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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA12-500 NORTH CAROLINA COURT OF APPEALS Filed: 4 December 2012 STATE OF NORTH CAROLINA v. JACKIE COX Buncombe County No. 11 CRS 54845

Appeal by defendant from judgment entered 15 December 2011 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 26 November 2012. Roy Cooper, Attorney General, by Tammera S. Hill, Assistant Attorney General, for the State. Levine & Stewart, by James E. Tanner, III, for defendantappellant. MARTIN, Chief Judge. Defendant Jackie Cox appeals from a judgment entered upon his guilty plea to habitual impaired driving and driving while license revoked. Defendant contends the trial court erred in We

calculating his prior record level for sentencing purposes. remand for re-sentencing. Defendant pled guilty to habitual impaired driving

and

-2driving while license revoked on to 15 his December prior 2011. At as

sentencing,

defendant

stipulated

convictions

listed on the prior record level worksheet, except for two 1989 New York State "Petit larceny" convictions. The trial court

found that the State proved by a preponderance of the evidence that defendant was the same offender who received the two New York larceny convictions, and that "the New York convictions are substantially statutes[.]" similar to North Carolina misdemeanor larceny

The trial court determined defendant was a Level

III offender with six points, including two points for the New York convictions. presumptive-range Defendant appeals. Defendant contends the trial court erred in finding The trial court term of 17 to sentenced 21 months defendant to a

imprisonment.

defendant to have a prior record level III with 6 points because the trial court improperly relied upon out-of-state convictions. Specifically, sufficient defendant to argues show the (1) State that failed defendant to produce been

evidence

had

convicted of the two New York convictions; and (2) that his 1989 petit larceny New York convictions were substantially similar to the North Carolina crime of misdemeanor larceny.

-3The standard of review relating to the sentence imposed by the trial court "is whether the sentence is supported by

evidence introduced at the trial and sentencing hearing."

State

v. Chivers, 180 N.C. App. 275, 278, 636 S.E.2d 590, 593 (2006), disc. review denied, 361 N.C. 222, 642 S.E.2d 709 (2007).

However, "the question of whether a conviction under an out-ofstate statute is substantially similar to an offense under North Carolina statutes is a question of law" requiring de novo review on appeal. State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d

600, 604 (2006). "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." N.C. Gen. Stat.

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