Criminal Practice –  Sentencing – Prior Record Level – Stipulation – Plea Agreement

Where defendant stipulated to a classification of a past conviction for carrying a concealed weapon that is impossible under the statute, he has – on appeal – successfully repudiated his plea agreement, which must be set aside in its entirety.

We vacate the judgment against defendant and set aside the plea agreement. We remand to the trial court for further proceedings on the charges in the indictments.

Although defendant stipulated that his 1993 conviction for carrying a concealed weapon was a Class 1 misdemeanor, on appeal, defendant points out that G.S. § 14-269(c), “Carrying concealed weapons,” 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. Thus, a Class 1 misdemeanor is impossible under this statute.

Because § 14-269 does not provide for a violation of its provisions to be classified as a Class 1 misdemeanor, we conclude State v. Arrington, 371 N.C. 518, 819 S.E.2d 329 (2018), is inapplicable and that the trial court erred in accepting defendant’s stipulation.

Assuming, as we must, 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 below) was not harmless, as defendant’s prior-record-level points would be reduced to 17, making him a prior-record level V instead of the prior-rec0rd level VI at which he was sentenced.

Defendant’s sentence was imposed as part of a plea agreement, which defendant has successfully repudiated. Thus, the plea 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.

Drug Paraphernalia Possession

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. 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.

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. We disagree and conclude Arrington controls.

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. Thus, defendant was stipulating that the facts underlying his conviction justify that classification. Therefore, under Arrington, 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.

Maintaining a Vehicle/Dwelling

Defendant stipulated that his 1993 conviction for maintaining a vehicle/dwelling warranted a Class I felony classification. However, the judgment – which was before the trial court – clearly shows that defendant’s conviction was a misdemeanor.

Arrington does not apply where there is clear record evidence demonstrating the parties’ stipulation was an error or mistaken. Thus, we defer to the record evidence rather than a defendant’s stipulation.

Because the record, including evidence presented to the trial court, discloses that defendant’s 1993 maintaining-a-vehicle/dwelling conviction was a misdemeanor and as G.S. § 90-108 only has one misdemeanor classification (Class 1), the trial court erred by assigning two points, instead of one, to this conviction.

Vacated and remanded.

State v. Green (Lawyers Weekly No. 011-189-19, 16 pp.) (Toby Hampson, J.) Appealed from Craven County Superior Court (John Nobles, J.) Brittany Brown for the state; Winifred Dillon for defendant. N.C. App.