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Criminal Practice — Evidence – Jail Incident Report – Recorded Recollection – IAC Claim – Sentencing – Prior Record Level Worksheet

Even though a former jailer could not remember encountering defendant after he was arrested, the jailer recalled creating a jail incident report about the methamphetamine he found on defendant’s person. The state laid an adequate foundation for admission of the report based on the jailer’s usual procedure for preparing such reports. Although a recorded recollection – like the jail incident report here – may not be received as an exhibit, since the entire report could have been read to the jury, defendant has failed to show prejudice in the publication of the report to the jury.

We find no error in defendant’s convictions for possession of methamphetamine and attaining habitual felon status. However, we remand for resentencing.

Defendant argues that his trial counsel violated State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), during closing arguments during the habitual-felon phase of his trial by admitting his guilt to prior felonies. Under State v. Womack, 211 N.C. App. 309, 712 S.E.2d 193 (2011), Harbison has no application at a proceeding convened for the purpose of determining whether a defendant’s sentence should be enhanced because of his prior criminal conduct. In any event, counsel did not admit guilt; instead, she said she trusted the jury to exercise its judgment and to examine the state’s exhibits.

Finally, despite a diligent effort, defendant was unable to obtain a copy of his prior record level (PRL) worksheet. Without the PRL worksheet, we are unable to determine (1) whether the trial court impermissibly assigned points to multiple convictions from a single court week, (2) whether all the elements of the present offense are included in any prior offense for which the offender was convicted and (3) whether the trial court impermissibly calculated defendant’s prior record level using any of the convictions used to establish habitual felon status.

No error; remanded for resentencing.

State v. Turner (Lawyers Weekly No. 012-163-22, 24 pp.) (Allegra Collins, J.) Appealed from Cherokee County Superior Court (William Coward, J.) Charles Whitehead for the state; Anne Gomez for defendant. 2022-NCCOA-254

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