State v. Jester

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-10

Filed: 16 August 2016

Columbus County, Nos. 12 CRS 52444-45, 13 CRS 213

STATE OF NORTH CAROLINA, Plaintiff,

v.

LESLIE W. JESTER, Defendant.

Appeal by defendant from judgments entered 20 May 2015 by Judge Reuben

F. Young in Columbus County Superior Court. Heard in the Court of Appeals 9 June

2016.

Attorney General Roy Cooper, by Assistant Attorney General M. Denise

Stanford, for the State.

Kimberly P. Hoppin for defendant-appellant.

ZACHARY, Judge.

Leslie Jester (defendant) appeals from judgments entered upon his convictions

for possession of stolen property, obtaining property by false pretenses, and having

attained the status of an habitual felon. On appeal, defendant argues that the trial

court erred by sentencing him as an habitual felon, by failing to correctly calculate

his prior criminal record level, and by denying his motion to dismiss the charges of

obtaining property by false pretenses and possession of stolen goods. Defendant also

contends that he received ineffective assistance of counsel. We find no error in

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Opinion of the Court

defendant’s convictions for possession of stolen goods and obtaining property by false

pretenses, or in the trial court’s calculation of defendant’s prior criminal record level.

We conclude that the trial court erred by sentencing defendant as an habitual felon

and vacate and remand for resentencing. We dismiss defendant’s claim of ineffective

assistance of counsel without prejudice to his right to file a motion for appropriate

relief in the trial court.

I. Factual and Procedural Background

Craig Whaley is the owner of a building where he stored farming equipment

and metal tools. On 31 July 2012, Mr. Whaley discovered that a large number of

items were missing from the building. The next day Mr. Whaley located his missing

property on the premises of Metal Recyclers of Whiteville (“Metal Recyclers”), a

business that purchases scrap metal. Mr. Whaley testified that the total value of his

property that was found at Metal Recyclers was in excess of $1000.00.

Josh Holcomb, who was employed by Metal Recyclers in July 2012, testified

that defendant came to Metal Recyclers on 31 July 2012, with metal items to sell.

Metal Recyclers weighed and photographed the items, photographed defendant,

copied defendant’s driver’s license, and took defendant’s index finger fingerprint. In

addition, defendant signed a document certifying that he was the owner of the items

and acknowledging that he was being paid $114.00 for approximately 1200 pounds of

steel equipment.

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Detective Rene Trevino of the Chadbourn Police Department testified that he

was employed as a detective with the Columbus County Sheriff’s Department in 2012.

On 1 August 2012, Mr. Whaley reported to the Sheriff’s Department that he had

found stolen property belonging to him at Metal Recyclers. Detective Trevino

obtained information identifying defendant as the person who had sold the items to

Metal Recyclers. When defendant returned to Metal Recyclers later that day, he

agreed to accompany Detective Trevino to the law enforcement center, where

defendant waived his Miranda rights and gave a statement. Defendant told Detective

Trevino that he had obtained the metal items from a white male. However, defendant

was unable to provide the name of this person, did not affirmatively state that he had

purchased the items from this man, and did not produce a receipt for any of the items.

After speaking with defendant, Detective Trevino arrested defendant on charges of

felony larceny and obtaining property by false pretenses.

On 6 February 2013, defendant was indicted for possession of stolen property

and obtaining property by false pretenses, and on 13 March 2013, defendant was

indicted for having attained the status of an habitual felon. Defendant was tried

before a jury at the 18 May 2015 criminal session of Columbus County Superior

Court. On 20 May 2015, the jury returned verdicts finding defendant guilty of

possession of stolen goods and obtaining property by false pretenses. Based on

defendant’s stipulation to having the status of an habitual felon, the trial court

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sentenced defendant to two consecutive prison sentences of 120 to 156 months.

Defendant filed pro se notices of appeal on 22 May 2015 and 2 June 2015. Defendant’s

filings were procedurally defective, and on 15 March 2016, defendant’s appellate

counsel filed a petition for a writ of certiorari in order to obtain review of the merits

of defendant’s appeal. In our discretion, we grant defendant’s petition for certiorari,

and proceed to address the issues raised by defendant on appeal.

II. Sentencing Defendant as an Habitual Felon

Defendant argues first that the trial court erred by sentencing him as an

habitual felon where the record does not show that his status as an habitual felon

was submitted to the jury or that he entered a plea of guilty to having the status of

an habitual felon. We agree.

“A court may accept a guilty plea only if it is ‘made knowingly and voluntarily.’

A plea is voluntarily and knowingly made if the defendant is made fully aware of the

direct consequences of his plea.” State v. Russell, 153 N.C. App. 508, 511, 570 S.E.2d

245, 248 (2002) (quoting State v. Wilkins, 131 N.C. App. 220, 224, 506 S.E.2d 274, 277

(1998) (citing Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709

(1969)). This requirement is codified in Chapter 15A of the General Statutes, which

provides in relevant part that a trial judge “may not accept a plea of guilty or no

contest from the defendant without first addressing him personally” and:

(1) Informing him that he has a right to remain silent and

that any statement he makes may be used against him;

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(2) Determining that he understands the nature of the

charge;

(3) Informing him that he has a right to plead not guilty;

(4) Informing him that by his plea he waives his right to

trial by jury and his right to be confronted by the witnesses

against him;

(5) Determining that the defendant, if represented by

counsel, is satisfied with his representation; [and]

(6) Informing him of the maximum possible sentence on the

charge for the class of offense for which the defendant is

being sentenced, including that possible from consecutive

sentences, and of the mandatory minimum sentence, if

any, on the charge. . . .

N.C. Gen. Stat. § 15A-1022(a) (2015). Proceedings to determine whether a criminal

defendant has the status of an habitual felon “shall be as if the issue of habitual felon

were a principal charge.” N.C. Gen. Stat. § 14-7.5 (2015). Accordingly, a trial court

may not accept a defendant’s plea of guilty to having the status of an habitual felon

without complying with the requirements of N.C. Gen. Stat. § 15A-1022. See, e.g.,

State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001) (holding that the trial

court was required to comply with N.C. Gen. Stat. § 15A-1022 before accepting the

defendant’s plea to having attained the status of an habitual felon).

In the present case, defendant argues that the trial court erred by sentencing

him as an habitual felon without personally addressing him to make the inquiries

required by N.C. Gen. Stat. § 15A-1022, having defendant execute a transcript of plea,

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or otherwise creating a record that defendant’s plea was knowingly and voluntarily

entered. Defendant cites Gilmore, in which we held that a defendant’s stipulation,

without more, does not establish a plea of guilty. In Gilmore, as in the instant case,

the defendant stipulated to his status as an habitual felon, based upon his convictions

for the predicate offenses. The trial court sentenced the defendant as an habitual

felon based on his stipulation, without conducting a colloquy addressing the

requirements of N.C. Gen. Stat. § 15A-1022 or having the defendant execute a plea

transcript. We held that:

In this case, the record shows Defendant stipulated to the

three prior convictions alleged by the State, pursuant to

N.C. Gen. Stat. § 14-7.4. . . . The issue of whether

Defendant was an habitual felon, however, was not

submitted to the jury, and Defendant did not plead guilty

to being an habitual felon. Although Defendant did

stipulate to his habitual felon status, such stipulation, in

the absence of an inquiry by the trial court to establish a

record of a guilty plea, is not tantamount to a guilty plea. .

. . [See] N.C.G.S. § 15A-1022(a) (trial court may not accept

guilty plea without first addressing defendant personally

and making inquiries of defendant as required by this

statute). Accordingly, Defendant’s habitual felon

conviction is reversed and remanded. (emphasis added).

Gilmore, 142 N.C. App. at 471-72, 542 S.E.2d at 699. In this case, as in Gilmore, the

defendant stipulated to his status as an habitual felon and to his prior convictions for

the predicate felonies, as indicated in the following dialogue between defendant and

the trial court:

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THE COURT: All right. Madam Court Reporter, we are

back on the record in Mr. Jester’s case. And as I understand

it, Mr. Williamson, your client is - has agreed to stipulate

to his status as a habitual felon. Is that correct?

MR. WILLIAMSON: Your Honor, in an effort to expedite

things, . . . [Mr. Jester] is prepared to stipulate and to - take

his medicine as we would say.

THE COURT: Is that correct, Mr. Jester?

MR. JESTER: [Nods affirmatively].

THE COURT: Okay. All right. Gentlemen, thank you, very

much. We are ready to proceed with sentencing in this case.

And Mr. McGee, the Court will hear from the State.

...

THE COURT: All right. Thank you, very much. Mr. Jester,

you understand, do you not, that you have been indicted as

a habitual felon with regard to this case? You understand

that?

MR. JESTER: Yes, sir. I do.

THE COURT: You also understand that you are admitting

to the convictions that have been recited in the record

based on the indictment that has been handed down? You

understand that?

MR. JESTER: Yes, sir, Your Honor.

THE COURT: Do you also stipulate, sir, that these

convictions are true and accurate?

MR. JESTER: Yes, sir.

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THE COURT: Do you also stipulate, sir, that, based on

these convictions, that you are indeed of a habitual felon

status?

MR. JESTER: Yes, sir, I do.

THE COURT: All right. And you also understand, do you

not, sir, that, because of your status as a habitual felon,

that your exposure with regard to the offense for which you

have just been found guilty of by the jury that your

sentence exposure increases with regard to your admitting

or stipulating to being a habitual felon?

MR. JESTER: Yes, sir.

THE COURT: All right. And so you are hereby for the

record agreeing and thereby stipulating that you are a

habitual felon for purposes of sentencing in these two

cases. Is that correct?

MR. JESTER: Yes, sir.

THE COURT: Okay. All right. Thank you, very much. You

may have a seat. And Mr. McGee, you may proceed.

We conclude that this dialogue failed to comply with any of the requirements

of N.C. Gen. Stat. § 15A-1022. Specifically, we note that:

1. Although the trial court personally addressed defendant,

the court did not make any of the inquiries required by N.C.

Gen. Stat. § 15A-1022.

2. The trial court did not inform defendant that he had a

right not to plead guilty to being an habitual felon.

3. The trial court did not inform defendant that by pleading

guilty to having the status of an habitual felon, he was

waiving his constitutional rights to have the charge

determined by a jury and to cross-examine witnesses.

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Opinion of the Court

4. The court did not inform defendant of the minimum and

maximum sentence that he might receive, or the felony

class under which he would be sentenced as an habitual

felon.

5. The court did not determine whether defendant was

satisfied with his court-appointed counsel.

6. The trial court did not state on the record that defendant

was entering a plea of guilty, did not ask defendant if he

was entering a plea of guilty, and did not have defendant

execute a transcript of plea under oath.

We conclude that this case is functionally indistinguishable from Gilmore, in

that the record fails to establish either that defendant entered a plea of guilty to

having the status of an habitual felon, or that the trial court complied with the

requirements of N.C. Gen. Stat. § 15A-1022. As a result, we vacate defendant’s

conviction for being an habitual felon and remand for a new sentencing hearing.

In reaching this conclusion, we have considered the State’s arguments for a

contrary result. The State argues the trial court’s “failure to strictly comply with the

provisions of N.C. Gen. Stat. § 15A-1022 is not reversible error per se, but must be

evaluated upon a prejudice analysis.” In support of this position, the State directs

our attention to cases in which the record showed a relatively minor or technical

omission from the requirements of N.C. Gen. Stat. § 15A-1022.

It is true that where the record establishes, whether through a trial court’s

colloquy with a defendant or through the defendant’s execution of a plea transcript,

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Opinion of the Court

that the defendant was fully informed of his rights as required by N.C. Gen. Stat. §

15A-1022, we have required the defendant to establish that an insignificant or

technical error by the trial court was prejudicial. For example, in State v. McNeill,

158 N.C. App. 96, 580 S.E.2d 27 (2003), the record established that the defendant

signed a plea transcript, was asked under oath by the trial court whether he

understood the consequences of his plea of guilty, was informed of his rights, and was

told the class of felony applicable to his sentences as well as the maximum number of

months to which he could be sentenced for each offense. The defendant argued on

appeal that the trial court had failed to comply with N.C. Gen. Stat. § 15A-1022, on

the grounds that the court had not specified that if the defendant were sentenced to

consecutive terms of imprisonment, he would receive a longer sentence than the

maximum for each offense. We held that although the trial court’s omission “was

neither ideal nor preferable,” the defendant had failed to establish prejudice.

McNeill, 158 N.C. App. at 105, 580 S.E.2d at 32.

In contrast, in Gilmore and similar cases, we have held that where there is no

record of a valid plea of guilty, either from the trial court’s questioning the defendant

in accordance with N.C. Gen. Stat. § 15A-1022 or by means of a properly executed

plea transcript, the plea must be vacated and the defendant resentenced. In such

cases we have not required the defendant to produce evidence that he was prejudiced

beyond the prejudice inherent in the court’s failure to ensure that the defendant’s

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Opinion of the Court

plea was knowingly and voluntarily entered. The present case, like Gilmore, is one

in which there is no record that the requirements of N.C. Gen. Stat. § 15A-1022 were

met. Thus:

We acknowledge the State’s argument, based on this

Court’s decision in State v. Hendricks, 138 N.C. App. 668,

531 S.E.2d 896, (2000), that where a defendant simply

alleges technical non-compliance with G.S. § 15A-1022, but

fails to show resulting prejudice, vacation of the plea is not

required. However, in Hendricks, although the record

failed to establish that the trial court itself personally

addressed defendant as to all statutory factors as required

by the statute, the record indicated the trial court did make

some of the required inquiries, and further, the transcript

of plea between the State and the defendant “covered all

the areas omitted by the trial judge.” . . . In contrast, in this

case, there is no indication in the record of compliance, even

in part, with G.S. § 15A-1022[.] . . . [N]or does the record

contain any transcript of plea[.] . . . We believe such an

absence constitutes more than mere “technical” non-

compliance, and is sufficient to establish prejudice to

defendant.

State v. Glover, 156 N.C. App. 139, 146-47, 575 S.E.2d 835, 839-40 (2003) (emphasis

added) (quoting State v. Hendricks, 138 N.C. App. 668, 669-70, 531 S.E.2d 896, 898

(2000)). Accordingly, we conclude that defendant is entitled to a new sentencing

hearing.

III. Sentencing Defendant as a Prior Record Level IV

Defendant argues next that the trial court erred by sentencing defendant as a

prior record level IV, on the grounds that the State failed to present sufficient

evidence to support this classification. We disagree.

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The Structured Sentencing Act requires that the trial court determine a

defendant’s prior record level pursuant to N.C. Gen. Stat. § 15A-1340.14 before

sentencing a defendant for a felony conviction. Prior convictions may be proved by

any of the following methods:

(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 Division of

Criminal Information, the Division of Motor Vehicles, or of

the Administrative Office of the Courts.

(4) Any other method found by the Court to be reliable.

N.C. Gen. Stat. § 15A-1340.14(f) (2015). This statute also provides that 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.” Defendant maintains that the State failed

to meet this burden because it offered only a worksheet as evidence of defendant’s

prior criminal record. Defendant’s argument is ill-founded.

It is well established that defense counsel may be deemed to have stipulated

to the worksheet of a defendant’s prior convictions by counsel’s failure to dispute or

object to the worksheet coupled with counsel’s use of the worksheet in his argument:

[A] worksheet, prepared and submitted by the State,

purporting to list a defendant’s prior convictions is, without

more, insufficient to satisfy the State’s burden in

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Opinion of the Court

establishing proof of prior convictions. Thus, the question

here is whether the comments by defendant’s attorney

constitute a ‘stipulation’ to the prior convictions listed on

the worksheet submitted by the State.

State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002) (citing State v.

Hanton, 140 N.C. App. 679, 689, 540 S.E.2d 376, 382 (2000)).

In this case, during the sentencing hearing, the prosecutor stated the following:

PROSECUTOR: Judge, in regard to sentencing, Mr. Jester

is going to - I’m about to submit the worksheet which shows

he’s got 19 points for sentencing purposes, Your Honor.

He’s going to be a level six.

His prior convictions, Judge, prior possession of stolen

goods, a second-degree burglary, unauthorized use of a

motor vehicle, simple possession of schedule IV controlled

substance, assault by strangulation, B and E, three

separate DWI’s, an additional second-degree burglary, as

well as a communicating threats. Mr. Jester has a lengthy

criminal record, one that consists of similar crimes for

which he has been charged with today and convicted of,

spanning from 1982 forward to today. . . .

“[C]ounsel need not affirmatively state what a defendant’s prior record level is

for a stipulation with respect to that defendant’s prior record level to occur.” State v.

Alexander, 359 N.C. 824, 830, 616 S.E.2d 914, 918 (2005). In Alexander, our Supreme

Court stated the following:

Here, defense counsel did not expressly state that he had

seen the prior record level worksheet; however, we find it

telling that he specifically directed the trial court to refer

to the worksheet to establish that defendant had no prior

felony convictions. Defense counsel specifically stated that

“up until this particular case he had no felony convictions,

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Opinion of the Court

as you can see from his worksheet.” This statement

indicates not only that defense counsel was cognizant of the

contents of the worksheet, but also that he had no

objections to it. Defendant, by arguing that his trial counsel

did not stipulate to his previous misdemeanor conviction,

simply seeks to have his cake and eat it too. If defense

counsel’s affirmative statement with respect to defendant’s

lack of previous felony convictions was proper, then so too

was the implicit statement that defendant’s previous

misdemeanor convictions were properly reflected on the

worksheet in question.

Similarly, in State v. Cromartie, 177 N.C. App. 73, 81, 627 S.E.2d 677, 682-83

(2006), we discussed Alexander and held that:

[T]rial counsel acknowledged the worksheet by making

specific reference to it. . . . Then counsel proceeded to use

the information contained in the worksheet to minimize

defendant’s prior record as being ‘nonviolent.’ Finally, at

no time did trial counsel dispute any of the convictions on

the worksheet. As our Supreme Court held in Alexander,

defendant cannot “have his cake and eat it too.” Defendant

cannot use the worksheet during his sentencing hearing to

seek a lesser sentence and then have his appellate counsel

disavow this conduct on appeal in order to obtain a new

sentencing hearing.

(quoting Alexander, 359 N.C. at 830, 616 S.E.2d at 918, and citing Eubanks, 151 N.C.

App. at 506, 565 S.E.2d at 743). In the instant case, as in Alexander and Cromartie,

defendant’s counsel did not dispute the prosecutor’s description of defendant’s prior

record, or raise any objection to the contents of the proffered worksheet. In addition,

defense counsel referred to defendant’s record during his sentencing argument:

DEFENSE COUNSEL: Your Honor, if I could just briefly.

I forgot to mention this. And this was something with Mr.

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Opinion of the Court

Jester, his point of contention has always been - and this

is his first trial. You see his record level? He has always

stood up and taken accountability for the things he has

done. As such, this is his first trial. He has always, by his

contention, admitted and taken responsibility for his

actions. This is the first time, and he still contends that he

is not guilty of this, but he has always been accountable.

And you can see from his record he hasn’t committed any

crimes within the - ‘06 was his last conviction, as far as I

can tell. As such, he’s been a good boy, and I would ask

Your Honor to take that into consideration.

(emphasis added). We conclude, pursuant to the holdings in Alexander and

Cromartie, that defendant stipulated to the prior record as stated on the worksheet.

Defendant also contends that the trial court erred by assigning points to three

out-of-state convictions in defendant’s criminal record. N.C. Gen. Stat. § 15A-

1340.14(e) (2015) provides in relevant part that:

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 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. . . .

In this case, defendant challenges the trial court’s calculation of prior record

points assigned to three convictions from South Carolina for DWI, breaking and

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entering, and second-degree burglary. The convictions for breaking and entering and

for second-degree burglary were treated as Class I felonies and assigned two points

each. On appeal, defendant argues that the State was required to offer proof that

breaking and entering and second-degree burglary are classified as felonies in South

Carolina. As discussed above, we have held that defendant stipulated to the accuracy

of the worksheet offered by the prosecutor, which includes the points assigned to the

offenses. In State v. Hinton, 196 N.C. App. 750, 675 S.E.2d 672 (2009), we held that

if a defendant stipulates to his prior record and the prosecutor does not seek to assign

a classification higher than the default Class I, the State is not required to prove that

the out-of-state offenses correspond to equivalent North Carolina offenses:

A sentencing worksheet coupled with statements by

counsel may constitute a stipulation to the existence of the

prior convictions listed therein. In this case, Defendant

argues that the trial court’s calculation of his prior record

level was not supported by sufficient evidence to show that

his out-of-state convictions were “substantially similar” to

North Carolina offenses. Because Defendant’s assertions at

trial and failure to object to the sentencing worksheet

constituted a stipulation to the existence of his prior

convictions, we affirm his sentence. . . .

...

According to the statute, the default classification for out-

of-state felony convictions is “Class I.” Where the State

seeks to assign an out-of-state conviction a more serious

classification than the default Class I status, it is required

to prove “by the preponderance of the evidence” that the

conviction at issue is “substantially similar” to a

corresponding North Carolina felony. However, where the

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State classifies an out-of-state conviction as a Class I

felony, no such demonstration is required.

Hinton, 196 N.C. App. at 751, 754-55, 675 S.E.2d at 673, 675. We hold that because

defendant stipulated to his prior record and the prosecutor did not seek to assign a

classification more serious than Class I to his out-of-state convictions for second-

degree burglary and breaking and entering, the State was not required to offer proof

that these offenses were considered felonies in South Carolina or that they were

substantially similar to specific North Carolina felonies.

Regarding the South Carolina DWI conviction, defendant argues that in the

absence of proof that this offense was substantially similar to a North Carolina

offense, the conviction should have been classified as a Class 3 misdemeanor with no

points assigned to defendant’s criminal record level. Assuming that defendant is

correct, this would have resulted in defendant’s having eighteen prior record points

instead of nineteen points, and defendant would nonetheless have been classified as

a Level VI offender. As a result, defendant has failed to establish prejudice arising

from any error in classification of the South Carolina DWI conviction.

Defendant also maintains that the trial court erred by assigning prior record

points to two convictions that the record indicated were obtained on the same day.

Defendant concedes that this situation is not a factual impossibility, and we again

note that defendant stipulated to his prior record. We conclude that the trial court

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Opinion of the Court

did not err in its calculation of defendant’s prior record level and that defendant is

not entitled to relief based on this argument.

IV. Denial of Defendant’s Motion to Dismiss

Defendant argues next that the trial court erred by denying defendant’s motion

to dismiss the charges against him, on the grounds that the State failed to present

sufficient evidence to submit the charges to the jury. We disagree.

The standard of review regarding motions to dismiss is well settled:

“When reviewing a defendant’s motion to dismiss a charge

on the basis of insufficiency of the evidence, this Court

determines whether the State presented substantial

evidence in support of each element of the charged offense.

Substantial evidence is relevant evidence that a reasonable

person might accept as adequate, or would consider

necessary to support a particular conclusion. In this

determination, all evidence is considered in the light most

favorable to the State, and the State receives the benefit of

every reasonable inference supported by that evidence. . . .

[I]f there is substantial evidence - whether direct,

circumstantial, or both - to support a finding that the

offense charged has been committed and that the

defendant committed it, the case is for the jury and the

motion to dismiss should be denied.”

State v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012) (quoting State v. Abshire,

363 N.C. 322, 327-28, 677 S.E.2d 444, 449 (2009)).

We first consider defendant’s challenge to the evidence of possession of stolen

property. N.C. Gen. Stat. § 14-71.1 (2015) provides in relevant part that:

If any person shall possess any chattel, property, money,

valuable security or other thing whatsoever, the stealing or

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taking whereof amounts to larceny or a felony, either at

common law or by virtue of any statute made or hereafter

to be made, such person knowing or having reasonable

grounds to believe the same to have been feloniously stolen

or taken, he shall be guilty of a Class H felony. . . .

The elements of the crime of possession of stolen goods are: “(1) possession of

personal property; (2) which has been stolen; (3) the possessor knowing or having

reasonable grounds to believe the property to have been stolen; and (4) the possessor

acting with a dishonest purpose.” State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810,

815 (1982). In this case, defendant challenges the sufficiency only of the evidence

that he knew or had reasonable grounds to believe that the metal items were stolen.

“Whether the defendant knew or had reasonable grounds to believe that . . .

[property was] stolen must necessarily be proved through inferences drawn from the

evidence.” State v. Brown, 85 N.C. App. 583, 589, 355 S.E.2d 225, 229 (1987) (citation

omitted). “Our Supreme Court has held the legislature intended for the ‘reasonable

man’ standard to apply to the offense of possession of stolen goods.” State v. Weakley,

176 N.C. App. 642, 652, 627 S.E.2d 315, 321 (2006) (citing State v. Parker, 316 N.C.

295, 304, 341 S.E.2d 555, 560 (1986)). “The fact that a defendant is willing to sell

property for a fraction of its value is sufficient to give rise to an inference that he

knew, or had reasonable grounds to believe, that the property was stolen.” Brown,

85 N.C. App. at 589, 355 S.E.2d at 229.

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In this case, the evidence tended to show that defendant was in possession of

stolen property valued at more than $1000.00, which he sold for only $114.00.

Although defendant told Detective Trevino that he obtained the stolen property from

a “white man,” he could not provide the man’s name. Defendant did not specifically

tell Detective Trevino that he bought the items from this unidentified man, and did

not produce a receipt. We hold that these circumstances were sufficient to allow the

jury to determine whether defendant knew or had reasonable grounds to know that

the metal items were stolen.

Defendant also challenges the sufficiency of the evidence that he obtained

property by false pretenses. N.C. Gen. Stat. § 14-100(a) (2015) provides in pertinent

part that a person is guilty of the felony of obtaining property by false pretenses if he

shall “by means of any kind of false pretense . . . obtain or attempt to obtain from any

person within this State any . . . property . . . with intent to cheat or defraud any

person of such [property]. . . . ” Defendant argues that because there was no evidence

that he knew or had reasonable grounds to believe that the metal items he sold were

stolen, there was no basis for the jury to find that defendant’s representation that he

was authorized to sell the items was false. For the reasons discussed above, we

conclude that there was sufficient evidence that defendant knew or had reasonable

grounds to believe that the items were stolen, and that the trial court did not err by

denying defendant’s motion to dismiss this charge.

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STATE V. JESTER

Opinion of the Court

V. Ineffective Assistance of Counsel

Finally, defendant argues:

Should this Court determine that trial counsel’s brief

comments at the sentencing hearing constitute a

stipulation to Mr. Jester’s prior record despite insufficient

proof and no indication of Mr. Jester’s assent, then Mr.

Jester contends that he received ineffective assistance of

counsel in his counsel’s failure to challenge the insufficient

proof of his prior convictions.

Defendant is thus arguing that his counsel was ineffective for stipulating to

the accuracy of the worksheet setting out his criminal record instead of challenging

the proof of his prior convictions. “When raising claims of ineffective assistance of

counsel, the ‘accepted practice’ is to bring these claims in post-conviction proceedings,

rather than on direct appeal. . . . To best resolve this issue, an evidentiary hearing

available through a motion for appropriate relief is our suggested mechanism.” State

v. Dinan, 233 N.C. App. 694, 700, 757 S.E.2d 481, 486-87 (quoting State v. Dockery,

78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985)), disc. review denied, 367 N.C. 522,

762 S.E.2d 203 (2014). We dismiss this issue without prejudice to defendant’s right

to raise it in a motion for appropriate relief in the trial court.

VI. Conclusion

For the reasons discussed above, we conclude that defendant received a fair

trial free of reversible error as to his convictions for possession of stolen property and

obtaining property by false pretenses, as well as the calculation of his prior criminal

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STATE V. JESTER

Opinion of the Court

record level. We conclude that the trial court erred in sentencing defendant as an

habitual felon and vacate the judgment and remand for resentencing. We dismiss

defendant’s claim of ineffective assistance of counsel without prejudice to defendant’s

right to file a motion for appropriate relief in the trial court.

NO ERROR IN PART, VACATED IN PART AND REMANDED FOR

RESENTENCING, AND DISMISSED WITHOUT PREJUDICE IN PART.

Judge STEPHENS and Judge McCULLOUGH concur.

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