State v. LaFountain, No. COA08-924 (N.C. App. 6/16/2009)
| Decision Date | 16 June 2009 |
| Docket Number | No. COA08-924,COA08-924 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. VICTOR JOSEPH LAFOUNTAIN, Defendant. |
Defendant Victor Joseph LaFountain was sentenced to a term of 252 to 312 months imprisonment for second degree murder and a consecutive term of 108 to 139 months imprisonment for armed robbery. In determining defendant's prior record level, the trial court considered four convictions in Georgia. On appeal, defendant contends that the State presented insufficient evidence that defendant's four prior Georgia convictions were substantially similar to specific North Carolina crimes. We agree that the State failed to show that defendant's prior Georgia convictions were substantially similar to North Carolina offenses. We, therefore, remand for resentencing.
Defendant was indicted on 15 September 1997 for first degree murder and was charged in a bill of information on 16 February 1998 with robbery with a dangerous weapon. On 16 February 1998, defendant waived indictment on the robbery charge and pled guilty to second degree murder and robbery with a dangerous weapon in Clay County Superior Court. At his sentencing hearing, defendant stipulated that there was a factual basis for both guilty pleas and consented to a summary of the facts by the prosecutor. The prosecutor's summary included the following facts.
On 20 August 1997, defendant and his wife were driving through Clay County in a stolen car when they began to have car trouble. They pulled into a car wash where the victim, 70-year-old Guy Pinner, was alone washing his van. Defendant approached Mr. Pinner and struck him twice in the head with "a large drinking glass with a hard bottom on it." He dragged Mr. Pinner behind some underbrush and left him there, taking his van. Defendant and his wife then drove the van to Kentucky, where they were stopped for a traffic violation, and the van was discovered to be stolen. Mr. Pinner died as a result of his injuries.
After summarizing these facts, the State provided the trial court with a Prior Record Level Worksheet listing four prior criminal convictions that defendant received in Georgia: (1) a "Dangerous Drugs Offense" conviction in 1981 classified as a class I felony; (2) a "Theft by Taking" offense in 1982 classified as a class 1 misdemeanor; (3) "Armed Robbery" in 1982 classified as a Class D felony; and (4) "Burglary" in 1985 classified as a class H felony. The State contended that defendant had 11 prior record level points for purposes of the murder charge and 12 points for the armed robbery charge (adding a point because all the elements of the armed robbery offense were included in a prior offense), resulting in a prior record level IV. Defense counsel contended that defendant had only eight points and should be sentenced at a prior record level III. The trial court agreed with defendant and found him to be a prior record level III.
The State then asked the court to find various aggravating factors, including the factor that the victim was very old, while defendant asked the court to find as mitigating factors that defendant accepted responsibility for his conduct and that he had a "very troubled childhood." The trial court found the aggravating factor that the victim was very old and both mitigating factors; it further found that the aggravating factor outweighed the mitigating factors; and it sentenced defendant to an aggravated-range sentence of 252 to 312 months imprisonment for second degree murder and a consecutive aggravated-range sentence of 108 to 139 months imprisonment for robbery with a dangerous weapon.
On 13 June 2003, this Court granted defendant's petition for writ of certiorari to allow defendant to appeal his sentence. On 14 March 2008, the Appellate Entries were signed, and the Office of the Appellate Defender was assigned to perfect the appeal.1
Defendant first contends that the State failed to meet its burden with regard to the proper classification of his prior Georgia convictions for purposes of calculating his prior record level. N.C. Gen. Stat. § 15A-1340.14(e) (2007) provides with respect to convictions from other states:
Classification of Prior Convictions From Other Jurisdictions. — Except as otherwise provided in this subsection, 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.
(Emphasis added.)
Defendant does not dispute the existence of the four prior Georgia convictions listed on the State's Prior Record Level Worksheet. Rather, defendant contends the State failed to meet its burden of proving the proper classification of the offenses or that any felony convictions were substantially similar to felonies higher than Class I felonies or that the misdemeanor convictions were substantially similar to Class A1 or 1 misdemeanors.
The State contends that defendant is precluded from raising this argument because he stipulated that his Georgia convictions should result in defendant's being sentenced as a prior record level III, and he was sentenced at that level. In support of this argument, the State relies exclusively on State v. Lee, ___ N.C. App. ___, 666 S.E.2d 867 (2008), in which this Court initially held that a defendant can stipulate to whether his prior convictions are substantially similar to North Carolina offenses. Subsequent to the filing of the State's brief, however, that opinion was withdrawn.
In the Court's new decision, State v. Lee, ___ N.C. App. ___, ___, 668 S.E.2d 393, 395 (2008), this Court held, in accordance with prior decisions, that a stipulation to a prior record level does not satisfy the State's burden to show substantial similarity, because the question whether an out-of-state crime is substantially similar to a North Carolina crime is a question of law that must be resolved by the trial court. See also State v. Palmateer, 179 N.C. App. 579, 582, 634 S.E.2d 592, 594 (2006) ( ; State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600, 604 (2006) ().
Even if defendant's prior record level was improperly calculated, resentencing would not be necessary if the error was harmless. See State v. Lindsay, 185 N.C. App. 314, 315, 647 S.E.2d 473, 474 (2007) (). We cannot, however, determine from the record the basis on which the trial court reached its determination that defendant had eight points and was a prior record level III. Since the trial court's reasoning is not apparent to us, and the State does not dispute defendant's argument that the error was prejudicial, we remand for a new sentencing hearing in accordance with Hanton, Palmateer, and Lee. See also State v. Cao, 175 N.C. App. 434, 435, 626 S.E.2d 301, 302 (), appeal dismissed and disc. review denied, 360 N.C. 538, 634 S.E.2d 537 (2006). The concurring opinion's suggestion that we conduct this analysis in the first instance is simply not consistent with this Court's controlling precedent — especially since, as discussed below, this case must be remanded for resentencing in any event. On remand, the trial court must recalculate defendant's prior record level, making the determinations required by N.C. Gen. Stat. § 15A-1340.14(e). The trial court must first determine whether the crimes of which defendant was convicted were, under Georgia law, felonies or misdemeanors. The court then may address the issue of substantial similarity. The trial court may, if necessary, hear additional evidence on the issue. See State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000) (...
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