Math teachers find themselves incessantly reminding students that “this is why you need to show your work.” The North Carolina Court of Appeals recently found itself in much the same position in remanding a case so that the trial court can recheck its math and ordering a new sentencing hearing because it couldn’t reasonably determine whether the lower court properly calculated a defendant’s felony convictions in determining his prior record level.
James Bunting was found guilty of several drug offenses in New Hanover County Superior Court and pleaded guilty to being a habitual felon. On appeal, he argued that the trial court erred by sentencing him as a Level IV offender under North Carolina’s the Structured Sentencing Act because it was unclear which convictions were used to calculate his record level.
In its Oct. 5 decision, the appeals court said that there were more questions than answers in the trial court’s calculation.
“After careful review, we remand for a new sentencing hearing because the terms of the stipulation fail to definitively identify which convictions the trial court used to calculate Defendant’s prior record level,” Judge Jeff Carpenter wrote for the court.
Numbers didn’t add up
After being convicted of three felony drug charges in January 2020, Bunting pleaded guilty to habitual felon status and stipulated to a prior record level worksheet listing 18 convictions, 10 of which were assigned prior record level points: Three out-of-state convictions, two North Carolina felony convictions, two misdemeanor convictions, and three felony convictions that the state used to establish Bunting’s status as a habitual felon.
As a Level IV offender, he was sentenced to 80 to 108 months in prison.
The state crossed out all but one of the out-of-state convictions, the opinion noted. Assuming that the remaining out-of-state conviction was for a crime that would be a felony under North Carolina law—the lower court didn’t make this determination, but is required to—the eight remaining convictions would total 15 points. A range of 10-13 points constitutes a Level IV offender for sentencing purposes.
On a record level worksheet, the state initially assigned 14 points to Bunting’s five North Carolina felonies (each Class H or I felony counts as two points) before “inexplicably” crossing them out by hand and reducing them to 10 points, according to the opinion. The point total reached 12 when the state assigned one point for each of his two misdemeanors.
Because Bunting stipulated the calculation of points and his status as a Level IV offender, the state claimed that he had no grounds for appealing the court’s alleged miscalculation, and the state had met its burden of proving Bunting’s prior record level by the preponderance of the evidence.
But while stipulation is one method of proving prior convictions, a defendant can’t stipulate to a question of law, the appeals court said, and a trial court must still make a legal determination by reviewing the proper classification of a prior offense to calculate the points assigned. Nor can a defendant stipulate to a prior record level calculation that includes felony convictions used for establishing his status as a habitual felon.
Bunting didn’t challenge the points charged for the two misdemeanors but argued that the record is unclear as to which five felonies were counted for purposes of determining his prior record level points. He contended—and the appeals court agreed—that state law prohibits a trial court from considering the three predicate felony convictions (six points) that establish his habitual felon status.
And though an out-of-state conviction may be used for determining a defendant’s prior record level, the state must prove that the conviction is substantially similar to a particular North Carolina felony. While Bunting could have properly stipulated to his conviction in another state and that offense is considered a felony there, a trial court must make a legal determination by reviewing the proper classification of an offense. In this case, the trial court must determine that Bunting’s out-of-state felony conviction for strangulation would translate to a felony offense in North Carolina.
The upshot of all of that was that the convictions eligible for consideration—two North Carolina felonies and two misdemeanors—would total just six points.
How the trial court reached its record level calculation was thus unclear, but the appeals court determined that something was erroneously applied and that the record level worksheet wasn’t sufficiently “definite and certain” to constitute a valid stipulation by Bunting.
“In the instant case, the trial court had to have either included one or more of Defendant’s out-of-state convictions or one or more of Defendant’s prior felonies used to establish his habitual felon status in order to reach 12 points in calculating Defendant’s prior conviction points,” Carpenter wrote.
Attorney General Joshua Stein and Assistant Attorney General Mary Maloney represented the state. Kimberly Hoppin of Chapel Hill represented Bunting. Hoppin did not immediately return a request for comment.
The 12-page decision is State v. Bunting (Lawyers Weekly No. 011-202-21).The full text of the opinion is available online at nclawyersweekly.com.
Follow Heath Hamacher on Twitter @NCLWHamacher