               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-1114

                                 Filed: 16 July 2019

Craven County, Nos. 16 CRS 53678, 17 CRS 448, 17 CRS 449

STATE OF NORTH CAROLINA

              v.

JAMES BROWN GREEN, JR.


        Appeal by Defendant from Judgment entered 24 April 2018 by Judge John E.

Nobles, Jr. in Craven County Superior Court. Heard in the Court of Appeals 10 April

2019.


        Attorney General Joshua H. Stein, by Assistant Attorney General Brittany K.
        Brown, for the State.

        Winifred H. Dillon, Attorney at Law, for defendant-appellant.


        HAMPSON, Judge.


                       Factual and Procedural Background

        James Brown Green, Jr. (Defendant) appeals from his convictions for

Possession of a Firearm by a Felon, Possession with Intent to Sell/Deliver Cocaine

(PWISD Cocaine), Possession of Drug Paraphernalia, and having attained the status

of a Habitual Felon. Relevant to this appeal, the Record before us tends to show the

following:
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                                        Opinion of the Court



       On 7 August 2017, a Craven County Grand Jury returned true Bills of

Indictment charging Defendant with one count of PWISD Cocaine, Possession of Drug

Paraphernalia, Possession of a Firearm by a Felon, and attaining Habitual-Felon

status. Pursuant to a plea agreement, Defendant entered an Alford plea1 to all four

charges on 24 April 2018. As recorded on the Transcript of Plea, the parties’ plea

agreement provided that Defendant’s offenses would be consolidated for judgment

into one habitual-felon sentence and that Defendant would receive an “active

sentence of 87–117 months bottom mitigated.”

       Defendant stipulated to a Prior-Record-Level Worksheet (Worksheet)

presented by the State that listed Defendant’s prior convictions in North Carolina.

The Worksheet disclosed a total of 19 points, making Defendant a prior-record level

VI offender for sentencing purposes. Relevant to this appeal, the Worksheet listed

three prior convictions that Defendant contends were erroneously classified: (1) 1994

Possession of Drug Paraphernalia, classified as a Class 1 misdemeanor; (2) 1993

Maintaining a Vehicle/Dwelling for the use or storage of controlled substances,

classified as a Class I felony; and (3) 1993 Carrying Concealed Weapon, classified as

a Class 1 misdemeanor. The State also submitted, as exhibits, copies of three prior

judgments, which were used for the Habitual-Felon Indictment.                       One of these

judgments showed that the 1993 Maintaining-a-Vehicle/Dwelling conviction


       1See North Carolina v. Alford, 400 U.S. 25, 37-39, 27 L. Ed. 2d 162, 171-72 (1970) (allowing a
defendant to plead guilty while maintaining his factual innocence).

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constituted a violation of N.C. Gen. Stat. § 90-108. According to this judgment, the

conviction was classified as a misdemeanor but did not include the specific class of

misdemeanor.

      After conducting a plea colloquy with Defendant and after hearing the

Prosecution’s summary of the factual basis for the plea, the trial court accepted

Defendant’s Alford plea. The trial court then sentenced Defendant to the agreed-

upon prison term of 87 to 117 months, which was in the mitigated range based on

Defendant’s class of offense and prior-record level as calculated on the Worksheet.

Defendant timely filed his Notice of Appeal on 30 April 2018.

                                     Jurisdiction

      Defendant’s appeal is properly before this Court pursuant to Section 15A-

1444(a2)(1) of our General Statutes. See N.C. Gen. Stat. § 15A-1444(a2)(1) (2017)

(providing “[a] defendant who has entered a plea of guilty . . . is entitled to appeal as

a matter of right the issue of whether the sentence imposed . . . [r]esults from an

incorrect finding of the defendant’s prior record level”).

                                         Issue

      The sole issue on appeal is whether the trial court erred in calculating

Defendant’s prior-record level by (1) including Defendant’s 1994 Possession-of-Drug-

Paraphernalia conviction in Defendant’s prior-record-level calculation; (2) classifying

Defendant’s 1993 Maintaining-a-Vehicle/Dwelling conviction as a Class I felony; and



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(3) counting Defendant’s 1993 Carrying-Concealed-Weapon conviction as a Class 1

misdemeanor.2

                                              Analysis

                                      I. Standard of Review

       “The determination of an offender’s prior record level is a conclusion of law that

is subject to de novo review on appeal.” Bohler, 198 N.C. App. at 633, 681 S.E.2d at

804 (citation omitted). “Under a de novo review, the court considers the matter anew

and freely substitutes its own judgment for that of the lower tribunal.” State v.

Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation

marks omitted).

                                      II. Prior-Record Level

       Generally, “[t]he 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[.]” N.C. Gen. Stat. § 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




       2  Although Defendant did not object to the trial court’s prior-record-level calculation, we note
this issue is automatically preserved for appellate review pursuant to our General Statutes and
established case law. See N.C. Gen. Stat. § 15A-1446(d)(18) (2017); see also State v. Meadows, 371
N.C. 742, 747, 821 S.E.2d 402, 406 (2018) (recognizing arguments “that ‘[t]he sentence imposed was
unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed,
or is otherwise invalid as a matter of law’ ” are statutorily preserved (citing N.C. Gen. Stat. § 15A-
1446(d)(18))); State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009) (“It is not necessary
that an objection be lodged at the sentencing hearing in order for a claim that the record evidence does
not support the trial court’s determination of a defendant’s prior record level to be preserved for
appellate review.” (citations omitted)).

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the offender before the court is the same person as the offender named in the prior

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

1340.14(c). Standing alone, a sentencing worksheet prepared by the State listing a

defendant’s prior convictions is insufficient proof of those convictions.         State v.

Alexander, 359 N.C. 824, 827, 616 S.E.2d 914, 917 (2005). Rather, prior convictions

can be proven by any of the following methods:

          (1) Stipulation of the parties.

          (2) An 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 Vehicles, or of the Administrative
          Office of the Courts.

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

Id. § 15A-1340.14(f)(1)-(4).

      Here, the trial court, relying on the parties’ stipulations, sentenced Defendant

as a prior-record level VI with 19 prior-record-level points based on eight prior

convictions.   Defendant contends three of his prior convictions were wrongly

calculated. Although neither the State nor Defendant has pointed us to State v.

Arrington, we believe this precedent instructs our analysis in this case where

Defendant stipulated to his prior-record level. See 371 N.C. 518, 819 S.E.2d 329



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(2018). However, this case also illustrates certain challenges in the application of

Arrington, such as where the underlying record shows a stipulation to be in error or

where the stipulation is to a classification for an offense that conflicts with the actual

classification in the applicable criminal statute.

      Our Court recently summarized the Supreme Court’s decision in Arrington:

              In Arrington, the defendant entered a plea agreement and
          stipulated to a sentencing worksheet showing his prior offenses,
          including a second-degree murder conviction designated as a B1
          offense. [State v. Arrington, 371 N.C. 518,] 519, 819 S.E.2d [329,]
          330 [(2018)]. The defendant’s second-degree murder conviction
          stemmed from acts committed prior to 1994; however, the
          Legislature did not divide this crime into two classifications, B1
          and B2, until after the defendant’s 1994 conviction. Id. at 522-25,
          819 S.E.2d at 332-34. Thus, the defendant’s second-degree
          murder conviction could have been classified as a B1 or B2
          offense, depending on certain factual circumstances existing at
          the time of the murder; however, the defendant did not explain
          the factual underpinnings of his conviction and merely stipulated
          to the B1 classification. Id. at 520-21, 819 S.E.2d at 330-31. This
          Court vacated the trial court’s judgment and held that this
          determination—whether the second-degree murder conviction
          should be classified as a B1 or B2 offense for sentencing
          purposes—constituted a legal question to which the defendant
          could not stipulate. Id. at 521, 819 S.E.2d at 331 (citation
          omitted).

              Our Supreme Court reversed this Court, reasoning that
          “[e]very 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.”               Id.
          “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.” Id. at 522, 819
          S.E.2d at 331. “By stipulating that the former conviction of
          second-degree murder was a B1 offense, defendant properly


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          stipulated that the facts giving rise to the conviction fell within
          the statutory definition of a B1 classification.” Id. at 522, 819
          S.E.2d at 332. “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.” Id. at 524, 819 S.E.2d at
          333.      Our Supreme Court further acknowledged that
          “[s]tipulations of prior convictions, including the facts underlying
          a prior offense and the identity of the prior offense itself, are
          routine[,]” and that because a defendant is “the person most
          familiar with the facts surrounding his offense, . . . this Court
          need not require a trial court to pursue further inquiry or make
          defendant recount the facts during the hearing.” Id. at 526, 819
          S.E.2d at 334 (citation omitted).

State v. Salter, ___ N.C. App. ___, ___, 826 S.E.2d 803, 808 (2019).

      In both Arrington and Salter, the respective defendants stipulated to

classifications of prior offenses that were supported, at least at some level, by the

applicable existing criminal statutes defining those offenses.         In Arrington, our

Supreme Court held the defendant stipulated to the existence of facts converting his

prior second-degree murder conviction into a Class B1 offense. In Salter, applying

Arrington, we held Defendant could stipulate to a factual underpinning that

supported converting his no-operator’s-license violation into a Class 2 misdemeanor

under the applicable statutes. The case currently before us presents three additional

scenarios implicating Arrington: first, where Arrington most clearly applies; second,

where Arrington should not apply; and third, where Arrington could apply.

      A. 1994 Possession-of-Drug-Paraphernalia Conviction



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      Defendant first argues the trial court erred in counting his 1994 Possession-of-

Drug-Paraphernalia conviction as a Class 1 misdemeanor. Prior to 2014 and thus at

the time of Defendant’s 1994 Possession-of-Drug-Paraphernalia conviction, our

General Statutes only contained one classification for possession of drug

paraphernalia—Class 1 misdemeanor; however, in 2014, our Legislature divided

possession of drug paraphernalia into two offenses. See 2014 N.C. Sess. Law 119, §

3 (N.C. 2014).     Under this new statutory scheme, possession of marijuana

paraphernalia is a Class 3 misdemeanor; whereas, possession of non-marijuana drug

paraphernalia remains a Class 1 misdemeanor.             Compare N.C. Gen. Stat. § 90-

113.22A (2017) (possession of marijuana paraphernalia), with id. § 90-113.22 (2017)

(possession of non-marijuana drug paraphernalia). Defendant contends that because

“the State presented no evidence that [Defendant’s] prior conviction for possession of

drug paraphernalia . . . was for non-marijuana paraphernalia[,]” this conviction

should not have been included in his prior-record-level calculation. See id. § 15A-

1340.14(b)(5) (excluding Class 3 misdemeanors from a defendant’s prior-record-level

calculus). We, however, disagree and conclude Arrington controls, as Defendant’s

stipulation falls within Arrington’s ambit.

      Here, on the Worksheet, Defendant—as “the person most familiar with the

facts surrounding his offense”—stipulated that his 1994 Possession-of-Drug-

Paraphernalia conviction was classified as a Class 1 misdemeanor. Arrington, 371



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                                   Opinion of the Court



N.C. at 526, 819 S.E.2d at 334 (citation omitted). Thus, Defendant was “stipulating

that the facts underlying his conviction justify that classification.” Id. at 524, 819

S.E.2d at 333. Therefore, under Arrington, we conclude there was no error in the

trial court’s inclusion of one record point based on Defendant’s stipulation to the 1994

Possession-of-Drug-Paraphernalia      conviction    being   classified   as   a   Class   1

misdemeanor. See id.

      Defendant contends State v. McNeil requires a different result. McNeil held:

“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.” ___ N.C. App. ___, ___, 821 S.E.2d 862, 863, temporary stay

allowed, ___ N.C. ___, 820 S.E.2d 519 (2018). However, there is a crucial distinction

between McNeil and the case sub judice—the defendant in McNeil never stipulated

to his prior-record level. See id. at ___, 821 S.E.2d at 864 (“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.”); see

also Alexander, 359 N.C. at 827, 616 S.E.2d at 917 (“There is no doubt that a mere

worksheet, standing alone, is insufficient to adequately establish a defendant’s prior

record level.”). Thus, Arrington was not applicable to McNeil, which in turn has no

bearing on the present case.



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                                   Opinion of the Court



       Here, however, Defendant’s stipulation to this conviction’s classification is the

prototypical situation to which Arrington applies. Just as in Arrington, at the time

of Defendant’s 1994 Possession-of-Drug-Paraphernalia conviction, the governing

statute only had one classification for this crime. See N.C. Gen. Stat. § 90-113.22

(1993) (listing all types of possession-of-drug-paraphernalia violations as a Class 1

misdemeanor); see also Arrington, 371 N.C. at 522, 819 S.E.2d at 332 (explaining that

at the time of the defendant’s 1994 second-degree murder conviction, “all second-

degree murders were classified at the same level for sentencing purposes” (citation

omitted)). Again, just as in Arrington, the Legislature subsequently divided this

crime into two different classifications depending on the type of drug paraphernalia

possessed. See 2014 N.C. Sess. Law 119, § 3 (N.C. 2014) (creating two types of

possession-of-drug-paraphernalia crimes with differing classifications for sentencing

purposes); see also Arrington, 371 N.C. at 522-23, 819 S.E.2d at 332 (explaining the

Legislature’s 2012 division of second-degree murder into two separate classifications

for sentencing purposes). Thereafter, Defendant was convicted of a new crime and

during sentencing stipulated that his prior Possession-of-Drug-Paraphernalia

conviction qualified for the higher classification for sentencing. Therefore, just as in

Arrington, Defendant could and did stipulate that this classification was proper. See

id. at 527, 819 S.E.2d at 335 (upholding the defendant’s stipulation that his prior

second-degree murder conviction constituted a Class B1 conviction, which was the



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higher of the two classifications). For this reason, Defendant’s Possession-of-Drug-

Paraphernalia conviction fits squarely within Arrington.

      B. 1993 Maintaining-a-Vehicle/Dwelling Conviction

      Defendant also challenges the trial court’s calculation of his 1993 Maintaining-

a-Vehicle/Dwelling conviction.     Specifically, Defendant contends the trial court

committed error by assigning two points, instead of one, to the 1993 Maintaining-a-

Vehicle/Dwelling conviction.     The Worksheet shows the trial court counted this

conviction as a Class I felony. However, Defendant points out that the judgment for

this conviction, which was submitted by the State at the sentencing hearing, shows

this conviction constituted a violation of N.C. Gen. Stat. § 90-108 and was classified

as a misdemeanor, although no specific class was designated.

      Section 90-108 of our General Statutes sets the penalty for maintaining a

vehicle or dwelling for keeping controlled substances and provides three possible

classifications of this crime for sentencing purposes—Class 1 misdemeanor, Class I

felony, or Class G felony. N.C. Gen. Stat. §§ 90-108(b), -108(b)(1)-(2) (2017).

      Here, Defendant stipulated that this conviction warranted a Class I felony

classification for sentencing purposes; however, the judgment, which was before the

trial court, clearly shows that Defendant’s conviction was a misdemeanor. Although




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                                         Opinion of the Court



certain language from Arrington suggests Defendant’s stipulation could be proper,3

we determine Arrington does not apply where there is clear record evidence

demonstrating the parties’ stipulation was an error or mistaken.                        Thus, when

evidence (such as a certified copy of the judgment) is presented to the trial court

conclusively showing a defendant’s stipulation is to an incorrect classification—as is

the case here—Arrington does not apply, and a reviewing court should defer to the

record evidence rather than a defendant’s stipulation.

        We find support for this position from the plain language of the governing

statute. Section 15A-13.40.14(f) places the burden of proof on the State to establish

a defendant’s prior convictions, including the requirement: “The prosecutor shall

make all feasible efforts to obtain and present to the court the offender's full record.”

N.C. Gen. Stat. § 15A-1340.14(f).              The statute also expresses an evidentiary

preference for such records:

            The original or a copy of the court records or a copy of the records
            maintained by the Department of Public Safety, the Division of
            Motor Vehicles, or of the Administrative Office of the Courts,
            bearing the same name as that by which the offender is charged,
            is prima facie evidence that the offender named is the same
            person as the offender before the court, and that the facts set out
            in the record are true.

Id.



        3 See Arrington, 371 N.C. at 526, 819 S.E.2d at 334 (explaining that once a defendant stipulated
to a prior conviction’s classification, a trial court need not “pursue further inquiry or make defendant
recount the facts during the [sentencing] hearing” (citation omitted)).

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                                  Opinion of the Court



      Here, because the Record in this case, including evidence presented to the trial

court, discloses that Defendant’s 1993 Maintaining-a-Vehicle/Dwelling conviction

was a misdemeanor and as Section 90-108 only has one misdemeanor classification

(Class 1), the trial court erred by assigning two points, instead of one, to this

conviction.

      C. 1993 Carrying-Concealed-Weapon Conviction

      Lastly, Defendant asserts the trial court erred in counting his 1993 Carrying-

Concealed-Weapon conviction as a Class 1 misdemeanor. Here, again, Defendant’s

Worksheet lists his conviction for “Carrying Concealed Weapon” as a Class 1

misdemeanor, and Defendant stipulated to this classification. On appeal, Defendant

points us to Section 14-269(c) of our General Statutes, titled “Carrying concealed

weapons[,]” which provides that a defendant’s first carrying-concealed-weapon

offense is a Class 2 misdemeanor, while a second offense is considered a Class H

felony. N.C. Gen. Stat. § 14-269(c) (2017). The State does not contest that this is the

applicable statute.

      Defendant argues because the Worksheet does not list any convictions for

carrying concealed weapon prior to the 1993 conviction, “this prior conviction was

incorrectly counted, and one prior record point [was] incorrectly assessed.” The State

claims the classification of this offense depends on a question of fact—“whether the




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                                  Opinion of the Court



1993 carrying a concealed weapon conviction was Defendant’s first offense”—to which

Defendant could and did stipulate.

      As    discussed   supra,   however,   Section      14-269(c)   provides   only   two

classifications for a violation of its provisions—either a Class 2 misdemeanor or Class

H felony.    Defendant, however, stipulated that his conviction was a Class 1

misdemeanor, which is impossible under this statute.

      Here is where Arrington creates a conundrum for a reviewing court. While the

State offers no statutory support for this stipulation, our own research reveals there

is a possible, albeit convoluted, factual scenario under which Defendant could have

been convicted of a Class 1 misdemeanor for an offense that could be referred to in

shorthand as “Carrying Concealed Weapon.” Specifically, Section 14-415.21(a1) of

our General Statutes provides: “A person who has been issued a valid [concealed-

carry] permit who is found to be carrying a concealed handgun in violation of

subsection (c2) of [N.C. Gen. Stat. §] 14-415.11 shall be guilty of a Class 1

misdemeanor.” N.C. Gen. Stat. § 14-415.21(a1) (2017). In turn, Section 14-415.11(c2)

prohibits the carrying of a concealed handgun while consuming alcohol. Id. § 14-

415.11(c2) (2017). Therefore, a scenario exists under which Defendant’s stipulation

could be possible and thus upheld under Arrington and Salter, where we found

statutory support for the classification of the offense under the applicable statutes.

However, we do not believe the intent of Arrington was to require a reviewing court



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                                  Opinion of the Court



to undertake sua sponte a voyage of discovery through our criminal statutes to locate

a possibly applicable statute and imagine factual scenarios in which it could apply.

Rather, we defer to the parties who stipulated to the prior conviction as to what

statute applies. Therefore, because Section 14-269 does not provide for a violation of

its provisions to be classified as a Class 1 misdemeanor, we conclude Arrington is

inapplicable and that the trial court erred in accepting Defendant’s stipulation.

      Having determined that Defendant's stipulation was invalid, the only

remaining question is the effect of our holding on Defendant's guilty plea. Assuming,

as we must on the Record and arguments before us, Defendant is correct in that this

prior conviction should have been classified as a Class 2 misdemeanor, the trial

court’s miscalculation of this conviction and the Maintaining-a-Vehicle/Dwelling

conviction (discussed in part B above) was not harmless, as Defendant’s prior-record-

level points would be reduced to 17, making him a prior-record level V. See id. § 15A-

1340.14(b)(5) (excluding Class 2 misdemeanors from a defendant’s prior-record-level

calculus); cf. State v. Smith, 139 N.C. App. 209, 220, 533 S.E.2d 518, 524 (2000)

(holding that error in calculating prior-record-level points is harmless if it does not

affect the ultimate prior-record-level determination).

      Defendant, thus, contends we should simply remand for resentencing at prior-

record level V. We disagree because Defendant’s sentence was imposed as part of a

plea agreement, which Defendant has successfully repudiated. Rather, the plea



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agreement must be set aside in its entirety, and the parties may either agree to a new

plea agreement or the matter should proceed to trial on the original charges in the

indictments. See, e.g., State v. Rico, 218 N.C. App. 109, 122, 720 S.E.2d 801, 809

(Steelman, J., dissenting) (concluding judgment should be vacated, guilty plea set

aside, and the case remanded for disposition of original charges where trial court

erroneously imposed aggravated sentence based solely on defendant's guilty plea and

stipulation as to aggravating factor), rev'd per curiam for reasons stated in dissent,

366 N.C. 327, 734 S.E.2d 571 (2012).

                                    Conclusion

       Accordingly, for the foregoing reasons, we vacate the Judgment against

Defendant and set aside the plea agreement in its entirety. We remand to the trial

court for further proceedings on the charges contained in the indictments, including

trial, if necessary.

       VACATED AND REMANDED.

       Judges DILLON and MURPHY concur.




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