State v. Edgar

242 N.C.App. 624

777 S.E.2d 766

STATE of North Carolina

v.Sameer Ibn Muhammod EDGAR.

No. COA14–987.

Court of Appeals of North Carolina.

Aug. 18, 2015.

Roy Cooper, Attorney General, by James C. Holloway, Assistant Attorney General, for the State.

Anna S. Lucas, for defendant-appellant.

DAVIS, Judge.

Sameer Ibn Muhammod Edgar ("Defendant") appeals from the judgment entered on his plea of guilty to two counts of attempted first-degree murder, two counts of assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWIKISI"), and twenty-four counts of discharging a firearm into occupied property. On appeal, he contends that (1) the trial court erred in sentencing him as a prior record level II offender because its calculation of his prior record level was premised on a legally ineffective stipulation; and (2) he received ineffective assistance of counsel when his attorney at trial failed to present evidence demonstrating that his prior out-of-state conviction was substantially similar to a misdemeanor offense in North Carolina. After careful review, we dismiss Defendant's appeal.

Factual Background

On 5 September 2012, Defendant, his brother Kumani Regains ("Regains"), and an individual identified as Mr. Height ("Height") traveled from Kinston, North Carolina to Raleigh, North Carolina to see Defendant's and Regains' other brother, who had just been robbed by a man named Lamont Jones ("Jones") in a "drug deal gone bad." Defendant, Regains, and Height then drove back towards Kinston, stopping in Smithfield, North Carolina at approximately 8:00 p.m. They drove to an apartment complex on Towbridge Street in Smithfield, exited the vehicle, and approached apartment 38, the apartment where Jones lived. They knocked on the window of the apartment, calling out Jones' name, and a voice from inside the apartment replied that Jones "was not there."

Defendant, Regains, and an unnamed co-defendant¹ —each armed with a handgun—began firing shots into apartment 38. They then left the apartment complex and returned to Kinston. Several of the shots fired into the apartment struck two of the inhabitants, a 23–year–old woman and her 8–year–old son. The woman suffered a gunshot wound to her neck, and her son was rendered paralyzed from the waist down as a result of the gunshot wound he sustained to his spinal column.

On 3 December 2012, a grand jury returned bills of indictment charging Defendant with two counts of attempted first-degree murder, two counts of AWDWIKISI, and twenty-four counts of discharging a firearm into occupied property. Defendant pled guilty to all charges on 7 April 2014 pursuant to a plea agreement stating that he would "receive an active sentence of 180 to 228 months." The trial court entered judgment on his guilty plea, sentencing him as a prior record level II offender to 180 to 228 months imprisonment.

Analysis

I. Prior Record Level

Defendant's primary argument on appeal is that the trial court erred in calculating his prior record level because it based its calculation on an ineffective stipulation. Defendant's sole conviction prior to the present offenses was a conviction in Michigan for carrying a concealed weapon, which he contends is substantially similar to the North Carolina offense of carrying a concealed weapon (a Class 2 misdemeanor for first-time offenders). For this reason, Defendant argues that he should have been assigned zero prior record level points and, therefore, been classified as a prior record level I offender.

"The prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions that the court ... finds to have been proven in accordance with this section." N.C. Gen.Stat. § 15A–1340.14(a) (2013). Pursuant to N.C. Gen.Stat. § 15A–1340.14, Class A felony convictions are assigned ten points, Class B1 felony convictions are assigned nine points, Class B2, C, and D felony convictions are assigned six points, Class E, F, and G felony convictions are assigned four points, and Class H and I felony convictions are assigned two points. N.C. Gen.Stat. § 15A–1340.14(b)(1)–(4). Class A1—and some Class 1—misdemeanor convictions are assigned one point while all other misdemeanor convictions are assigned zero points. N.C. Gen.Stat. § 15A–1340.14(b)(5).

Where a defendant's prior conviction or convictions occurred outside of North Carolina, the following rules apply:

[A] conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points.

N.C. Gen.Stat. § 15A–1340.14(e).

N.C. Gen.Stat. § 15A–1340.14(f) permits various methods of proving the existence of a prior conviction, including the "[s]tipulation of the parties." The court then calculates the defendant's prior record level based on its determination of his prior convictions and addition of the applicable points stemming from these prior convictions. Prior record levels span from level I (which encompasses offenders with zero to one points) to level VI (which requires at least eighteen points). N.C. Gen.Stat. § 15A–1340.14(c).

Pursuant to N.C. Gen.Stat. § 15A–1444(a2), a defendant who pleads guilty to a criminal offense in superior court is entitled to an appeal as a matter of right as to the issue of whether the sentence imposed:

(1) Results from an incorrect finding of the defendant's prior record level under G.S. 15A–1340.14 or the defendant's prior conviction level under G.S. 15A–1340.21 ; (2) Contains a type of sentence disposition that is not authorized by G.S. 15A–1340.17 or G.S. 15A–1340.23 for the defendant's class of offense and prior record or conviction level; or

(3) Contains a term of imprisonment that is for a duration not authorized by G.S. 15A–1340.17 or G.S. 15A–1340.23 for the defendant's class of offense and prior record or conviction level.

N.C. Gen.Stat. § 15A–1444(a2)(1)–(3) (2013) (emphasis added).

Our Court has previously explained, however, that while "[a] plain reading of this subsection indicates that the issues set out may be raised on appeal by any defendant who has pled guilty to a felony or misdemeanor in superior court [,].... the right to appeal granted by this subsection is not without limitation." State v. Hamby, 129 N.C.App. 366, 369, 499 S.E.2d 195, 196 (1998). In Hamby, this Court specifically held that dismissal of the defendant's appeal was appropriate because she had stipulated during her plea negotiations to each of the matters addressed in N.C. Gen.Stat. § 15A–1444(a2), thereby mooting the issues she could have raised on appeal. Id. at 369–70, 499 S.E.2d at 197.

In her plea agreement, defendant admitted that her prior record level was II, that punishment for the offense could be either intermediate or active in the trial court's discretion and that the trial court was authorized to sentence her to a maximum of forty-four months in prison. By these admissions, defendant mooted the issues of whether her prior record level was correctly determined, whether the type of sentence disposition was authorized and whether the duration of her prison sentence was authorized. Therefore, defendant could not have raised any of the issues enumerated in N.C. Gen.Stat. § 15A–1444(a2) ... in her appeal. Because defendant could not have raised those issues, she had no right to appeal in this case.

Id.

In the context of prior record level determinations, however, we have recently clarified that when the defendant's stipulation involves a question of law, the stipulation does not moot the issue of whether the prior record level was properly calculated. See State v. Gardner, 225 N.C.App. 161, 166–67, 736 S.E.2d 826, 830 (2013) ("A defendant's prior convictions can be proved, inter alia, by stipulation of the parties. While such convictions often effectively constitute a prior record level, a defendant is not bound by a stipulation as to any conclusion of law that is required to be made for the purpose of calculating that level." (internal citation omitted)). This is so because "[s]tipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate." Id. at 167, 736 S.E.2d. at 831 (citation and quotation marks omitted).

In State v. Burgess, 216 N.C.App. 54, 715 S.E.2d 867 (2011), the defendant pled no contest pursuant to a plea agreement "that upon the defendant's pleas of no contest to 2nd degree kidnapping and crime against nature, the charges will be consolidated and defendant sentenced in [the] mitigated range of 36 months to 53 months (as a record level 4)." Id. at 54–55, 715 S.E.2d at 868 (quotation marks, brackets, and emphasis omitted). On appeal, he argued that the trial court erred in sentencing him as a prior record level IV offender based on several...