An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NORTH CAROLINA COURT OF APPEALS
4 November 2008
STATE OF NORTH CAROLINA
No. 06 CRS 002705
SHARIFF TEE MARTIN
On writ of certiorari to review judgment entered on or after
Court of Appeals
15 March 2007 by Judge Richard D. Boner in Cleveland County
Superior Court. Heard in the Court of Appeals 31 October 2008.
Attorney General Roy Cooper, by Assistant Attorney General
Peter A. Regulski, for the State.
Russell J. Hollers III, for defendant-appellant.
Shariff Tee Martin (“defendant”) appeals from judgment entered
after a jury found him to be guilty of assault with a deadly weapon
inflicting serious injury pursuant to N.G. Gen. Stat. § 14-32(b).
After careful review of the record, briefs and arguments of the
parties, we vacate and remand for resentencing.
On 15 March 2007, defendant was convicted of assault with a
deadly weapon inflicting serious injury.
At sentencing, the trial
court assigned defendant four prior record points for previous
convictions and one point based upon the offense being committed
-2while defendant was on probation. Defendant stipulated that he was
a Level III felon.
The trial court sentenced defendant to a
On 23 October 2007 this Court allowed defendant’s
petition for writ of certiorari for the purpose of reviewing the
Defendant’s sole argument on appeal is that the trial court
erred when calculating his prior record level.
(1) no evidence shows he was on probation on the date of the
conviction from Virginia was substantially similar to any North
Calculation of Prior Record Level
A. Offenses Committed While on Probation
incorrectly assigned one point for defendant being on probation at
the time of the sentencing.
N.C. Gen. Stat. § 15A-1340.14(b)(7) permits a trial court to
assign one point for prior record level purposes “if the offense
was committed while the offender was on supervised or unsupervised
probation, parole, or post-release supervision. . . .”
Stat. § 15A-1340.14(b)(7)(2007).
During defendant’s sentencing hearing, defendant stated that
he had been “on probation [in Virginia] since August for the
possession of marijuana charge.”
Upon defendant’s admission, the
-3prosecutor argued that defendant should be assigned a point because
he was “on probation right now.”
Here, the judgment for which
defendant was placed on probation in Virginia was entered on 19
Defendant committed the offense for which he was
convicted on 15 March 2007 before he was placed on probation in
A defendant is assigned a point pursuant to N.C. Gen.
Stat. § 15A-1340.14(b)(7) when he commits the offense while on
probation, not if he is on probation at the time of sentencing.
According to the record before us, defendant did not commit the
offense for which he was convicted while he was on probation.
hold the trial court erred by assigning defendant a point for being
on probation on his prior record level pursuant to N.C. Gen. Stat.
Defendant further argues that the State failed to prove that
his conviction for “brandishing a firearm” from Virginia was
substantially similar to any North Carolina offense.
N.C. Gen. Stat. § 15A-1340.14(f)(1) (2007) states proof of
prior convictions may be done by stipulation of the parties.
a defendant has a prior out-of-state conviction, the trial court
must determine as a matter of law whether that conviction is
“substantially similar” to an offense under North Carolina law for
the purposes of sentencing.
See N.C. Gen. Stat. § 15A-1340.14(e);
State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604
(2006); State v. Palmateer, 179 N.C. App. 579, 581, 634 S.E.2d 592,
-4In the instant case, defendant did not dispute the existence
of the out-of-state conviction, but stipulated he was a Level III
No determination was made whether the Virginia conviction
was substantially similar to any offense in North Carolina before
assigning points for the purpose of calculating defendant’s prior
We vacate and remand this case to the trial court
defendant’s conviction in Virginia for “brandishing a firearm” is
“substantially similar” to any offense in North Carolina.
Gen. Stat. § 15A-1340.14(e).
The trial court incorrectly assigned defendant a prior record
level point pursuant N.C. Gen. Stat. § 15A-1340.14(b)(7).
trial court failed to make the requisite findings and conclusions
in order to assign points for defendant’s Virginia conviction.
inconsistent with this opinion.
Vacated and remanded for resentencing.
Judges BRYANT and ARROWOOD concur.
Report per Rule 30(e).