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On 12 November 2013, defendant was indicted in case number 13 CRS 050637

for three counts of engaging in a sexual act with a person of the age of 14 years at the

time of the offense. Defendant was also indicted in case number 13 CRS 050638 for

three counts of engaging in vaginal intercourse with a person of the age of 14 years

at the time of the offense. The State later moved to amend the indictments and

change the victim’s age to “14 or 15” years old without objection from the defense.

The two cases, 13 CRS 050637 and 050638, were consolidated for trial. Defendant’s

first trial ended in a mistrial.

Defendant’s second trial began during the 30 November 2015 criminal session

of Madison County Superior Court, the Honorable R. Gregory Horne presiding. On

4 December 2015, a jury found defendant guilty on all counts.

After the verdicts were read and jurors dismissed, but prior to sentencing in

13 CRS 050637-38, the trial court judge addressed a charge against defendant in case

number 13 CRS 050557. In 13 CRS 050557 defendant was charged with failure to

register as a sex offender. Defendant pled guilty to failing to register as a sex

offender. The trial court found that defendant had ten prior record points; nine points

for prior convictions and one point for being on probation when the offenses were

committed. Defendant stipulated that he was a prior record level IV and the trial

court sentenced him as such. Defendant was sentenced to 25 to 39 months in 13 CRS

050557, to run concurrently with sentencing imposed in 13 CRS 050637-38.

Thereafter, the trial court sentenced defendant to three consecutive terms of 365 to

498 months in 13 CRS 050637-38.

Defendant appeals.



II. Discussion



Defendant’s sole argument on appeal is that the trial court erred in sentencing

him as a prior record level IV because it failed to comply with the notice requirements

of N.C. Gen. Stat. § 15A-1340.16.

N.C. Gen. Stat. § 15A-1340.14(b)(7) allows the trial court to assign one prior

record level point “[i]f the offense was committed while the offender was on

supervised or unsupervised probation[.]” N.C. Gen. Stat. § 15A-1340.14(b)(7) (2015)

(hereinafter referred to as the “probation point”). However, N.C. Gen. Stat. § 15A

1340.16(a6) provides that:

The State must provide a defendant with written notice of its intent to prove the existence of . . . a prior record level point under G.S. 15A-1340.14(b)(7) at least 30 days before trial or the entry of a guilty or no contest plea. A defendant may waive the right to receive such notice.

Defendant argues that the present case is controlled by our ruling in State v.

Snelling, 231 N.C. App. 676, 752 S.E.2d 739 (2014), and we agree. In the Matter of

Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a

panel of the Court of Appeals has decided the same issue, albeit in a different case, a

subsequent panel of the same court is bound by that precedent, unless it has been

overturned by a higher court.”).

In Snelling, the parties stipulated that the defendant had six prior record level

points, one of them being a probation point, and that defendant was a prior record

level III. Snelling, 231 N.C. App. at 681, 752 S.E.2d at 744. Despite the defendant’s

stipulation before the trial court to the number of prior record level points and prior

record level, our Court held that

The statute [N.C. Gen. Stat. § 15A-1340.16(a6)] is clear that unless defendant waives the right to such notice, the State must provide defendant with advanced written notice of its intent to establish . . . a probation point pursuant to N.C. Gen. Stat. 15A-1340.14(b)(7). . . .



Here the trial court never determined whether the statutory requirements of N.C. Gen. Stat. § 15A1340.16(a6) were met. Additionally, there is no evidence in the record to show that the State provided sufficient notice of its intent to prove the probation point. Moreover, the record does not indicate that defendant waived his right to receive such notice. Thus, the trial court erred by including the probation point in its sentencing of defendant as a [prior record level] III. This error was prejudicial because the probation point raised defendant's [prior record level] from a [prior record level] II to a [prior record level] III.

Similarly, in defendant’s case, there is no indication in the record that the trial

court made a determination that the statutory requirements of N.C. Gen. Stat. § 15A

1340.16(a6) were met. There is nothing in the record to demonstrate that defendant

received written notice of the State’s intent to prove the probation point or that he

waived his right to receive such notice. Under Snelling, defendant’s stipulations do

not serve as a waiver of his right to notice pursuant to N.C. Gen. Stat. § 15A

1340.16(a6). Therefore, the trial court erred by including the probation point in its

sentencing of defendant as a prior record level IV. This error was prejudicial because

it raised defendant’s prior record level from a III to IV. Accordingly, we vacate

defendant’s sentence and remand to the trial court for a new sentencing hearing.