 An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1279

                                   Filed: 5 May 2015

 STATE OF NORTH CAROLINA

                                              Guilford County
              v.
                                              No. 13 CRS 68566

 NICHOLAS JAMES SPRY



      On writ of certiorari by defendant from judgment entered 25 November 2013

by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of

Appeals 17 April 2015.

      Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke
      Haywood, for the State.

      Russell J. Hollers III for defendant-appellant.


      TYSON, Judge.


      Nicholas James Spry (“Defendant”) appeals from judgment entered after he

pled guilty to possession of heroin. Defendant contends the trial court erred by

sentencing him as a prior record level III offender rather than as a prior record level

IV offender. We affirm.

                                     I. Background
                                     STATE V. SPRY



                                   Opinion of the Court




        Defendant pled guilty to possession of heroin, a Class I felony, on 7 November

2013.    Defendant stipulated to the convictions listed on his prior record level

worksheet, that he had eight prior record level points, and that he had a prior record

level of III. The trial court accepted Defendant’s plea and sentenced him to 6 to 17

months in prison, suspended the sentence, and placed Defendant on supervised

probation for 36 months. One of the terms of Defendant’s probation was to submit to

electronic house arrest for no less than 18 months. On 8 November 2013, Defendant

submitted a written notice of appeal to the trial court, but appellate entries were not

entered at that time. On 3 April 2014, this Court allowed Defendant’s petition for

writ of certiorari to permit a belated appeal.

                                       II. Issues

        In his sole argument on appeal, Defendant contends the trial court erred by

relying on his stipulation to enter judgment based on a prior record level of III, when

there was evidence of another conviction that would have elevated his prior record

level to IV. Paradoxically, Defendant contends that increasing his prior record level

would have benefited him by making him eligible for an active term of imprisonment,

rather than an intermediate punishment, which would have been shorter than the

period of electronic house arrest imposed by the trial court. We disagree.

                               III. Standard of Review



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                                      STATE V. SPRY



                                    Opinion of the Court




      The State bears the burden of proving the existence of a prior conviction by the

preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.14(f) (2013). One of the

methods of meeting that burden includes a stipulation by the parties. Id. “While a

stipulation need not follow any particular form, its terms must be definite and certain

in order to afford a basis for judicial decision, and it is essential that they be assented

to by the parties or those representing them.” State v. Alexander, 359 N.C. 824, 828,

616 S.E.2d 914, 917 (2005) (citations and internal quotation marks omitted). A

prosecutor has the discretion to choose which prior convictions he submits to be

included in a defendant’s prior record level calculation. State v. Mungo, 213 N.C. App.

400, 406, 713 S.E.2d 542, 546 (2011).

                                      IV. Analysis

      The trial court properly based its prior record level calculation on the parties’

stipulation. Defendant contends that counsel’s unsworn statements during the plea

hearing regarding an out-of-county offense constituted a stipulation, but we are not

persuaded. Although counsel did note the existence of the offense, he never made

any statement indicating that he intended to stipulate to its existence for the purpose

of calculating Defendant’s prior record level.        Instead, it appears the State and

Defendant both omitted that offense from the prior record stipulation. The prosecutor

also acknowledged that he was aware of the offense but did not list it on the



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                                     STATE V. SPRY



                                   Opinion of the Court




worksheet. Neither party objected to the omission of the offense from Defendant’s

prior record level stipulation, and their silence supports the trial court’s reliance on

the written stipulation. Alexander, 359 N.C. at 828, 616 S.E.2d at 917.

      Defendant cannot demonstrate prejudice from the omission of the offense from

his prior record level. Defendant contends that inclusion of the offense would elevate

his prior record level from a III to a IV, making him eligible for an active term of

imprisonment rather than an intermediate punishment. Defendant further contends

that his 18-month term of house arrest is longer than the 17-month term of

imprisonment he could have received as an active punishment.

                                    V. Conclusion

      Although Defendant may be unhappy with electronic house arrest, he cannot

reasonably claim he was prejudiced by the imposition of an intermediate punishment

based on a lower prior record level rather than an active prison term based on a

greater prior record level.

      Presuming arguendo, Defendant should have been sentenced with a prior

record level of IV, he was still eligible to be sentenced to an intermediate punishment.

Defendant’s calculation of his potential active sentence as a level IV offender is in

error. Defendant could have received an active term of imprisonment longer than the

18-month term of house arrest. See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2013) (in the



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                                  STATE V. SPRY



                                Opinion of the Court




presumptive range, Defendant could have received a 19-month maximum). The trial

court’s judgment is affirmed.

      AFFIRMED.

      Judges BRYANT and DIETZ concur.

      Report per Rule 30(e).




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