An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA09-698 NORTH CAROLINA COURT OF APPEALS Filed: 16 February 2010 STATE OF NORTH CAROLINA v. Henderson County No. 07 CRS 703887 JOHN CHARLES WEBER, Jr. Appeal by Defendant from judgment entered 23 January 2009 by Judge Robert C. Ervin in Superior Court, Henderson County. Heard in the Court of Appeals 1 December 2009. Attorney General Roy Cooper, by Assistant Attorney General Jennifer M. Jones, for the State William D. Auman, for Defendant-Appellant WYNN, Judge. For misdemeanor sentencing purposes, prior convictions can be proven by a copy of records maintained by the Division of Criminal 1 Information. Here, Defendant argues that the State's evidence was insufficient for the trial court to classify him as a record level III offender for sentencing purposes. Because the record shows that the trial court's sentencing decision was based on a Division of Criminal Information report, we affirm the trial court s judgment. 1 N.C. Gen. Stat. 15A-1340.21(c) (2007).
-2- On 2 November 2007, Defendant John Charles Weber, Jr. swerved his vehicle out of a roadway to avoid hitting a dog and instead struck a fence and gate. Defendant returned home without reporting the incident. After an investigation, Defendant was charged with several traffic offenses. Defendant pled guilty to a misdemeanor charge of hit and run/property damage and was tried on the charge of driving while impaired. Evidence supporting the factual basis for the guilty plea was derived from the trial on the driving while impaired charge, and the trial court deferred sentencing after conducting a proper plea colloquy. After acquittal on the driving while impaired charge, the State prayed judgment on the hit and run/property damage charge. Initially, the State contended that Defendant should be classified as a prior record level II offender for misdemeanor sentencing, and the trial court sentenced Defendant to a forty-five-day sentence suspended for eighteen months with an 2 active term of fourteen days in jail. Defense counsel challenged the fourteen-day active portion of the intermediate punishment, contending that the maximum active term allowable was eleven days. Following a brief recess, the State provided additional information to the trial court, contending instead that Defendant should be classified as a prior record level III offender for sentencing 2 The trial court s initial determination that Defendant was a prior record level II for sentencing was based on a copy of Defendant s driving record maintained by the Division of Motor Vehicles which showed a conviction for a single Class 2 misdemeanor.
-3- purposes. The trial court then modified its judgment to classify Defendant as a prior record level III offender for sentencing purposes, and sentenced him to ninety days in jail suspended for eighteen months with an active term of fourteen days in jail. Defendant argues that the trial court erred by classifying him as a prior record level III offender for misdemeanor sentencing purposes. We disagree. Under North Carolina law, a prior conviction may be proved in one of four ways: (1) stipulation by the parties; (2) court records of the prior conviction; (3) records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or the Administrative Office of the Courts; or (4) another method found to be reliable by the court. N.C. Gen. Stat. 15A-1340.21(c) (2009). 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. Id. To assess a misdemeanor sentencing classification of level III, the trial court must find that the offender has at least five prior convictions. N.C. Gen. Stat. 15A-1340.21(b) (2009). Defendant argues that the trial court based its level III sentencing determination on the State's prior record level worksheet. Clearly, this document, standing alone, would not be sufficient to classify Defendant as a level III offender. See, e.g., State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196, 205 (2002)( [T]he law requires more than the State's unverified
-4- assertion that a defendant was convicted of the prior crimes listed on a prior record level worksheet. ), rev'd on other grounds, 357 N.C. 43, 577 S.E.2d 619 (2003) (per curiam). However, a computerized printout of Defendant's criminal record is sufficient to satisfy the requirements of North Carolina General Statutes section 15A-1340.21(c). Compare State v. Rich, 130 N.C. App. 113, 116, 502 S.E.2d 49, 51 (1998) (where a Division of Criminal Information computerized printout containing defendant's criminal history was sufficient to prove his prior convictions), with State v. Miller, 159 N.C. App. 608, 615, 583 S.E.2d 620, 624 (2003) (where it was insufficient for the State to submit a prior record worksheet without the criminal information printouts on which the worksheet was based). Here, the record shows that the trial court s sentencing decision was based on a computerized criminal record rather than solely the State's prior record level worksheet. Indeed, the record includes a computer record of Defendant's Division of Criminal Information report. The report is designated as a Computerized Criminal History and states that it is a certified copy substantiated by fingerprints, as it appears in the SBI/DCI files. The printout includes identifying information such as Defendant's driver license number, Social Security Number, and FBI Number. Additionally, it documented each of Defendant s five prior
-5- convictions submitted by the State in its prior record level 3 worksheet. In sum, the record indicates that the trial court's sentencing decision was based on a Division of Criminal Information report listing Defendant's five prior convictions. Accordingly, we uphold the trial court s classification of Defendant as a prior record level III offender for sentencing. Affirmed. Judges CALABRIA and BEASLEY concur. Report per Rule 30(e). 3 Four convictions are designated as guilty, while one conviction is designated as a prayer for judgment continued. A prayer for judgment continued can be considered as a prior conviction for sentencing purposes. See State v. Canellas, 164 N.C. App. 775, 778, 596 S.E.2d 889, 891 (2004).