State v. Farmer

299 S.E.2d 842 (1983)

STATE of North Carolina v. Henry P. FARMER.

No. 8218SC660.

Court of Appeals of North Carolina.

February 15, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William B. Ray, Raleigh, for the State.

Robert L. McClellan, Asst. Public Defender, Greensboro, for defendant-appellant.

BECTON, Judge.

The dispositive issue on this appeal is whether there was a sufficient evidentiary basis for the trial court's finding that defendant had prior convictions punishable by more than sixty (60) days imprisonment. The trial court used that finding as a factor in aggravation of defendant's sentence. We hold, for the following reasons, that there was not a proper evidentiary basis for that finding.

G.S. § 15A-1340.4(e) provides, in pertinent part:

(e) A prior conviction may be proved by stipulation of the parties or by the *843 original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein. No prior conviction which occurred while the defendant was indigent may be considered in sentencing unless the defendant was represented by counsel or waived counsel with respect to that prior conviction. [Emphasis added.]

In this case, a State's witness testified: "[Defendant] was convicted for petty larceny, in West Virginia, where he served ... approximately 18 days." Defense counsel, in response to the trial court's later inquiry, stated: "[Defendant] was convicted of petty larceny in either Virginia, or West Virginia, and received a 30-day sentence" and was convicted of driving under the influence of intoxicants. We are troubled by the suggestion in the record that neither the State, the trial court, nor defense counsel, knew for certain in which state defendant had been convicted or if defendant had prior convictions punishable by more than sixty (60) days imprisonment. More important, however, the trial court failed to make a finding concerning whether defendant was indigent at the prior proceedings, and if so, whether he was represented by counsel. In light of the clear mandate of G.S. § 15A-1340.4(e), such a finding was required before the prior conviction(s) could properly be considered. We therefore state the rule governing the use of prior convictions under G.S. § 1340.4, et seq.: A prior conviction is not automatically a factor to be used "to aggravate" or to enhance a defendant's sentence. A prior conviction which occurred while the defendant was indigent cannot be used unless defendant was represented by counsel or waived counsel in the earlier proceeding.

Accordingly, we vacate the sentence imposed by the trial court and remand for proceedings not inconsistent with this opinion.

Vacated and remanded.

WEBB and PHILLIPS, JJ., concur.