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No. COA06-508 29th Judicial District
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA )
)
v. ) From Henderson
)
JAMES CARROLL FOSTER )
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DEFENDANT-APPELLANT‟S BRIEF
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QUESTION PRESENTED
I. Whether Mr. Foster is entitled to a new sentencing
hearing because the trial court‟s determination of Mr.
Foster‟s prior record level was not supported by
sufficient evidence and was erroneous in law?
STATEMENT OF THE CASE
On March 26, 2005, James Carroll Foster was arrested for
possession of methamphetamine in Henderson County, North
Carolina. (Rpp. 2-3) On September 2, 2005, Mr. Foster was
charged by Information with the offense and on the same day, in
Henderson County District Court, he entered a plea of guilty to
the charge. (Rpp. 4, 6-7, 12-17)
On September 2, 2005, Judge David K. Fox accepted Mr.
Foster‟s plea of guilty, found him to have eight prior record
points and a prior record level of III. (Rp. 23) Judge Fox
sentenced Mr. Foster to 5 - 6 months incarceration, suspended for
24 months of supervised probation, with 6 – 9 months of intensive
probation. (Rpp. 23-26)
Mr. Foster gave Notice of Appeal and the Office of the
Appellate Defender was appointed to the case.
GROUNDS FOR APPELLATE REVIEW
Pursuant to N.C. Gen. Stat. §7A-272 (d) and §15A-1029.1(b)
(2006), a defendant who enters a plea of guilty to an H or I
felony in district court may appeal directly to the Court of
Appeals. Pursuant to N.C. Gen. Stat. § 15A-1444 (a2)(1) (2006), a
defendant who has pled guilty is entitled to an appeal of right
if the sentence imposed upon him results from an incorrect
finding of his prior record level or prior conviction level.
STATEMENT OF THE FACTS
On March 26, 2005, Hendersonville police officers responded
to a disturbance at a convenience store. (Rp. 17) They located
the individuals who were allegedly the cause of the disturbance
in a vehicle. (Rp. 17) Mr. Foster was a passenger in that
vehicle. (Rp. 17) The officers obtained consent to search the
vehicle. (Rp. 17) Under a pile of clothes at Mr. Foster‟s feet
the officers found a small amount of methamphetamine. (Rp. 17)
ARGUMENT
I. MR. FOSTER IS ENTITLED TO A NEW SENTENCING
HEARING BECAUSE THE TRIAL COURT’S DETERMINATION OF
MR. FOSTER’S PRIOR RECORD LEVEL WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE AND WAS ERRONEOUS IN LAW.
Assignment of Error No. 41
A. Standard of Review
The question whether an out-of-state offense used in
Structured Sentencing is substantially similar to a North
Carolina offense is a question of law that must be resolved by
the trial court. State v. Hanton, 623 S.E.2d 600, 604, 2006 N.C.
App. LEXIS 45 (2006). This Court reviews questions of law de
novo.
B. Facts.
On September 2, 2005, Mr. Foster appeared before the
Honorable David Fox to enter a plea of guilty to possession of
methamphetamine. At the hearing Mr. Foster was represented by
Mitchell Brewer and the State by Thomas Brittain.
The terms of the plea agreement were as follows: “Defendant
will plead guilty to possession of schedule II – defendant will
receive a suspended sentence on condition that he receive
1
Assignment of Error 4 is contained in the Appellant‟s Motion to
Amend the Record on Appeal filed contemporaneously with this brief.
intensive probation for 6 months with drug and search clauses.
All other conditions are up to the judge – fines, etc.” (Rp. 7)
During the guilty plea hearing, after Prosecutor Brittain
gave a factual basis for the offense, he stated, “Your Honor has
the point sheet in front of you, and he agrees and stipulates
that that‟s an accurate reflection of his prior record; is that
correct, Mr. Brewer?” (Rp. 17) Defense counsel replied, “Yes,
sir.”
The prosecutor prepared the Prior Record Level Worksheet.
Neither the prosecutor nor the defense signed the stipulation
portion of the worksheet. (Rp. amendment) The Prior Record
Level Worksheet listed nine prior convictions as follows:
Offenses File No. Date of County Class Used for
Conviction PRL
purposes?
Possession of D07121 5-2-91 S.C. H Yes.
Xanax Assigned 2
points.
Possession of D156599 9-13-91 S.C. H Yes.
Marij. Assigned 2
points.
Carry Pistol D498990 9-20-93 S.C. H Yes.
Unlawfully Assigned 2
points.
Violation of 03CRS57237 2-12-04 Henderson No.
Court order
Possess drug 98 CRS 21474 3-23-98 Henderson 1 Yes.
paraphernalia Assigned 1
point.
MisD Possession “ “ “ / No.
SCH VI CS
Intox & 99 CRS 56143 12-2-99 Hend. 3 No.
Disruptive
Communicating 00 CRS 56406 1-9-01 Hend. 1 Yes.
threats Assigned 1
point.
Possess marij
03 CRS 57801 12-12-03 Hend. 3 No.
up to ½ oz.
C. The prosecution produced insufficient
evidence regarding Mr. Foster’s out of
state convictions leading the trial court
to erroneously determine that Mr. Foster
had eight prior record points and a prior
record level of III.
Pursuant to § 15A-1340.14(e)(2006), an out-of-state
misdemeanor conviction must be classified as a Class 3
misdemeanor unless the State proves by a preponderance of the
evidence that the conviction is “substantially similar” to a
Class 1 North Carolina misdemeanor. State v. Morgan, 164 N.C.
App. 298, 308, 595 S.E.2d 804, 811-12 (2004).
Section 15A-1340.14(e) further provides that an out-of-state
felony conviction should be classified as a Class I felony if the
jurisdiction in which the offense occurred classifies the offense
as a felony. If the State proves by a preponderance of the
evidence that the felony in the other jurisdiction is
“substantially similar” to an offense that is classified as
higher than a Class I felony, the conviction is treated as that
class of felony for assigning prior record level points. Morgan,
supra.
Here, the Prior Record Level Worksheet lists three
convictions, all purportedly from South Carolina and all
classified as H felonies. These three convictions should not
have been classified as H felonies because the prosecution did
not present any evidence, and there was no stipulation or other
proof, that they were felonies. The prosecution made no effort
to prove by a preponderance of the evidence whether these
offenses were misdemeanors or felonies in South Carolina.
Rather, the prosecution baldly asserted they were felonies and
incorrectly classified them as H felonies, when they should have
been classified as misdemeanors.
i. The South Carolina drug convictions.
In South Carolina, Xanax, or Alprazolam, is a Schedule IV
drug and marijuana is a Schedule I drug. S.C. Code Ann. §§ 44-53-
250 (a)(1) & 44-53-190(d)(11) (2005). Pursuant to S.C. Code Ann.
§44-53-370 (d)(2) (2005), an individual convicted of the crime of
possession of a “controlled substance classified in Schedules I
through V is guilty of a misdemeanor.” Accordingly, those two
prior out-of-state convictions should have been properly
classified as Class 3 misdemeanor convictions. To obtain any
higher classification for those offenses, the State bore the
burden of proving, by a preponderance of the evidence that the
offenses were substantially similar to a Class 1 misdemeanor
conviction in North Carolina.2
2
The State would have had mixed success in this effort depending
upon the drug and the amount involved. Xanax, or Alprazolam, is a Schedule IV
drug in North Carolina. N.C. Gen. Stat. § 90-92 (2006). Possession of less
than 100 tablets is a Class 1 misdemeanor in North Carolina. N.C. Gen. Stat. §
90-95(d)(2) (2006). Possession of 100 or more tablets is a Class I felony in
North Carolina. Id.
Marijuana is a Schedule V drug in North Carolina. N.C. Gen. Stat.
§90-94 (2006). Possession of marijuana up to a ½ ounce is a Class 3 misdemeanor
ii. The South Carolina firearm conviction.
It is not entirely clear what crime Mr. Foster committed so
as to be convicted of “Carrying a Pistol Unlawfully” in South
Carolina. The State bore the burden of resolving that issue and
of establishing that the South Carolina conviction was
substantially similar to a North Carolina offense. It appears
from undersigned counsel's review of South Carolina statutes that
there is no crime titled “Carrying a Pistol Unlawfully;” however,
there is a crime of the Unlawful Carrying of a Handgun. S.C. Cod e
Ann. §16-23-20 (2005). Pursuant to S.C. Code. Ann. §16-23-
50(A)(2)(2005), a person convicted of that offense is guilty of a
misdemeanor.
Accordingly, this prior out-of-state conviction should have
been properly classified as Class 3 misdemeanor convic tion. To
obtain any higher classification for the conviction, the State
bore the burden of proving, by a preponderance of the evidence
that the offense was substantially similar to a Class 1
misdemeanor conviction in North Carolina.3
iii. These errors were prejudicial.
in North Carolina. N.C. Gen. Stat. § 90-95(d)(4) (2006). Possession of
marijuana from ½ ounce to 1 & ½ ounces is a Class 1 misdemeanor in North
Carolina. Id. Possession of over 1 and ½ ounces of marijuana is a Class I
felony in North Carolina. Id.
3
This may have been an impossible task for the prosecution. There
is no crime in North Carolina for “carrying a pistol unlawfully.” However, the
crime of carrying a concealed weapon, specifically a pistol, is a Class 2
misdemeanor in North Carolina. N.C. Gen. Stat. § 14-269 (2006).
The failure to properly classify these three convictions was
clearly prejudicial to Mr. Foster. Most obviously, if all of
these convictions were misdemeanors and the State failed to prove
by a preponderance of the evidence that the convictions were
substantially similar to Class 1 North Carolina offenses, they
should have been properly classified as Class 3 misdemeanors.
This would have made them unusable for prior record calculation
purposes, leaving Mr. Foster with only two prior record level
points and a prior record level of II.
Alternatively, the State may have been able to prove that
some of the prior convictions were substantially similar to Class
1 North Carolina offenses. Depending on the State's evidence in
this regard, Mr. Foster could have had anywhere from three to
five prior record points and a prior record level of II or III.
Regardless of the various classifications which could have
been assigned to these convictions resulting in various possible
total prior record points, Judge Fox was clearly alarmed by the
number of alleged felony convictions. When sentencing Mr. Foster
the scope of the plea agreement was limited only to the
requirement that Mr. Foster receive six months intensive
probation. (Rp. 7) The remainder of the sentence was left to
the trial judge‟s discretion. When exercising that discretion
and sentencing Mr. Foster, Judge Fox stated,
Mr. Foster, you‟ve got a pretty bad record
here, so you‟re beginning to test the
envelope, with these convictions, about going
to prison so you‟ve got to start minding the
store, you‟ve got to stay away from this
stuff. You‟ve gotten prior controlled
substance convictions. You‟ve got eight
points for conviction purposes, and what I‟m
trying to tell you is that doesn‟t mean much
to you except this is your list of prior
records. And the first three of them are
felonies. So you‟re treading on thin ice so
be careful in the future. If you like
freedom; if you like to breath that free air,
want to go home from court, don‟t come to
court anymore, okay? (Rpp. 18-19)
Clearly Judge Fox was disturbed by Mr. Foster‟s three felony
convictions and clearly considered that when sentencing Mr.
Foster. Had the State properly listed these prior convictions as
misdemeanors instead of as H class felony convictions it is
reasonable to assume that Judge Fox may have imposed a lighter
sentence.
D. Mr. Foster did not stipulate that
these out-of-state offenses were
substantially similar to the respective
North Carolina offenses.
The Appellant anticipates the Appellee will argue this issue
is waived because defense counsel stipulated. This argument is
erroneous for the following two reasons.
First, defense counsel stipulated that the Prior Record
Level Worksheet accurately reflected Mr. Foster‟s prior
convictions. (Rp. 17) However, a stipulation to the existence of
prior convictions does not extend to a stipulation that out -of-
state offenses are substantially similar to the respective North
Carolina offenses. Morgan, 164 N.C. App. At 308, 595 S.E.2d at
811-12. Importantly, neither the prosecutor nor defense counsel
signed the stipulation found in Section III of the Prior Record
Level Worksheet which states that defense counsel stipulates “to
the accuracy of the information set out in Sec tions I and IV of
this form, including the classification and points assigned to
any out-of-state convictions….” (Rp. amendment)
Furthermore, the trial court bore the duty of correctly
determining Mr. Foster‟s prior record level. While N.C. Gen.
Stat. § 15A-1340.14(f)(1) (2006), provides a prior conviction can
be proven by a stipulation of the parties, that section does not
absolve the trial court of the obligation to properly determine
the class of offense and a defendant‟s prior record level. In
State v. Toomer, No. COA03-945, 2004 N.C. App. LEXIS 673 at *3
(May 4, 2004)(unpublished)4, this Court held that a defendant‟s
stipulation to his prior record level which listed a prior
offense as a Class 1 misdemeanor that should have been a Class 3
misdemeanor was not binding on this Court because “[a]ny
stipulation as to the number of record points attributable to an
offense and as to the prior record level involves a question of
law.”
E. This issue is properly preserved for
appellate review.
The Appellant anticipates that the Appellee may argue that
this issue has not been preserved for appellate review because
4
A copy of the opinion is attached with this brief.
Mr. Foster did not object to the trial court‟s findings regarding
his prior record level and prior record points. This argument is
without merit for the following two reasons.
First, this Court recently stated that “an error at
sentencing is not considered an error at trial for the purpose of
Rule 10(b)(1) because this rule is „directed to matters which
occur at trial and upon which the trial court must be given an
opportunity to rule in order to preserve the question for
appeal.‟” State v. Curmon, N.C. App. , 615 S.E.2d 417,
422 (2005)(quoting State v. Hargett, 157 N.C. App. 90, 93, 577
S.E.2d 703, 705 (2003)(citing State v. Canady, 330 N.C. 398, 410
S.E.2d 875 (1991)). Accordingly, Mr. Foster was not required by
Rule 10(b)(1) to object during sentencing in order to properly
“preserve this issue for appellate review.” Id.
Second, our Supreme Court has held that an error based upon
insufficient evidence can be reviewed despite the lack of an
objection. State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991);
N.C. Gen. Stat. 15A-1446(d)(5)(2006).
F. Conclusion
The prosecution failed to prove by a preponderance of the
evidence that the three out-of-state convictions were felonies.
Defense counsel‟s stipulation did not extend to whether these
out-of-state offenses were substantially similar to any
respective North Carolina offenses. Therefore, the trial court
relied upon insufficient evidence in concluding that Mr. Foster
had eight prior record points and a prior record level of III.
CONCLUSION
For all the foregoing reasons, defendant respectfully
contends that he be afforded a new sentencing hearing.
Respectfully submitted this the day of May, 2006.
______________________________
Katherine Jane Allen
Assistant Appellate Defender
Staples Hughes
Appellate Defender
Office of the Appellate Defender
123 West Main Street, Suite 600
Durham, North Carolina 27701
(919) 560-3334
ATTORNEYS FOR DEFENDANT
Katherine.J.Allen@nccourts.org
Staples.S.Hughes@nccourts.org
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Defendant-Appellant‟s
Brief has been filed by mail pursuant to Rule 26 by sending it
first-class mail, postage prepaid to John Connell, the Clerk of
the North Carolina Court of Appeals, Post Office Box 2779,
Raleigh, North Carolina 27602, by placing it in a depository for
that purpose.
I further hereby certify that a copy of the above and
foregoing Defendant-Appellant‟s Brief has been duly served upon
Michael Youth, Assistant Attorney General, North Carolina
Department of Justice, Post Office Box 629, Raleigh, North
Carolina 27602, by first-class mail, postage prepaid.
This the day of May, 2006.
____________________________
Katherine Jane Allen
Assistant Appellate Defender
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