State v. Glover ( 2019 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA18-538
    Filed: 3 September 2019
    Henderson County, Nos. 17CRS000236-238, 17CRS000613
    STATE OF NORTH CAROLINA
    v.
    BRUCE WAYNE GLOVER, Defendant.
    Appeal by Defendant from judgment entered 20 September 2017 by Judge W.
    Erwin Spainhour in Henderson County Superior Court.           Heard in the Court of
    Appeals 27 February 2019.
    Attorney General Joshua H. Stein, by Special Deputy Attorney General
    Jonathan D. Shaw, for the State.
    Appellate Defender Glenn Gerding by Assistant Appellate Defender Sterling
    Rozear, for the Defendant.
    DILLON, Judge.
    Defendant Bruce Wayne Glover appeals from the trial court’s judgment
    entered upon a jury verdict finding him guilty of possession of various controlled
    substances. The jury was instructed on alternative theories of possession; namely,
    that Defendant was in “constructive” possession of the controlled substances and,
    alternatively, that Defendant “acted in concert” with another to possess the controlled
    substances. Defendant contends the trial court improperly instructed the jury on
    STATE V. GLOVER
    Opinion of the Court
    “acting in concert” and, thereafter, failed to properly calculate his prior record level
    (“PRL”) in sentencing.
    After careful review, we conclude that there was sufficient evidence to support
    an instruction on possession by “acting in concert.” However, we conclude that the
    trial court committed prejudicial error in calculating Defendant’s PRL and remand
    for the limited purpose of resentencing.
    I. Background
    This case arises out of officers’ discovery of various drugs in Defendant’s home.
    The evidence at trial tended to show as follows:
    Defendant lived in a home shared with a number of people, including a woman
    referred to herein as Ms. Stepp.
    In September 2016, officers arrived at Defendant’s home to investigate drug
    complaints they had received. A detective spoke with Defendant in a bedroom of the
    home. Defendant told the detective that the bedroom was his private bedroom and
    that an alcove beyond the bedroom was also his “personal space.”            Defendant
    consented to a search of his bedroom and his personal space. Prior to the search,
    Defendant told the detective that he did not believe officers would find any illegal
    substances in his bedroom or personal space, but only drug paraphernalia. Also prior
    to the search, when asked if he had ingested any illegal substances, Defendant
    admitted to having used methamphetamine and prescription pills.
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    STATE V. GLOVER
    Opinion of the Court
    During the search of Defendant’s bedroom, the detective found a white
    rectangular pill marked “G3722” masked in aluminum foil, a small bag of marijuana,
    scales, rolling papers, plastic bags, and a glass pipe in a dresser. But during the
    search of Defendant’s “personal space” adjacent to the bedroom, the detective found
    more incriminating evidence; namely, a metal tin that contained, among other items,
    (1) methamphetamine, (2) cocaine, (3) heroin, and (4) a small white rectangular pill
    that was similar in size, shape, and markings to the white pill found in Defendant’s
    bedroom.
    Defendant was charged with and, following a jury trial, subsequently convicted
    of possession of methamphetamine, heroin, and cocaine, as well as having attained
    the status of an habitual felon. In sentencing, the trial court found Defendant to be
    a PRL VI and imposed two separate sentences of fifty (50) to seventy-two (72) months
    of imprisonment, running consecutively.
    Defendant timely appealed.
    II. Analysis
    Defendant challenges his conviction in two respects, discussed below. In the
    alternative, Defendant contends that his sentencing based on a mistaken PRL was
    the result of ineffective assistance of counsel. We address each challenge in turn.
    A. Jury Instructions on Acting in Concert
    At trial, over Defendant’s objection, the court instructed the jury that it could
    find Defendant guilty of possession on the theory of acting in concert, in addition to
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    STATE V. GLOVER
    Opinion of the Court
    constructive possession. Defendant contends that the evidence did not support an
    instruction on acting in concert.
    Whether evidence offered at trial is sufficient to warrant a jury instruction is
    a question of law; “therefore, the applicable standard of review is de novo.” State v.
    Cruz, 
    203 N.C. App. 230
    , 242, 
    691 S.E.2d 47
    , 54, aff’d per curiam, 
    364 N.C. 417
    , 
    700 S.E.2d 222
    (2010).
    To support an acting in concert instruction, the State must provide sufficient
    evidence that the defendant (1) was “present at the scene of the crime” and (2) “act[ed]
    [] together with another who [did] the acts necessary to constitute the crime pursuant
    to a common plan or purpose to commit the crime.” State v. Joyner, 
    297 N.C. 349
    ,
    357, 
    255 S.E.2d 390
    , 395 (1979); State v. Erlewine, 
    328 N.C. 626
    , 637, 
    403 S.E.2d 280
    ,
    286 (1991) (noting that each person may be actually or constructively present and is
    equally guilty of any crime committed in pursuance of their common purpose). A
    defendant may be guilty through acting in concert even where another person “does
    all the acts necessary to commit the crime.” State v. Jefferies, 
    333 N.C. 501
    , 512, 
    428 S.E.2d 150
    , 156 (1993). “It is not, therefore, necessary for a defendant to do any
    particular act constituting at least part of a crime in order to be convicted of that
    crime under the concerted action principle[.]” 
    Joyner, 297 N.C. at 357
    , 255 S.E.2d at
    395.
    Possession of drugs requires proof that the defendant (1) knowingly (2)
    possessed (3) a controlled substance. See State v. Galaviz-Torres, 
    368 N.C. 44
    , 772
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    STATE V. GLOVER
    Opinion of the Court
    S.E.2d 434, 437 (2015). Though we have stated that “[t]he acting in concert theory is
    not generally applicable to possession offenses, as it tends to become confused with
    other theories of guilt[,] [o]ur courts have instructed juries on both constructive
    possession and acting in concert in possession cases.” State v. Diaz, 
    155 N.C. App. 307
    , 314, 
    575 S.E.2d 523
    , 528 (2002) (internal citation omitted). “Under the doctrine
    of acting in concert, the State is not required to prove actual or constructive
    possession if it can establish that the defendant was present at the scene of the crime
    and the evidence is sufficient to show he [was] acting together with another who [did]
    the acts necessary to constitute the crime pursuant to a common plan or purpose to
    commit the crime.” State v. Holloway, ___ N.C. App. ___, ___, 
    793 S.E.2d 766
    , 774
    (2016) (quotation omitted).
    We conclude that there was not only sufficient evidence from which the jury
    could find that Defendant constructively possessed controlled substances, but also
    sufficient evidence from which the jury could alternatively find that Defendant acted
    in concert with Ms. Stepp to possess the controlled substances.
    Defendant does not challenge that there was sufficient evidence that he
    constructively possessed the substances found in the metal tin; and, indeed, the
    evidence was sufficient to support the jury’s finding that Defendant constructively
    possessed those substances. See State v. Davis, 
    325 N.C. 693
    , 697, 
    386 S.E.2d 187
    ,
    190 (1989) (holding that a person is in constructive possession of narcotics when “he
    has both the power and the intent to control its disposition or use even though he
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    STATE V. GLOVER
    Opinion of the Court
    does not have actual possession [of the narcotics on his person]”). Indeed, Defendant
    was present and identified the area where the metal tin was found as his “personal
    space.” Further, the jury could have inferred that Defendant admitted to having just
    ingested methamphetamine and prescription pills, substances which were found in
    the metal tin and nowhere else (except for the white pill found in his bedroom). And
    the white pill found in his bedroom matched a pill found in the metal tin. Based on
    Defendant’s own admissions to the detective and the results of the search, the jury
    could have determined that Defendant had both the power and the intent to control
    the disposition of the controlled substances found in the metal tin.
    But we conclude that there also was sufficient evidence from which the jury
    could have alternatively determined that Defendant acted in concert to aid Ms.
    Stepp’s constructive possession of the controlled substances found in the metal tin.
    Specifically, Defendant called Ms. Stepp, who testified that she placed the metal tin
    in the dresser in Defendant’s personal space, that the drugs therein were hers, that
    she intended to come back later to use them, and that she and Defendant had taken
    drugs together in the past. This testimony is evidence that Ms. Stepp possessed
    (constructively) the drugs in the metal tin. Further, based on Ms. Stepp’s testimony
    along with the State’s evidence, the jury could have found that Defendant was aware
    of the presence of the drugs in the metal tin: (1) he admitted to the detective to having
    just used methamphetamine, and the only methamphetamine found in the house was
    in the metal tin; and (2) he admitted to the detective to having just ingested
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    STATE V. GLOVER
    Opinion of the Court
    prescription pills, and a pill found in his bedroom matched a pill found in the metal
    tin. And the evidence was sufficient to support findings that (1) Defendant facilitated
    Ms. Stepp’s constructive possession by allowing her to keep her drugs in a place where
    they would be safe from others; (2) Defendant did not intend to exert control over the
    disposition of those remaining drugs, as they belonged to his friend, Ms. Stepp, and
    that she controlled their disposition; and (3) Defendant was actually present when
    the drugs were in Ms. Stepp’s constructive possession.
    We, therefore, conclude that the trial court did not err in instructing the jury
    on the theory of possession by “acting in concert.” See State v. Garcia, 
    111 N.C. App. 636
    , 640-41, 
    433 S.E.2d 187
    , 189-90 (1993) (concluding that the evidence was
    sufficient to instruct on “constructive possession” and alternatively on possession by
    “acting in concert”).
    B. Calculation of Prior Record Level
    Defendant next contends that the trial court erred by sentencing him as a PRL
    VI with twenty-one (21) points. We agree that Defendant should have been assigned
    fewer than twenty-one (21) points. We conclude that he should have been assigned
    seventeen (17) points, which would qualify Defendant to be sentenced as a PRL V
    offender. Therefore, we remand for resentencing.
    A trial court’s determination of a defendant’s PRL is a conclusion of law that
    is subject to de novo review on appeal. State v. Bohler, 
    198 N.C. App. 631
    , 633, 
    681 S.E.2d 801
    , 804 (2009).
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    STATE V. GLOVER
    Opinion of the Court
    A sentencing judge must determine a defendant’s PRL pursuant to Section
    15A-1340.14 of our General Statutes. State v. Alexander, 
    359 N.C. 824
    , 827, 
    616 S.E.2d 914
    , 917 (2005).     First, “[t]he State bears the burden of proving, by a
    preponderance of the evidence, that a prior conviction exists.” N.C. Gen. Stat. § 15A-
    1340.14(f) (2015).   Second, the court determines the PRL by adding the points
    attributed to each of the defendant’s prior convictions according to their
    classifications. N.C. Gen. Stat. § 15A-1340.14(a) (2015).
    The State may prove a prior conviction “by . . . [s]tipulation of the parties[,]”
    among other methods.       N.C. Gen. Stat. § 15A-1340.14(f).        Typically, a “mere
    worksheet, standing alone, is insufficient to adequately establish a defendant’s prior
    record level.” 
    Alexander, 359 N.C. at 827
    , 616 S.E.2d at 917. However, a worksheet
    that has been agreed upon by both parties will suffice to meet the State’s
    “preponderance of the evidence” requirement for each conviction. See Arrington, ___
    N.C. at ___, 819 S.E.2d at 333.
    When the parties stipulate to a completed worksheet, they are stipulating that
    the facts underlying the conviction support the noted classification of each listed
    offense:
    This proof by stipulation necessarily includes the factual
    basis and legal application to the facts underlying the
    conviction. . . . Thus, like a stipulation to any other
    conviction, when a defendant stipulates to the existence of
    a prior second-degree murder offense in tandem with its
    classification as either a B1 or B2 offense, he is stipulating
    that the facts underlying his conviction justify that
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    STATE V. GLOVER
    Opinion of the Court
    classification.
    
    Id. (emphasis added).
    “Once a defendant makes this stipulation, the trial court then
    makes a legal determination by reviewing the proper classification of an offense so as
    to calculate the points assigned to that prior offense.” 
    Id. Here, Defendant
    stipulated to the record pursuant to Section 15A-1340.14(f)
    when his defense attorney signed and stipulated to the validity of the entire
    worksheet used to determine Defendant’s PRL.                    “Although we have found that
    [D]efendant stipulated to possessing a prior record level of [VI], we will review
    [D]efendant's record level to determine if it was unauthorized at the time it was
    imposed” or was otherwise invalid as a matter of law. State v. Mack, 
    188 N.C. App. 365
    , 380, 
    656 S.E.2d 1
    , 12 (2008).1 In so doing, and insofar as the law allows, we will
    assume that the stipulated convictions listed in the worksheet are factually
    supported. See Arrington, ___ N.C. at ___, 819 S.E.2d at 334 (explaining that judges
    are not in the position to question convictions stipulated to by both parties).
    Defendant’s PRL worksheet contains a total of forty-seven (47) prior
    convictions from North Carolina, Georgia, and Florida. We must first determine
    which convictions were eligible for inclusion in Defendant’s PRL calculation.
    1. Convictions Supporting Habitual Felon Status
    1   We briefly note, here, that Defendant did not object to his sentencing during the trial.
    Regardless, a defendant’s appeal is statutorily preserved where he or she alleges the “[t]he sentence
    imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was
    illegally imposed, or is otherwise invalid as a matter of law.” State v. Meadows, ___ N.C. ___, ___, 
    821 S.E.2d 402
    , 406 (2018) (quoting N.C. Gen. Stat. § 15A-1446(d)(18) (2017)).
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    STATE V. GLOVER
    Opinion of the Court
    To start, we must first disregard the three convictions used by the jury to
    convict Defendant of obtaining habitual felon status. Concurrent with his conviction
    in this case of felony possession of controlled substances, Defendant was found to
    have attained habitual felon status. And “convictions used to establish a person’s
    status as an habitual felon shall not be used” to determine that person’s PRL.
    N.C. Gen. Stat. § 14-7.6 (2015). As the jury used three of Defendant’s forty-seven (47)
    convictions to assign Defendant habitual felon status, they may not be used in his
    PRL calculations. This leaves forty-four (44) prior convictions.
    2. Convictions Rendered in the Same Week or Session of Court
    Next, though his convictions span nearly four decades, Defendant received
    many of his convictions in groups on the same day or session of court. “[I]f an offender
    is convicted of more than one offense in a single superior court during one calendar
    week [or in a single district court in one session of court], only the conviction for the
    offense with the highest point total is used.” N.C. Gen. Stat. § 15A-1340.14(d) (2015).
    On 30 June 2006, Defendant was convicted in Henderson County district court
    of twelve (12) crimes. The eleven (11) convictions with the lowest point total may not
    be used to determine his PRL. Therefore, we are left with a single Class I felony
    conviction from 30 June 2006. This reduces the number of prior convictions from
    forty-four (44) to thirty-three (33).
    On 14 May 2007, Defendant was convicted in Henderson County superior court
    of four crimes. After removing the three convictions with the lowest points, we are
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    STATE V. GLOVER
    Opinion of the Court
    left with one Class I felony conviction from 14 May 2007. Therefore, after removing
    three convictions, Defendant has thirty (30) remaining prior convictions.
    On 16 October 2009, Defendant was convicted in Henderson County district
    court of two crimes. After removing the conviction with the lowest points, we are left
    with one Class 1 misdemeanor conviction from 16 October 2009.                Therefore,
    Defendant has twenty-nine (29) remaining prior convictions.
    On 12 February 2010, Defendant was convicted in Henderson County district
    court of five crimes. We must remove four of these convictions, leaving a single Class
    1 misdemeanor conviction with the most points from 12 February 2010. Therefore,
    after removing four convictions, Defendant has twenty-five (25) remaining prior
    convictions.
    Lastly, on 2 August 2013, Defendant was convicted in Henderson County
    district court of six crimes. After removing his five convictions with the lower points,
    we are left with one Class I felony conviction from 2 August 2013. Therefore, after
    removing these five convictions, Defendant has twenty (20) prior convictions
    remaining that may be considered in calculating his PRL.
    3. Irrelevant Misdemeanor Convictions
    Only prior felonies, “Class A1 and Class 1 nontraffic misdemeanor offense[s],
    impaired driving, impaired driving in a commercial vehicle, and misdemeanor death
    by vehicle” may be used to calculate a PRL in felony sentencing. N.C. Gen. Stat. Ann.
    § 15A-1340.14(b) (2015). Other misdemeanor traffic offenses, including driving while
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    STATE V. GLOVER
    Opinion of the Court
    license revoked, may not be used to calculate a felony PRL. Id.; State v. Flint, 
    199 N.C. App. 709
    , 728, 
    682 S.E.2d 443
    , 454 (2009) (“Being that driving while license
    revoked is a misdemeanor traffic offense, which is not included in Section 15A–
    1340.14(b)(5), it is not a conviction that can be used in determining a defendant's
    prior record level.”).
    Of the remaining twenty (20) convictions on Defendant’s worksheet, five are
    either classified as Class 2 or lower misdemeanor offenses or are factually described
    as “DWLR,” a conviction for driving while license revoked. These five convictions
    may not be used to calculate Defendant’s PRL following his present, felony conviction.
    After removing these five convictions, Defendant has fifteen (15) prior convictions
    remaining.
    4. Split Crimes
    Defendant’s remaining fifteen (15) convictions include two convictions for
    possession of drug paraphernalia, from 1983 and 2008. Defendant contends that
    these two convictions were improperly considered in the PRL calculation because the
    crime has since been split into two categories, one of which is a Class 3 misdemeanor
    not eligible for calculation.
    It is true that “the classification of a prior offense is the classification assigned
    to that offense at the time the offense for which the offender is sentenced [was]
    committed.” N.C. Gen. Stat. § 15A-1340(c). Defendant committed the crimes for
    which he is being sentenced in 2016. In 2014, possession of drug paraphernalia was
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    STATE V. GLOVER
    Opinion of the Court
    split into two separate crimes: (1) possession of marijuana paraphernalia under
    N.C. Gen. Stat. § 90-113.22A (2014), a Class 3 misdemeanor; and (2) possession of
    drug   paraphernalia   under   N.C. Gen. Stat. §        90-113.22   (2014),   a   Class   1
    misdemeanor.    Defendant argues that the two instances of possession of drug
    paraphernalia on his worksheet should be considered Class 3 misdemeanors, and
    therefore not included in the PRL calculus, rather than Class 1 misdemeanors,
    because no evidence was presented as to what sort of drug paraphernalia was
    possessed.
    However, following our Supreme Court’s recent decision in Arrington, we must
    assume that the classifications stipulated to by the parties on the worksheet are
    correct and sufficiently supported by the underlying facts of the crime. Arrington,
    ___ N.C. at ___, 819 S.E.2d at 333.       Each of Defendant’s possession of drug
    paraphernalia charges is classified as a Class 1 misdemeanor, and may be considered
    in the present PRL calculation. Fifteen (15) of Defendant’s prior convictions still
    remain.
    5. Out-of-State Convictions
    Of the fifteen (15) remaining convictions, six arise from offenses committed
    outside of North Carolina. Defendant contends that these crimes were incorrectly
    classified and received more points than allowed as a matter of law.
    Out-of-state felony convictions are, by default, treated as Class I felony
    convictions under North Carolina law.       N.C. Gen. Stat. § 15A-1340.14(e) (2015).
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    STATE V. GLOVER
    Opinion of the Court
    Similarly, out-of-state misdemeanor convictions are, by default, treated as Class 3
    misdemeanor convictions, 
    id., and are
    initially not usable in a felony PRL calculation,
    N.C. Gen. Stat. § 15A-1340.14(b)(5) (2015).              However, either party may overcome
    these presumptions by proving, by a preponderance of the evidence, that the out-of-
    state conviction reflects an offense that is substantially similar to an offense that
    North Carolina classifies differently. N.C. Gen. Stat. § 15A-1340.14(e). If proven, the
    felony conviction is not treated as a Class I felony, but rather is treated as the
    classification given to the substantially similar North Carolina offense. 
    Id. Our Court
    has long held that, while the parties may stipulate that a defendant
    was convicted of an out-of-state offense and that the offense was considered either a
    felony or misdemeanor under that state’s law, neither party may stipulate that the
    out-of-state conviction is substantially similar to a North Carolina felony or
    misdemeanor.2 We have traditionally held that “the question of whether a conviction
    under an out-of-state statute is substantially similar to an offense under North
    Carolina statutes is a question of law to be resolved by the trial court.” State v.
    Hanton, 
    175 N.C. App. 250
    , 255, 
    623 S.E.2d 600
    , 604 (2006).
    2  State v. Burgess, 
    216 N.C. App. 54
    , 59, 
    715 S.E.2d 867
    , 871 (2011) (“This Court has repeatedly
    held a defendant's stipulation to the substantial similarity of offenses from another jurisdiction is
    ineffective because the issue of whether an offense from another jurisdiction is substantially similar
    to a North Carolina offense is a question of law.”); see also State v. Powell, 
    223 N.C. App. 77
    , 81, 
    732 S.E.2d 491
    , 494 (2012); State v. Wright, 
    210 N.C. App. 52
    , 71, 
    708 S.E.2d 112
    , 125 (2011); State v.
    Moore, 
    188 N.C. App. 416
    , 426, 
    656 S.E.2d 287
    , 293-94 (2008); State v. Palmateer, 
    179 N.C. App. 579
    ,
    581-82, 
    634 S.E.2d 592
    , 593-94 (2006).
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    STATE V. GLOVER
    Opinion of the Court
    It may be argued that our Supreme Court’s reasoning in Arrington overrules
    this line of precedent. In Arrington, our Supreme Court held that a conviction’s
    classification may be stipulated to because it is, in essence, “fact driven.” Arrington,
    ___ N.C. at ___, 819 S.E.2d at 331. For the purposes of in-state convictions, when the
    defendant stipulates to a conviction, “he is stipulating that the facts underlying his
    conviction justify that classification.” Id. at ___, 819 S.E.2d at 333. Similarly, it can
    be said that, when the parties stipulate to an out-of-state conviction and its
    appropriate classification in North Carolina, they are stipulating that the underlying
    facts correspond to a particular North Carolina offense and its respective
    classification. We do not believe this is the appropriate interpretation of our Supreme
    Court’s holding.
    Allowing this form of stipulation requires an additional logical step that was
    not present in Arrington.        The facts of Arrington concern the appropriate
    classification of the defendant’s prior conviction for second-degree murder.
    Arrington, ___ N.C. at ___, 819 S.E.2d at 332. Between the time the defendant was
    convicted of second-degree murder and the time of the sentencing at issue in the case,
    our General Assembly split second-degree murder into two separate sentencing
    classifications, B1 and B2, depending on the nature of the offender’s conduct. 
    Id. The defendant
    in Arrington stipulated that his conviction was classified as B1, but later
    argued that this classification was improper as a matter of law because questions of
    law are not subject to stipulation. 
    Id. Our Supreme
    Court held that the defendant
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    STATE V. GLOVER
    Opinion of the Court
    had stipulated that the nature of his conduct underlying his murder conviction
    supported a B1 classification, and that such a stipulation was proper. Id. at ___, 819
    S.E.2d at 333.
    Notably, there was never any doubt that the facts underlying the conviction
    corresponded to the crime of second-degree murder and the Court considered only the
    classifications that may be attributed to that offense. For instance, if the offense in
    consideration had been forgery instead of second-degree murder, we do not interpret
    Arrington to allow a stipulation to a conviction for forgery with a classification of
    Class A felony. While second-degree murder may be classified as either Class B1 or
    B2, N.C. Gen. Stat. § 14-17(b)(1)-(2) (2017), there are no facts possible which would
    support a conviction for a Class A forgery, as no such crime exists, see
    N.C. Gen. Stat. § 14-119−125 (2017) (stating that each forgery crime is punishable as
    either a Class G, H, or I felony).
    In the same respect, in order to equate an out-of-state conviction with a North
    Carolina offense, the parties must first establish that the elements of the out-of-state
    offense are similar to those of a North Carolina offense.        This additional legal
    comparison must be made before an appropriate range of classifications can be
    determined. A stipulation that a defendant committed “burglary” in another state
    does not necessarily mean that he or she satisfied the elements of burglary in North
    Carolina.   Once the legal similarities have been drawn between an out-of-state
    offense and its North Carolina corollary, it may be that the North Carolina offense
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    STATE V. GLOVER
    Opinion of the Court
    can have an array of classifications; only then may a stipulation determine the
    underlying facts and the respective classification.
    For these reasons we do not interpret the holding in Arrington to overrule our
    longstanding precedent that the parties may not stipulate to the substantial
    similarity of an out-of-state conviction, nor its resulting North Carolina classification.
    Here, the State put on no evidence to support a comparison of any of Defendant’s out-
    of-state convictions to North Carolina offenses. Therefore, we must classify each
    misdemeanor conviction as a Class 3 misdemeanor and each felony conviction as a
    Class I felony.
    On the worksheet, the parties appropriately stipulate that three of Defendant’s
    six out-of-state convictions are misdemeanors in their state of origin, two are felonies,
    and one does not have a classification noted. We must classify these misdemeanors
    as Class 3 misdemeanors, and therefore may not include them in Defendant’s felony
    PRL calculations. We must classify the two felony convictions as Class I felonies in
    our calculations.   There is no information regarding the remaining conviction’s
    classification, so we elect to exclude it from our calculations.
    After removing the three out-of-state misdemeanors and the conviction
    without a classification, the total prior convictions eligible for calculating Defendant’s
    PRL is reduced from fifteen (15) to eleven (11).
    6. Calculation
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    STATE V. GLOVER
    Opinion of the Court
    Our de novo review of Defendant’s sentencing worksheet shows a total of
    eleven (11) convictions that may be used to calculate his felony PRL. The eleven
    convictions, their stipulated or required classifications, and the point values assigned
    to those classifications are as follows:
    N.C.
    Classification  Point
    Offense                            Date       State
    Misdemeanor (M) Value3
    Or Felony (F)
    Possession of Drug Paraphernalia 12/5/1983    N.C. M - Class 1         1
    Felony Possession SCH II CS        5/14/2007  N.C. F - Class I         2
    Assault on a Female                10/11/1988 N.C. M - Class 1         1
    Driving While Impaired             10/20/1988 N.C. M - Class 1         1
    Felony Possession SCH II CS        06/30/2006 N.C. F - Class I         2
    Possession of Drug Paraphernalia 7/2/2008     N.C. M - Class 1         1
    Simple Possession SCH II CS        2/12/2010  N.C. M - Class 1         1
    Receiving Stolen Goods/Property 10/16/2009 N.C. M - Class 1            1
    Possession Methamphetamine         8/2/2013   N.C. F - Class I         2
    Delivery of Cocaine w/i 1000 Ft of
    8/5/2003    FL F - Class I          2
    a Place of Worship
    VOP on Delivery of Cocaine         3/26/2004   FL F - Class I          2
    Total Points:     16
    Additionally, Defendant receives an extra point because his worksheet
    includes previous convictions for felony possession of controlled substances, the same
    crime he was convicted of in this case. N.C. Gen. Stat. § 15A-1340.14(b)(6) (2015) (“If
    all the elements of the present offense are included in any prior offense for which the
    offender was convicted, whether or not the prior offense or offenses were used in
    3 The point values are derived from Section 15A-1340.14(b).   See N.C. Gen. Stat. § 15A-
    1340.14(b).
    - 18 -
    STATE V. GLOVER
    Opinion of the Court
    determining prior record level, 1 point.”). Per our calculations, the Defendant should
    have received only seventeen (17) total points, giving him a PRL of V.                See
    N.C. Gen. Stat. § 15A-1340.14(c) (2015). Therefore, as Defendant is entitled to have
    his sentence bated, we remand to the trial court for the limited purpose of sentencing
    Defendant within the range corresponding to PRL V.
    C. Ineffective Assistance of Counsel
    Lastly, Defendant has filed a Motion for Appropriate Relief (MAR) alongside
    his appeal, arguing that he received ineffective assistance of counsel. We disagree,
    and deny Defendant’s MAR.
    The necessary components of ineffective assistance of counsel are “(1) ‘counsel's
    performance was deficient,’ meaning it ‘fell below an objective standard of
    reasonableness,’ and (2) ‘the deficient performance prejudiced the defense,’ meaning
    ‘counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
    whose result is reliable.’ ” State v. Garcell, 
    363 N.C. 10
    , 51, 
    678 S.E.2d 618
    , 644 (2008)
    (quoting Strickland v. Washington, 
    466 U.S. 668
    , 687-88 (1984)); see also State v.
    Braswell, 
    312 N.C. 553
    , 562-63, 
    324 S.E.2d 241
    , 248 (1985).
    Specifically, Defendant argues that his trial attorney was deficient because he
    stipulated to the underlying facts and classifications of three prior convictions from
    Florida in March of 2004 that should not have been considered at all. Defendant
    contends that he was materially prejudiced because the trial court’s consideration of
    these offenses raised his PRL. Further, Defendant argues, there is no rational trial
    - 19 -
    STATE V. GLOVER
    Opinion of the Court
    strategy that would warrant stipulation to a higher class of offense than what was
    actually committed. Attached to the MAR, Defendant provides the Florida court
    records concerning the convictions and an affidavit by a Florida attorney.
    Defendant has filed a MAR with our Court based on his erroneous
    classification as a PRL VI offender. But we cannot say that any error by his trial
    counsel prejudiced the sentence Defendant will receive on remand as a PRL V
    offender. Our de novo review of Defendant’s convictions already removes most of his
    out-of-court convictions from the PRL calculation.       If we were to assume the
    allegations in Defendant’s MAR were true, we would remove only the conviction for
    “VOP on Delivery of Cocaine,” as “VOP” likely refers to a violation of probation that
    may not be appropriately considered as a distinct crime. See State v. Clayton, 
    206 N.C. App. 300
    , 305, 
    697 S.E.2d 428
    , 432 (2010). Removing this conviction would
    reduce Defendant’s point total from seventeen (17) to fifteen (15) points, leaving him
    still within a PRL of V. Therefore, any deficient performance by Defendant’s trial
    counsel was not prejudicial. We deny Defendant’s MAR.
    III. Conclusion
    We conclude that the trial court’s decision to instruct the jury on the theory of
    acting in concert was not error, as there was sufficient evidence to support the
    instruction. However, we further conclude that the trial court erred by sentencing
    Defendant as a PRL VI, because the worksheet stipulated to by the parties supported
    a PRL of V. Therefore, we remand the trial court’s judgment for the limited purpose
    - 20 -
    STATE V. GLOVER
    Opinion of the Court
    of entering a sentence appropriate for a PRL V. Further, by this opinion, we deny
    Defendant’s MAR because, based on our disposition, any possible deficiency by his
    trial counsel in the calculation of Defendant’s PRL did not cause Defendant to be
    classified as a PRL V.
    NO ERROR IN PART; REVERSED AND REMANDED IN PART FOR
    RESENTENCING.
    Judge INMAN concurs.
    Judge COLLINS concurs in part and dissents in part by separate opinion.
    - 21 -
    No. COA18-538 – State v. Glover
    COLLINS, Judge concurring in part and dissenting in part.
    I concur in the majority’s opinion regarding Defendant’s prior record level.
    However, I would not reach that issue because I conclude there was insufficient
    evidence to support the trial court’s jury instruction on the theory of acting in concert.
    I further conclude the trial court’s erroneous instruction was not harmless error and
    entitles Defendant to a new trial. I therefore respectfully dissent.
    Defendant was found guilty of possession of methamphetamine, possession of
    heroin, and possession of cocaine.       The elements of possession of a controlled
    substance are that defendant (1) knowingly (2) possessed (3) a controlled substance.
    State v. Galaviz-Torres, 
    368 N.C. 44
    , 48, 
    772 S.E.2d 434
    , 437 (2015).
    The “knowingly possessed” elements of possession of a controlled substance
    may be established by a showing that: “(1) the defendant had actual possession; (2)
    the defendant had constructive possession; or (3) the defendant acted in concert with
    another to commit the crime.” State v. Diaz, 
    155 N.C. App. 307
    , 313, 
    575 S.E.2d 523
    ,
    528 (2002) (citing State v. Garcia, 
    111 N.C. App. 636
    , 639-40, 
    433 S.E.2d 187
    , 189
    (1993). “According to well-established North Carolina law, ‘it is error for the trial
    judge to charge on matters which materially affect the issues when they are not
    supported by the evidence.’” State v. Malachi, 
    371 N.C. 719
    , 731, 
    821 S.E.2d 407
    , 416
    STATE V. GLOVER
    COLLINS, J., concurring in part and dissenting in part.
    (2018) (quoting State v. Jennings, 
    276 N.C. 157
    , 161, 
    171 S.E.2d 447
    , 449 (1970)
    (citations omitted)).
    “Actual possession requires that a party have physical or personal custody of
    the item.” 
    Malachi, 371 N.C. at 730
    , 821 S.E.2d at 416 (2018) (quotation marks and
    citation omitted). In this case, it is un disputed that neither Defendant nor Ms. Stepp
    actually possessed the narcotics found in the metal tin in the dresser drawer.                 4
    “Constructive possession of contraband material exists when there is no actual
    personal dominion over the material, but there is an intent and capability to maintain
    control and dominion over it.” State v. Brown, 
    310 N.C. 563
    , 568, 
    313 S.E.2d 585
    , 588
    (1984). Where an accused has nonexclusive possession of the premises where the
    contraband is found, “constructive possession of the contraband materials may not be
    inferred without other incriminating circumstances.” 
    Id. at 569,
    313 S.E.2d at 588-
    589 (citation omitted).         The State’s evidence showed the metal tin containing
    methamphetamine, heroin, and cocaine was found in a dresser drawer in Defendant’s
    personal space. The personal space was separated from Defendant’s bedroom by a
    door. Four people were in this personal space, while Defendant was in his bedroom,
    when officers knocked on Defendant’s bedroom door and asked to search the
    surrounding       areas.      Defendant       admitted      to   officers    to   having     ingested
    4 Although the trial court instructed the jury on actual possession, Defendant did not object to
    this instruction at trial and did not argue plain error on appeal. N.C. R. App. P. 10(a)(2), (a)(4). Any
    argument related to this instruction is thus deemed abandoned. N.C. R. App. P. 28(a).
    2
    STATE V. GLOVER
    COLLINS, J., concurring in part and dissenting in part.
    methamphetamine, a substance found in the metal tin and nowhere else in the
    residence, and the white, rectangular pill found in his bedroom was similar in shape
    and markings to a pill found in the metal tin. As Defendant concedes on appeal, this
    evidence was sufficient to support a jury instruction on constructive possession of a
    controlled substance.
    “To act in concert means to act together, in harmony or in conjunction one with
    another pursuant to a common plan or purpose.” State v. Joyner, 
    297 N.C. 349
    , 356,
    
    255 S.E.2d 390
    , 395 (1979). While it is not “necessary for a defendant to do any
    particular act constituting at least part of a crime in order to be convicted of that
    crime under the concerted action principle[,]” the defendant must be “present at the
    scene of the crime and the evidence [must be] sufficient to show he is acting together
    with another who does the acts necessary to constitute the crime pursuant to a
    common plan or purpose to commit the crime.” Id. at 
    357, 255 S.E.2d at 395
    . Where
    a defendant did not do any particular act forming a part of the crime charged,
    evidence of the existence of concerted action must come from other facts. 
    Id. at 356-
    57, 255 S.E.2d at 395
    . “The acting in concert theory is not generally applicable to
    possession offenses, as it tends to become confused with other theories of guilt.” 
    Diaz, 155 N.C. App. at 314
    , 575 S.E.2d at 528 (citing State v. James, 
    81 N.C. App. 91
    , 97,
    
    344 S.E.2d 77
    , 81 (1986)).
    3
    STATE V. GLOVER
    COLLINS, J., concurring in part and dissenting in part.
    Although Defendant was present when the narcotics were found in the dresser
    drawer, and was thus present at the scene of the crime, there is no evidence that
    Defendant was present when the tin containing the narcotics was placed in the
    dresser drawer. Moreover, Ms. Stepp admitted on the stand to her possession of the
    narcotics. Ms. Stepp testified that the tin was hers and that the last place she had it
    was at Southbrook Drive, where she and Defendant used to live amongst other people.
    When asked where she last left the tin, Ms. Stepp answered,
    I put it inside a drawer. I want to say I tried to put
    something over it. But I didn’t intend – I wasn’t there. I
    wasn’t arrest that day, because I had just left. I didn’t
    intend to be gone long. But I didn’t get back as quickly as
    I would like to, and I didn’t tell anybody it was there,
    because I didn’t think it was relevant.
    While the evidence presented was sufficient evidence of Defendant’s
    constructive possession, and the evidence presented was sufficient evidence of Ms.
    Stepp’s constructive possession, the State failed to produce any evidence of concerted
    action – Defendant acting together with Ms. Stepp pursuant to a common plan or
    purpose to possess the contraband in the metal tin. 
    Joyner, 297 N.C. at 356
    , 255
    S.E.2d at 395. The majority concludes that the evidence was sufficient to support a
    finding that “Defendant facilitated Ms. Stepp’s constructive possession by allowing
    her to keep her drugs in a place where they would be safe from others[.]” I discern
    no evidentiary support for this conclusion, and believe the acting in concert theory of
    possession has become confused with the constructive theory of possession in this
    4
    STATE V. GLOVER
    COLLINS, J., concurring in part and dissenting in part.
    case, which is precisely why “[t]he acting in concert theory is not generally applicable
    to possession offenses[.]” 
    Diaz, 155 N.C. App. at 314
    , 575 S.E.2d at 528 (citation
    omitted).
    As there was insufficient evidence to support an acting in concert instruction,
    the trial court erred in giving such instruction. 
    Malachi, 371 N.C. at 731
    , 821 S.E.2d
    at 416. The trial court’s error, however, is subject to harmless error analysis. 
    Id. at 738,
    821 S.E.2d at 421. Thus, Defendant must show “‘there is a reasonable possibility
    that, had the error in question not been committed, a different result would have been
    reached at the trial out of which the appeal arises.’” 
    Id. at 738,
    821 S.E.2d at 421
    (quoting N.C. Gen. Stat. § 15A-1443(a) (2017)). Our North Carolina Supreme Court
    has emphasized the serious nature of instructional error, as occurred in this case, and
    the close scrutiny required, explaining that
    the history of this Court’s decisions in cases involving the
    submission of similar erroneous instructions and our
    consistent insistence that jury verdicts concerning a
    defendant’s guilt or innocence have an adequate
    evidentiary foundation persuade us that instructional
    errors like the one at issue in this case are exceedingly
    serious and merit close scrutiny to ensure that there is no
    “reasonable possibility” that the jury convicted the
    defendant on the basis of such an unsupported legal theory.
    However, in the event that the State presents exceedingly
    strong evidence of defendant’s guilt on the basis of a theory
    that has sufficient support and the State’s evidence is
    neither in dispute nor subject to serious credibility-related
    questions, it is unlikely that a reasonable jury would elect
    to convict the defendant on the basis of an unsupported
    legal theory.
    5
    STATE V. GLOVER
    COLLINS, J., concurring in part and dissenting in part.
    Malachi, 371 N.C. at 
    738, 821 S.E.2d at 421
    .
    While the State’s evidence was adequate to support a conclusion of Defendant’s
    constructive possession, and thus sufficient to support a jury instruction, it was not
    “exceedingly strong evidence” of Defendant’s guilt based on a constructive possession
    theory. On the other hand, the State’s evidence of Ms. Stepp’s constructive possession
    is “exceedingly strong” and disputes the evidence of Defendant’s guilt. Ms. Stepp
    testified, “The yellow tin is mine. . . . I put it inside a drawer. . . . I didn’t tell anybody
    it was there, because I didn’t think it was relevant. . . .” When asked, “You realize
    that you are admitting now that you had possession of drugs correct?”, Ms. Stepp
    responded, “Yes. Yes.”
    Where the evidence of Defendant’s constructive possession was not exceedingly
    strong, Ms. Stepp admitted to possession of the controlled substances, and the jury
    was allowed to convict Defendant for acting in concert with Ms. Stepp, there is
    certainly a “reasonable possibility” that the jury elected to convict Defendant on the
    basis of the unsupported legal theory of acting in concert to possess the controlled
    substances. Accordingly, I would vacate Defendant’s convictions for possession of
    methamphetamine, possession of heroin, possession of cocaine, and having attained
    habitual felon status, and remand the case for a new trial.
    6