IN THE COURT OF APPEALS OF NORTH CAROLINA. No. COA Filed: 5 July 2016

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA Filed: 5 July 2016 Onslow County, Nos. 13 CRS STATE OF NORTH CAROLINA v. DEMETRIUS TERRILL DOVE Appeal by defendant from judgment entered 22 July 2015 by Judge Ebern T. Watson, III in Onslow County Superior Court. Heard in the Court of Appeals 7 June Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State. Kimberly P. Hoppin for defendant-appellant. TYSON, Judge. Demetrius Terrill Dove ( Defendant ) appeals from judgment after a jury convicted him of one count of possession with intent to manufacture, sell, or deliver marijuana and one count of selling marijuana. Defendant also pled guilty to having attained habitual felon status. Defendant does not contest the legality of his convictions, but challenges the sentence imposed. We remand for resentencing. I. Factual Background

2 In November 2012, Ryan Smart ( Smart ) was arrested for possession of marijuana. In exchange for dismissal of his charge, Smart subsequently began working with Jacksonville Police Department Detective James Keller ( Detective Keller ) as a paid Confidential Reliable Informant ( CRI ). His pending simple possession of marijuana charge was dismissed. Defendant and Smart met each other while both were working for a company performing electrical work. Smart testified he ended up purchasing a little bit of weed from [Defendant] a few times for personal use. Smart eventually informed Detective Keller that Defendant had sold him marijuana. Apprised of this information, Detective Keller and Smart made arrangements for Smart to set up a controlled purchase of marijuana from Defendant. On 27 November 2012, Smart met Detective Keller at the Jacksonville Police Department. Detective Keller searched Smart, fitted him with an audio-visual recording device, and provided him with $55.00 in cash to make the controlled purchase. Smart called Defendant and requested a meeting at the parking lot of a Wal- Mart store, off of Yopp Road. Smart walked to the entrance of the Wal-Mart store and called Defendant on his cell phone. Detective Keller remained in his vehicle to observe the transaction. Defendant arrived in a white Chevrolet Malibu vehicle

3 Smart entered the backseat of the vehicle, which Defendant was driving. A woman was seated in the front passenger seat. Smart testified Defendant put the weed on the center console, I grabbed it, put the money up there, as we was driving around Wal-Mart, and then he dropped me off. And that was it. Smart testified he gave Defendant the $55.00 in cash, and kept the marijuana on his person until he got back inside Detective Keller s vehicle. At that point, he relinquished the marijuana to Detective Keller. Detective Keller and Smart returned to the Jacksonville Police Department, where Detective Keller searched Smart once more. Smart testified he was paid approximately $ by the police department for his efforts in setting up and partaking in the controlled purchase from Defendant. The substance Defendant sold Smart was analyzed by the State Crime Lab, which confirmed that the substance consisted of 14 grams of marijuana. On 16 June 2015, a grand jury indicted Defendant by superseding ancillary indictments for: (1) possession of marijuana with intent to manufacture, sell, or deliver; (2) manufacturing marijuana; (3) delivering marijuana; (4) selling marijuana; and, (5) having attained the status of an habitual felon. The State did not proceed to trial on the charges of manufacturing marijuana or delivering marijuana. Defendant s case was tried on 20 July The jury returned a verdict finding Defendant guilty of one count of possession of marijuana with intent to manufacture, - 3 -

4 sell, or deliver and one count of selling marijuana. Defendant pled guilty to having attained habitual felon status. Defendant was sentenced at a prior record level of VI to a term of 80 to 108 months imprisonment. Defendant gave notice of appeal in open court. II. Issues Defendant does not challenge the validity of his convictions by the jury. Defendant argues the trial court erred by (1) improperly calculating Defendant s prior record level points; and, (2) ordering Defendant to pay $1, in restitution. III. Defendant s Prior Record Level Defendant asserts the trial court miscalculated his prior record level points. Defendant argues the State improperly used two of his prior convictions to establish both his status as an habitual felon and to calculate his prior record level, and included dismissed charges in the calculation of his prior record level. Defendant also asserts two of his prior convictions, which were included in the calculation, should not have been considered. We agree. A. Standard of Review The trial court s determination of a defendant s prior record level is a conclusion of law, subject to de novo review. State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007) (citation omitted). Our Supreme Court has held that an error at sentencing is not considered an error at trial for the purpose of N.C. Rule - 4 -

5 10(b)(1) of the North Carolina Rules of Appellate Procedure. State v. Hargett, 157 N.C. App. 90, 92, 577 S.E.2d 703, 705 (2003) (citing State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)), abrogation recognized by State v. Williams, 215 N.C. App. 412, 425, 715 S.E.2d 553, 561 (2011). Defendant s argument pertaining to the alleged miscalculation of his prior record level is automatically preserved for de novo review, even in the absence of an objection at trial, because it involves a sentencing error. B. Analysis A trial court must determine the prior record level for the offender pursuant to [N.C. Gen. Stat. ] 15A before imposing a sentence. N.C. Gen. Stat. 15A (b) (2015). The minimum sentence imposed must be scheduled within the range specified for the class of offense and prior record level[.] Id. The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction. N.C. Gen. Stat. 15A (f) (2015). by: Pursuant to N.C. Gen. Stat. 15A (f), prior convictions may be proved (1) Stipulation of the parties. (2) An original or copy of the court record of the prior conviction. (3) A copy of records maintained by the Department of Public Safety, the Division of Motor Vehicles, or of the Administrative Office of the Courts

6 (4) Any other method found by the court to be reliable. Id. 1. Violation of N.C. Gen. Stat Defendant argues two of his prior convictions, used as the predicate felony convictions to establish his habitual felon status, were also improperly used to calculate his prior record level. We agree. N.C. Gen. Stat , which governs the sentencing of habitual felons, mandates: In determining the prior record level [of an habitual felon], convictions used to establish a person s status as an habitual felon shall not be used. N.C. Gen. Stat (2015). Here, the superseding ancillary indictment set out three predicate felony convictions to establish the State s assertion that Defendant had attained habitual felon status. Two of the felonies used to establish Defendant as an habitual felon, felony trafficking in cocaine by possession and felonious breaking and entering, were also included in Defendant s prior record level worksheet and used in calculating his prior record level. This double use of Defendant s convictions is a clear violation of N.C. Gen. Stat Four points were incorrectly assigned for Defendant s trafficking in cocaine by possession conviction (a Class G felony), and two points were incorrectly assigned for Defendant s felonious breaking and entering conviction (a Class H felony). See - 6 -

7 N.C. Gen. Stat. 15A (b)(3), (4) ( For each prior felony Class E, F, or G conviction, 4 points.... For each prior felony Class H or I conviction, 2 points. ). 2. Violation of N.C. Gen. Stat. 15A (d) Defendant also contends the trial court erred by including, on two occasions, points for two convictions which occurred on the same day. We agree. N.C. Gen. Stat. 15A (d) states: For purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used. N.C. Gen. Stat. 15A (d) (2015). Here, Defendant s prior record level worksheet listed two convictions, each of which occurred in Craven County Superior Court on 18 August 1997 a conviction for a Class G felony possession of a firearm by a felon, and a conviction for a Class 1 misdemeanor injury to personal property. Pursuant to N.C. Gen. Stat. 15A (d), points should only have been assigned for the higher-point total Class G conviction. The trial court miscalculated Defendant s prior record level by including both convictions, which occurred in a single superior court on the same date. Defendant s prior record level worksheet also listed two convictions, each of which occurred in Onslow County Superior Court on 8 January 2007 a conviction for a Class I possession of cocaine and a conviction for a Class 1 misdemeanor possession of stolen goods. Again, the trial court erroneously included both of these - 7 -

8 convictions in its calculation of Defendant s prior record level, in derogation of N.C. Gen. Stat. 15A (d). Pursuant to N.C. Gen. Stat. 15A (d), points should only have been assigned for the higher-point total Class I conviction. 3. Stipulation to Defendant s Prior Record Level The State asserts Defendant s argument is without merit because Defendant s prior record level worksheet was stipulated to, in accordance with N.C. Gen. Stat. 15A (f). See N.C. Gen. Stat. 15A (f)(1) (setting forth four methods by which prior convictions may be proven, including stipulation of the parties ); State v. Massey, 195 N.C. App. 423, 429, 672 S.E.2d 696, 699 (2009) (holding stipulation of information contained in prior record level worksheet is sufficient to satisfy the State s evidentiary burden of proof of this conviction ). Defendant s prior record level worksheet set forth that Defendant had accumulated twenty-four total points, which equaled a prior record level of VI. Defendant s trial counsel and the prosecutor signed Defendant s prior record level worksheet, under the section entitled III. Stipulation. This section states: The prosecutor and defense counsel... stipulate to the information set out in Sections I and V of this form, and agree with the defendant s prior record level or prior conviction level as set out in Section II based on the information herein. The State contends Defendant cannot challenge the inclusion in his prior record level calculation some of the prior convictions listed on his worksheet on appeal - 8 -

9 because his trial counsel stipulated in writing to his prior record level points, prior convictions, and prior record level calculation. This Court has held a stipulation by a defendant is sufficient to prove the existence of the defendant s prior convictions to determine the defendant s prior record level for sentencing purposes. Fraley, 182 N.C. App. at 691, 643 S.E.2d at 44. However, the trial court s assignment of an incorrect record level is an improper conclusion of law, which we review de novo. Id. Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate. State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (citation omitted), disc. review denied and appeal dismissed, 297 N.C. 179, 254 S.E.2d 38 (1979). Defendant s stipulation of his prior record level does not preclude our de novo appellate review of the trial court s calculation of [D]efendant s prior record level[.] Massey, 195 N.C. App. at 429, 672 S.E.2d at 699. As discussed supra, the trial court s assignment of a prior record level of VI to Defendant was an improper conclusion of law. We remand to the trial court for resentencing in order for Defendant s prior record level to be properly calculated. 4. Improper Assignment of Points for Dismissed Charges Defendant also argues the trial court improperly assessed points to calculate his prior record level for an offense of which Defendant was not convicted and which was dismissed. Defendant asserts this constituted a violation of N.C. Gen. Stat

10 15A , the Due Process Clause of the Constitution of the United States, and the Law of the Land Clause of the Constitution of North Carolina. In his brief, Defendant acknowledges this argument is based upon information outside the record. Defendant addresses this argument in a motion for appropriate relief ( MAR ), which was contemporaneously filed with his appeal to this Court. When a motion for appropriate relief is made in the appellate division, the appellate court must decide whether the motion may be determined on the basis of the materials before it, [and] whether it is necessary to remand the case to the trial division for taking evidence or conducting other proceedings.... N.C. Gen. Stat. 15A-1418(b) (2015). Although N.C. Gen. Stat. 15A-1418 authorizes this Court to determine the motion in conjunction with the appeal[,] we conclude the materials in the record before us are insufficient to enable us to determine this portion of Defendant s claim on direct appeal or by the MAR. Defendant has attached an uncertified written dismissal of the charges against him in file number 94 CRS 1732 as an appendix to his brief and his MAR. This Court is able to take judicial notice of prior court records. State v. Thompson, 349 N.C. 483, 497, 508 S.E.2d 277, 286 (1998) (stating that [t]his Court may take judicial notice of the public records of other courts within the state judicial system[] (citation omitted)). Nevertheless, since we are remanding for a new sentencing hearing, we also remand Defendant s MAR to the trial court to take additional evidence and

11 determine the motion. See State v. Thornton, 158 N.C. App. 645, 654, 582 S.E.2d 308, 313 (2003) (remanding motion for appropriate relief to trial court where materials before appellate court were insufficient to justify a ruling). IV. Restitution Defendant argues the trial court erred by ordering him to pay $1, in restitution. Defendant contends this amount was not supported by the evidence. We agree. A. Standard of Review This Court reviews de novo whether the trial court s award of restitution is supported by evidence adduced at trial or at sentencing. State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (citation omitted). Even where a defendant does not specifically object to the trial court s entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. 15A- 1446(d)(18). Id. at 233, 605 S.E.2d at 233 (citation omitted). B. Analysis It is well-settled that the amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing. State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995) (citation omitted). Our Supreme Court has explained: Nonetheless, the quantum of evidence needed to support a restitution award is not high. When there is some evidence

12 as to the appropriate amount of restitution, the recommendation will not be overruled on appeal. In applying this standard our appellate courts have consistently engaged in fact-specific inquiries rather than applying a bright-line rule. Prior case law reveals two general approaches: (1) when there is no evidence, documentary or testimonial, to support the award, the award will be vacated, and (2) when there is specific testimony or documentation to support the award, the award will not be disturbed. State v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011) (emphasis in original) (citations and internal quotation marks omitted). This Court has repeatedly held a restitution worksheet, unsupported by testimony or documentation, is insufficient to support an order of restitution. State v. Mauer, 202 N.C. App. 546, 552, 688 S.E.2d 774, 778 (2010); State v. Swann, 197 N.C. App. 221, 225, 676 S.E.2d 654, (2009). Unsworn statements made by the prosecutor are also insufficient to support the amount of restitution ordered. Wilson, 340 N.C. at 727, 459 S.E.2d at 196 (citation omitted). During sentencing, the trial court queried the State about court costs and asked: Now, what are your fees in this case, as far as labs and other things? The following colloquy ensued: MR. SWEET: Thank you. Thank you. We have a $600 lab fee for the North Carolina SBI lab -- crime lab, and $205 restitution for the money used for the informant in this case directly. So a total of $805, we d be asking as part of the judgment

13 THE COURT: What about any other moneys that were expended on prosecution, as far as witness fees, anything of that nature?.... MR SWEET: Judge, we had about a nine-hundred-dollar fee to bring the CRI in, if the Court would be inclined to enter that as part of the judgment THE COURT:... There will be one cost of court in the case. There will be no fine. But there will be restitution in the amount of the lab fee -- $600? MR. SWEET: Yes, sir. THE COURT: There s also $205 in special funds exacted from the Jacksonville Police Department -- MR. SWEET: Yes, sir. THE COURT: -- for use of purchase of narcotics or other contraband. There s also a fee of $900 that was expended by the State in an effort to prosecute this case.... The trial court assessed a $ crime lab fee, payable to the North Carolina State Crime Laboratory, which is statutorily mandated under N.C. Gen. Stat. 7A- 304(a)(7). See N.C. Gen. Stat. 7A-304(a)(7) (2015) ( For services of the North Carolina State Crime Laboratory facilities, the district or superior court judge shall, upon conviction, order payment of the sum of six hundred dollars ($600.00) to be remitted to the Department of Justice for support of the Laboratory. ). Defendant

14 does not contest the assessment of the $ lab fee on appeal and acknowledges this amount constitutes part of his statutory court costs. Id. Defendant argues the trial court s award of $1, in restitution, comprised of $ for the purchase of narcotics and $ for the State s expenditures to bring Smart to Defendant s trial, is wholly unsupported by the State s assertions and the evidence presented. Smart testified he was paid [a]pproximately two hundred dollars for working with detectives to set up and participate in the controlled purchase from Defendant. While the evidence to support this amount of restitution is scant, the quantum of evidence needed to support a restitution award is not high. Moore, 365 N.C. at 285, 715 S.E.2d at 849. Smart s testimony is not too vague to support [the] award of restitution in the amount of $ Id. at 286, 715 S.E.2d at 849; see State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986) (affirming trial court s decision to combine the victim s specific testimony about a $10,364 hospital bill with his nonspecific testimony about a doctor s bill of around $8000 to support an award of $18,364.00). We hold the State presented sufficient evidence to support that portion of the trial court s restitution order, which required Defendant to pay $ in special funds exacted from the Jacksonville Police Department... for use of purchase of narcotics or other contraband. See Hunt, 80 N.C. App. at 195, 341 S.E.at 354 (holding

15 when there is some evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal ). The State also alleged $ was expended to bring the CRI in[.] Our review of the record and transcript reveals no evidence to support this amount of restitution, other than the prosecutor s unsworn statements to the trial court during Defendant s sentencing. The prosecutor s unsworn statements, without more, are insufficient to support the award of restitution ordered in the amount of $ Wilson, 340 N.C. at 727, 459 S.E.2d at 196 (citation omitted). That portion of the restitution order which required Defendant to pay $ as restitution is not supported by the evidence adduced at trial or sentencing. We reverse this portion of the restitution order, and upon remand to the trial court for resentencing, the trial court shall amend the restitution order accordingly. V. Conclusion Defendant s prior record level was miscalculated by the inclusion of convictions for which points were not warranted. The uncertified materials before us are insufficient to make a determination on Defendant s motion for appropriate relief. The State presented sufficient evidence to support an award of restitution in the amount of $ The State did not present sufficient evidence to support an award of restitution in the amount of $

16 We remand for resentencing. Defendant s motion for appropriate relief is also remanded to the trial court for the taking of additional evidence and a determination of the motion. We reverse the trial court s restitution order in part and remand with instructions to amend the restitution order consistent with this opinion. REMANDED FOR RESENTENCING; MOTION FOR APPROPRIATE RELIEF REMANDED; RESTITUTION ORDER AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Judges BRYANT and INMAN concur. Report per Rule 30(e)