225 N.C. App. 227
N.C. Ct. App.2013Background
- Sanders was tried for robbery with a dangerous weapon in November 2009, left during jury selection, and was convicted in his absence.
- In 2011 Sanders was brought back to North Carolina and sentenced; the State sought two sentencing points for two Tennessee misdemeanor convictions.
- Evidence included a computerized criminal history printout, a prior record level worksheet, Tennessee judgments, statutes, and an explanatory sheet; NC offenses were not identified in the exhibit.
- The trial court on the record found, by a preponderance, that each Tennessee offense was substantially similar to a North Carolina offense, awarding two points and placing Sanders at prior record level III.
- Sanders appealed, challenging the court’s method of comparing out-of-state offenses and the substantial similarity finding.
- The appellate court remanded for resentencing, holding the court erred by evaluating punishments rather than comparing the offenses’ elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether similarity is determined by elements, not punishment. | Sanders argues the court erred by comparing punishments instead of elements. | State contends substantial similarity can be shown by exhibits and judicial comparison. | Remanded for proper elements-based comparison. |
| Whether the out-of-state convictions were actually substantially similar to NC offenses given the record. | Sanders contends the Tennessee convictions were not shown to be substantially similar. | State maintains the State’s exhibits establish similarity. | Remanded to perform proper elements-based substantial similarity analysis. |
Key Cases Cited
- Fortney v. State, 201 N.C. App. 662, 687 S.E.2d 518 (2010) (standard of review for sentencing similarity and prior record calculations)
- Palmateer v. State, 179 N.C. App. 579, 634 S.E.2d 592 (2006) (substantial similarity requires element-based comparison; cannot stipulate to the State’s characterization)
- State v. Burgess, N.C. App. 715 S.E.2d 867 (2011) (copy of foreign statutes can prove substantial similarity for § 15A-1340.14(e))
- State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49 (1998) (framework for evaluating out-of-state offenses)
- State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006) (out-of-state offenses reviewed by comparing statutes/elements)
- State v. Sapp, 190 N.C. App. 698, 661 S.E.2d 304 (2008) (substantial similarity test is not a literal statutory match)