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60 N.C. App. 779

299 S.E.2d 842

State v. Farmer

Court of Appeals of North Carolina

Decided February 15, 1983

Court of Appeals of North Carolina · decided 1983-02-15

Cited by 15 later decisions — most recently January 1984

15 state decisions

Key passage — most relied on by later courts

“Nevertheless, we do not believe there was sufficient proof of the prior convictions to constitute an aggravating factor. The method of proof of prior convictions is set forth in G.S. 15A-1340.4(e). That subsection also provides: ‘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.’ There is no evidence in the record as to the indigency of the defendant or his representation by counsel at the time of the prior convictions. The court could not have found by a preponderance of the evidence that the defendant was not indigent or that he had counsel or had waived it at the time of his prior convictions. We believe this is a feature of the aggravating factor of prior convictions that has to be proved. We do not believe the burden should be on the defendant to prove he was indigent and did not have counsel or waive counsel. The statute provides for a presumptive sentence unless the aggravating factors outweigh the mitigating factors. The burden should be on the State to prove the aggravating factors if the presumptive sentence is not to be imposed.”

quoted by 1 later decision, including State v. Thompson

Good law ✅— No negative treatment on recordhow we know

Decided 1983-02-15

View the full empirical analysis of this case →

BECTON, Judge.

¶1 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.

¶2 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 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.]

¶3 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 *781 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.

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

¶5 Vacated and remanded.

Judges Webb and Phillips concur.
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