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[T] State v. Osteen8/3/2004
App. 638, 430 S.E.2d 491 (1993), this Court held that:
It is the general rule that failure to object to an alleged error in the trial court waives the consideration of such error on appeal. When a defendant has failed to object to an alleged error, but contends that an exception by rule or law was deemed preserved or taken without an objection at trial it is the defendant's burden to establish his right to appellate review by showing that the exception was preserved by rule or law or that the error alleged constitutes plain error. Defendant may carry this burden by alert theappellate court that no action was taken by counsel at trial and then establish his right to review by asserting the manner in which the exception was preserved or how the error may be noticed although not brought to the attention of the trial court. If defendant fails to comply with these requirements, his right to appellate review is waived.
Id. at 642, 430 S.E.2d at 494 (internal citations and quotation marks omitted).
The Court in Degree held that the defendant had waived his right to appellate review because he failed to object at the sentencing hearing to the trial court's consideration of the aggravating factor, failed to give this Court notice of his failure to object, and failed to establish that any rule or law would preserve his assignment of error without an objection. Id. at 643, 430 S.E.2d at 494.
Here, defendant failed to object to the trial court's finding that he was a Level One offender for DWI sentencing purposes. Indeed, quite to the contrary, defendant actually agreed to the sentencing level when he stipulated that he was a Level One offender. During the sentencing hearing, the following exchange occurred between the prosecutor and defense counsel:
[Prosecutor]: As to the DWI, would you (defense counsel) stipulate that he's a level one? He has one specifically convicted on January 23rd of 1997, Transylvania County, and that as another grossly aggravating factor he has a child under the age of 16 in his motor vehicle at the time of the offense?
[Defense Counsel]: We can stipulate he's a level one for the DWI sentencing.
Further, defendant did not establish that any rule or law preserved his assignment of error. Thus, his right to appellate review on this issue is waived.
No error.
Judges MCCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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