen,   360   N.C.   297,   316,   626   S.E.2d   271,   286

(citations and quotation marks omitted), cert. denied, 549 U.S.

867 (2006).     However,

             [i]t is well established that ineffective
             assistance of counsel claims “brought on
             direct review will be decided on the merits
             when the cold record reveals that no further
             investigation is required, i.e., claims that
             may be developed and argued without such
             ancillary procedures as the appointment of
             investigators or an evidentiary hearing.”
             Thus, when this Court reviews ineffective
             assistance of counsel claims on direct
             appeal and determines that they have been
             brought prematurely, we dismiss those claims
             without prejudice, allowing defendant to
             bring them pursuant to a subsequent motion
             for appropriate relief in the trial court.

State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881

(2004) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d

500, 524 (2001)), cert. denied, 546 U.S. 830 (2005).

    Here, the cold record reveals that further information is

required to review Defendant’s ineffective assistance of counsel
                                         -17-
claim.       It is clear that an error was made with respect to

Defendant’s shoplifting conviction.                  This conviction is listed

on the prior record level worksheet as a Class 3 misdemeanor,

yet, defense counsel stipulated to a point total that included

one   point       for    this   conviction.       Even    so,   further      factual

development         is      needed      concerning       Defendant’s         “public

disturbance” conviction.             This conviction is listed as a Class 1

misdemeanor on the prior record level worksheet.                     The certified

judgment that we have judicially noticed also identifies this

conviction as a Class 1 misdemeanor.                   However, as previously

noted,      the   judgment      also   cites    to    N.C.   Gen.    Stat.   §   14-

288.4(a)(2) to describe Defendant’s criminal conduct, which, as

a matter of law, is a Class 2 misdemeanor.10                 See N.C. Gen. Stat.

§ 14-288.4(b).           It is unclear on the current record whether

defense counsel looked at Defendant’s previous judgment, looked

up    the    statutory      reference     cited      therein,   or    caught     the

discrepancy.        We believe that defense counsel should be given

the opportunity to explain why the stipulation was made and what

information was considered beforehand.                 Accordingly, we dismiss

Defendant’s ineffective assistance of counsel claim.



10
   The discrepancy in the judgment between the cited criminal
conduct and the misdemeanor class level that was marked appears
to be a clerical error.
                              -18-
                        IV.   Conclusion

    For the foregoing reasons, we find no error with the trial

court’s judgment and dismiss Defendant’s ineffective assistance

of counsel claim.

    No error in part; dismissed in part.

    Judges STROUD and DILLON concur.

    Report per rule 30(e).
