Stipulation to the Existence of a Foreign Conviction
In State v. Morgan, 164 N.C. App. 298, 309, 595 S.E.2d 804, 812 (2004), the defendant was found guilty of assault with a deadly weapon inflicting serious injury. Morgan, 164 N.C. App. at 300, 595 S.E.2d at 807.
As in Hanton and the present case, the defendant argued that at sentencing the State failed to prove substantial similarity of a foreign conviction and therefore she was sentenced pursuant to an incorrect record level. Id. at 304, 595 S.E.2d at 809.
The Court found that the defendant stipulated to the existence of the prior convictions listed on the prior record level worksheet because defense counsel made arguments regarding the defendant's prior record level and did not otherwise object to the worksheet. Id. at 307, 595 S.E.2d at 811.
However, the Court held, "such stipulation did not extend to whether the out-of-state offenses were substantially similar to the respective North Carolina offenses." Id. at 308, 595 S.E.2d at 811.
Since the prosecution presented no evidence of substantial similarity for the defendant's foreign misdemeanors, and failed to present sufficient evidence regarding defendant's foreign felony conviction, the case was remanded for resentencing. Id. at 309, 595 S.E.2d at 812.
Morgan makes clear that there is a distinction between a stipulation to the existence of a foreign conviction and a stipulation to the substantial similarity of that conviction to the corresponding North Carolina crime.