An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1201
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA

      v.                                        Mecklenburg County
                                                Nos. 12 CRS 27326, 211387
CHRISTOPHER JEROME DAVIS



      Appeal by Defendant from judgment entered 30 April 2013 by

Judge Nathaniel J. Poovey in Mecklenburg County Superior Court.

Heard in the Court of Appeals 23 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Carole Biggers, for the State.

      Guy J. Loranger for Defendant.


      STEPHENS, Judge.


      Defendant       appeals   from      the   judgment    entered     upon    his

convictions for felony possession of cocaine and having attained

habitual felon status.          Defendant contends the trial court erred

in calculating his prior record level.               We agree.       Accordingly,

we   reverse    the    judgment     and    remand    the   matter     for   a   new

sentencing hearing.
                                               -2-
       On 30 April 2013, a jury found Defendant guilty of both

charges.      At sentencing, Defendant stipulated to the contents of

the State’s prior record level worksheet, and the trial court

found     Defendant         had       fourteen       prior       record      level      points,

resulting in a prior record level of V.                               Thirteen points were

assigned for the prior offenses listed on the worksheet, and one

point was added because the elements of the current possession

offense were included in a prior offense.                              The court sentenced

Defendant       to    a    presumptive-range           term       of    40   to   60     months

imprisonment,         based      on    his    habitual         felon    status     and      prior

record level.

       Defendant’s sole argument on appeal is that the trial court

erred by relying upon the three felonies used to establish his

habitual felon status to support its prior record level finding.

The State concedes the trial court erred, and we agree.

       “For     purposes         of    sentencing,         a    trial     court      must    (1)

ascertain       the       type     and      number     of       the     defendant’s         prior

convictions, (2) calculate the sum of the points assigned for

each    conviction,         and       (3)    based    upon      the     defendant’s         total

points, determine the defendant’s prior record level.”                                State v.

Powell,    __    N.C.       App.      __,    __,     732       S.E.2d    491,     493    (2012)

(citation omitted).               The State bears the burden of proving a
                                          -3-
defendant’s        prior     convictions        by    a     preponderance         of   the

evidence.        N.C. Gen. Stat. § 15A-1340.14(f) (2013).                   Convictions

used to establish a defendant’s habitual felon status may not

also   be   used    in     the    calculation    of       his   prior    record    level.

State v. Miller, 168 N.C. App. 572, 575, 608 S.E.2d 565, 567

(2005); N.C. Gen. Stat. § 14-7.6 (2013).

       In this case, Defendant stipulated to the accuracy of the

State’s prior record level worksheet, and the trial court relied

upon that stipulation to support its calculation of Defendant’s

prior record level.              As Defendant correctly observes, however,

three of the offenses listed on his prior record level worksheet

were    also      used     to     establish     his       habitual      felon     status:

convictions       for    possession     with     intent         to   sell   or    deliver

cocaine     in    cases     96    CRS   53790    and       01    CRS    163533,    and   a

conviction for possession of cocaine in case 93 CRS 12327.1

       The remaining felonies listed on the prior record level

worksheet are insufficient to support the court’s prior record

level calculation.              The worksheet lists two class G felonies,



1
  We note that the prior record level worksheet lists the date of
conviction for felony possession of cocaine in case 93 CRS 12327
as 30 October 1995, but the judgment in that case and the
habitual felon indictment in the instant case each list the
conviction date as 22 April 1993.     A copy of the judgment was
introduced into evidence during the habitual felon phase of the
trial in this case.
                                         -4-
each worth four prior record level points; one class H felony,

worth two points; and one class 1 misdemeanor, worth one point.

See N.C. Gen. Stat. § 15A-1340.14(a)(3)-(5).                      The worksheet also

contains   a   finding    that    all    of     the       elements     of   the    present

possession offense were included in a prior offense, which is

worth one point.         N.C. Gen. Stat. § 15A-1340.14(a)(6).                        Thus,

the worksheet to which Defendant stipulated supported a finding

of a total of twelve prior record level points for habitual

felon   sentencing    purposes,         which    in        turn   is    sufficient      to

support only a prior record level of IV rather than V.                            See N.C.

Gen. Stat. § 15A-1340.14(c).

    Under his proper prior record level as an habitual felon,

Defendant’s permissible range of minimum terms was 30 to 38

months, two months shorter than the 40-month minimum the trial

court   imposed.      N.C.       Gen.    Stat.        §    15A-1340.17(c)          (2013).

Accordingly,     we      reverse        the     judgment          and       remand     for

resentencing.

    REVERSED and REMANDED.

    Judges HUNTER, ROBERT C., and ERVIN concur.

    Report per Rule 30(e).
