             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



                                         -2-
                                      STATE V. MCNEIL

                                      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).

                                              -3-
                                    STATE V. MCNEIL

                                    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



                                           -4-
                                  STATE V. MCNEIL

                                  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.



                                         -5-
                                 STATE V. MCNEIL

                                 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.




                                        -6-
