Prior Record Level: What a Defendant Can and Cannot Stipulate To

Under G.S. 15A-1340.14(f), a defendant’s prior convictions can be proved by stipulation of the parties. And they often are. But that doesn’t mean every aspect of a person’s prior record level can be proved by stipulation. Today’s post collects the rules for what a defendant can and cannot stipulate to.

A defendant CAN stipulate to the existence of a prior conviction. G.S. 15A-1340.14(f). That is true whether the conviction occurred in North Carolina or elsewhere.

If the conviction is from a jurisdiction outside of North Carolina, the defendant CAN stipulate to whether it is a felony or a misdemeanor in the other jurisdiction. State v. Edgar, 242 N.C. App. 624 (2015); State v. Bohler, 198 N.C. App. 631 (2009). If the parties are content with the stipulated-to prior conviction counting for points according to North Carolina’s default rule for out-of-state offenses (felonies count as Class I felonies (2 points) and misdemeanors count as Class 3 misdemeanors (0 points)), there is no problem with the stipulation. State v. Hinton, 196 N.C. App. 750 (2009).

If either of the parties wishes to establish that an out-of-state prior conviction is substantially similar to a North Carolina offense, and that it should thus count for points like its North Carolina counterpart, that is where we start to run into problems. The parties CANNOT stipulate to substantial similarity; it is a question of law, not fact. State v. Palmateer, 179 N.C. App. 579 (2005). The trial judge must evaluate substantial similarity based on a comparison of the elements of the out-of-state offense and the purportedly similar North Carolina crime. There is a check-box on the front of the Prior Record Level Worksheet for the judge to memorialize his or her determination of substantial similarity.

A defendant CANNOT stipulate to the prior record bonus point under G.S. 15A-1340.14(b)(6) for all the elements of the present offense being included in a prior offense. That, like substantial similarity of an out-of-state conviction, is a question of law to which a person may not validly stipulate. See, e.g., State v. Eury, 245 N.C. App. 328 (2016); State v. Prush, 185 N.C. App. 472 (2007). There is a check-box on the front of the worksheet for the court to make its finding that all the elements of the present offense are included in a prior offense.

A defendant CAN, however, admit to the other prior record bonus point, G.S. 15A-1340.14(b)(7), for committing the present offense while under supervision, incarcerated, or on escape. State v. Miles, 221 N.C. App. 211 (2012).

A defendant CAN stipulate to which version of a “split offense” he or she committed. If a defendant has a prior conviction for an offense that the General Assembly has, since the defendant was convicted of it, split into multiple offenses with different offense classifications, the defendant can stipulate to which version of it he or she committed (and, accordingly, the points assigned to it). That’s the rule from State v. Arrington, where the supreme court concluded that the defendant validly stipulated to a prior second-degree murder designated as a Class B1 offense, even though it was split into Class B1 and B2 versions after he was convicted of it. 371 N.C. 518, 524 (2018) (“Thus, like a stipulation to any other conviction, when a defendant stipulates to the existence of a prior second-degree murder offense in tandem with its classification as either a B1 or B2 offense, he is stipulating that the facts underlying his conviction justify that classification.”). The court of appeals applied the Arrington rule to prior convictions for possession of drug paraphernalia—split into Class 1 (non-marijuana) and Class 3 (marijuana) versions in 2014—concluding that a defendant can validly stipulate to which version his or her prior conviction would be under today’s law. State v. Green, ___ N.C. App. ___, 831 S.E.2d 611 (2019).

The appellate courts have thus far limited the Arrington rule to split offenses. The case does not overrule the no-stipulations-to-substantial-similarity rule for out-of-state offenses. See State v. Glover, ___ N.C. App. ___, ___ S.E.2d ___ (N.C. Ct. App., Sept. 3, 2019) (concluding that six of the defendant’s prior out-of-state convictions were miscategorized pursuant to a faulty stipulation and remanding for resentencing). And it does not apply to lock a defendant into a stipulation to an offense class for a prior conviction that is clearly wrong. For example, in Green, the defendant stipulated to a prior conviction for carrying a concealed weapon that was classified as a Class 1 misdemeanor. Carrying a concealed weapon is either a Class 2 misdemeanor for first offenses or a Class H felony for second or subsequent offenses; it is never Class 1 under G.S. 14-269, and the court declined to read Arrington as requiring a reviewing court to scour the General Statutes for a version of the offense that might match up with the stipulated-to classification. Likewise in State v. Ellis, ___ N.C. App. ___, 832 S.E.2d 750 (2019), where the court of appeals relieved the defendant of his improper stipulation to a prior conviction for “expired operators’ license” as a Class 2 misdemeanor, when it was, at the time of the present offense being sentenced, an infraction.



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