State Of North Carolina v. Webb, COA09-1433
| Decision Date | 21 September 2010 |
| Docket Number | No. 07 CRS 50387,NO. COA09-1433,08 CRS 710,COA09-1433,07 CRS 50387 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. CORNELIUS WEBB |
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Appeal by defendant from judgment entered 8 April 2009 by Judge W. Allen Cobb, Jr., in Sampson County Superior Court. Heard in the Court of Appeals 23 March 2009.
Defendant Cornelius Webb appeals from a judgment entered by the trial court sentencing him to a minimum term of 100 months and a maximum term of 129 months in the custody of the North Carolina Department of Correction based on his conviction for possession of a firearm by a felon. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant is not entitled to any appellate relief.
Shortly before midnight on 19 January 2007, Defendant, accompanied by Maurice Blanks and another man, arrived at a nightclub in Roseboro, North Carolina, in a Jeep Cherokee. Sylyndrell Blanks; her aunt, Ernestine Cash; and Defendant's brother, Venor Webb, arrived at the club in a separate vehicle simultaneously with Defendant. While at the club, Ms. Blanks observed Defendant involved in an apparent argument with a man whom she described as being approximately six feet to six feet, four inches tall, dark-skinned, and having long "dreads."
Around 1:45 a.m., the club closed. As Ms. Blanks was leaving, she noticed the same man that had been arguing with Defendant lift up his shirt as if he were reaching for a gun, prompting her to hurry to her vehicle. As she went to her vehicle, Ms. Blanks saw Defendant standing between some trees and a van. After reaching her vehicle, Ms. Blanks heard fifteen to twenty gunshots, at which point she picked up Ms. Cash and Mr. Webb and went home.
Linda Weller lives in a mobile home located on the same property as the nightclub, which she owns and operates. After the nightclub closed, Ms. Weller went inside her residence. Upon entering her mobile home, Ms. Weller heard multiple gunshots. As she opened her kitchen door, Ms. Weller witnessed two people shooting. The first of the two participants in the shooting, whom Ms. Weller identified as Defendant, was standing at the end of her carport between some trees and a van, firing a handgun. The other individual involved in the exchange of gunfire was standing by a dog pen. After Ms. Weller witnessed these two individuals shootingat each other, her son informed her that someone had been shot and that he had called 9-1-1. The individual who had been shot, Gerard Culbreth, died as a result of a gunshot wound to the left side of his head.
On 30 January 2007, a warrant for arrest was issued charging Defendant with murder. On 2 5 February 2 0 08, the Sampson County grand jury returned bills of indictment charging Defendant with possession of a firearm by convicted felon, murder, and having attained the status of an habitual felon based on three separate Florida convictions for delivery of cocaine on 22 August 2000, 3 March 1997, and 28 June 2006. On 16 April 2008, the prosecutor filed notice that the State intended to attempt to establish the existence of certain aggravating factors and the applicability of certain prior record points, such as that Defendant "was armed with a deadly weapon at the time of the crime," that Defendant "used a deadly weapon at the time of the crime," that Defendant "committed the offense while on pretrial release on another charge," and that "the offense was committed while" Defendant "was on supervised or unsupervised probation, parole, or post-release supervision."
The cases against Defendant came on for trial before the trial court and a jury at the 6 April 2009 session of the Sampson County Superior Court. On 6 April 2009, Defendant stipulated that "prior to January 19, 2 0 07 and January 20, 2 0 07 the defendant had previously been convicted of the felony of delivery of cocaine;" that Defendant "was convicted of this felony on March 3, 1997 in. .. Orange County[,] Florida;" that "this felony was committed on October 8, 1996;" and that Defendant "waive[d] any further requirement of the State to prove that on or about January 19, 2007 and January 20, 2 0 07... he had been convicted of the above offense of delivery of cocaine" and that "this element of the offense of possession of a firearm by a felon... need not be decided by the jury in this matter."
On 8 April 2009, the jury returned verdicts acquitting Defendant of murder and convicting him of possession of a firearm by a convicted felon. After the return of the jury's verdict, Defendant entered a plea of guilty to having attained the status of an habitual felon conditioned on an agreement that the State would "not proceed on the aggravating factors alleged" and that Defendant would be sentenced to a minimum of 100 months and a maximum of 129 months in the custody of the North Carolina Department of Correction.
At the sentencing hearing, the trial court found that Defendant had three prior record points based on an alleged Florida conviction for battery on a law enforcement officer and a finding that the offense for which Defendant had been convicted had been committed "while [Defendant was on] supervised or unsupervised probation, parole, or post-release supervision." As a result, the trial court concluded that Defendant should be sentenced as a Level II offender and entered a judgment requiring Defendant to serve a minimum term of 100 months and a maximum term of 129 months in thecustody of the Department of Correction. Defendant noted an appeal to this Court from the trial court's judgment.
In reviewing alleged errors in the computation of a defendant's prior record level, this Court must consider "'whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.'" State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-1444(a1)(Cum. Supp. 1996)). At sentencing, "[t]he 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-1340.14(f) (2009). The establishment of a defendant's prior record level is a conclusion of law that is subject to de novo review. State v. Bohler, _ N.C. App. _, _, 681 S.E.2d 801, 804 (2009) (). "This Court applies a harmless error analysis to improper calculations of prior record level points." State v. Lindsay, 185 N.C. App. 314, 315, 647 S.E.2d 473, 474 (2007).
Defendant's sole contention on appeal is that the trial court erroneously found that he had three prior record points and should be sentenced as a Level II offender. More specifically, Defendant argues that (1) the trial court impermissibly assigned him two prior record points predicated on his alleged Florida convictionfor battery on a law enforcement officer and that (2) the trial court erroneously assessed an additional prior record point against Defendant on the grounds that "the offense was committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision." N.C. Gen. Stat. § 15A-1340.14(b)(7). We conclude, in light of our review of the record and the applicable law, that Defendant's arguments do not entitle him to any relief on appeal.
A. Florida Battery on a Law Enforcement Officer Conviction
First, Defendant challenges the trial court's decision to assess two prior record points stemming from an alleged Florida conviction for battery on a law enforcement officer. In essence, Defendant contends that, given the State's failure to present adequate evidence to support a finding of the existence of this conviction and the fact that Defendant had not stipulated to the existence of this conviction or admitted its existence during the entry of his negotiated plea, the State failed to properly establish that he had been convicted of battery on a law enforcement officer in Florida. We conclude, contrary to Defendant's argument, that he did, in fact, stipulate to this conviction.
Pursuant to N.C. Gen. Stat. § 15A-1340.14(f), prior convictions can be proved by:
"The State bears the burden of proving that a prior conviction exists and that the defendant is the same person as the offender in the prior conviction." State v. Wade, 181 N.C. App. 295, 298, 639 S.E.2d 82, 85 (2007)(citing State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002)). Neither a prior record worksheet nor a prosecutorial statement provide sufficient support for the assignment of prior record points. State v. Riley, 159 N.C. App. 546, 557, 583 S.E.2d 379, 387 (2003).
A stipulation to the existence of a prior conviction can result from a colloquy between the defendant's trial counsel and the trial court. Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 743. Although no particular set of words need be used at the time that the parties...
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