Sentencing--double jeopardy--Habitual Felons Act--structured sentencing
The use of the Habitual Felons Act under N.C.G.S. § 14-7.1 et. seq. in combination with
structured sentencing under N.C.G.S. § 15A-1340.10 et. seq. to enhance defendant's sentence for
possession with intent to sell and deliver marijuana as a result of his being an habitual felon does
not violate double jeopardy because: (1) the statutory scheme of these statutes ensures that a
defendant's prior convictions will not be used to simultaneously enhance punishment; and (2) the
North Carolina Supreme Court has already concluded that our state's Habitual Felons Act
conforms with the constitutional strictures dealing with double jeopardy.
Attorney General Michael F. Easley, by Assistant Attorney
General Amy C. Kunstling, for the State.
Bruce T. Cunningham, Jr. for defendant-appellant.
WALKER, Judge.
Defendant appeals his sentence for possession with intent to
sell and deliver marijuana which was enhanced as a result of his
being an habitual felon. Our review of the record reveals the
following: On 16 May 2000, defendant pleaded guilty to possession
with intent to sell and deliver marijuana and to being an habitual
felon. Prior to the entry of this plea, the defendant moved the
trial court to dismiss his habitual felon indictment arguing that
the enhancement of his structured sentence through an application
of habitual felon status violates his constitutional rights. After
the trial court denied defendant's motion, he proceeded to enter a
guilty plea. The trial court then imposed a sentence of 80 to 105months based on defendant's status as an habitual felon and a
calculated prior record level of IV.
At the outset, we note the State has filed a motion to dismiss
the appeal contending that the defendant's entry of a guilty plea
precludes his right to raise the constitutional issues presented in
his appeal. See N.C. Gen. Stat. § 15A-1444(e)(1999); see also
State v. Young, 120 N.C. App. 456, 459, 462 S.E.2d 683, 685
(1995)(holding where defendant pleaded guilty to being an habitual
felon and did not move in the trial court to withdraw his guilty
plea, defendant was not entitled to an appeal of right from the
trial court's ruling). In response, the defendant has filed a
petition for certiorari. We elect to grant review of the
constitutional issue raised in the appeal. See N.C.R. App. P.
21(a)(1)(1999).
Defendant presents the following constitutional questions:
First, whether N.C. Gen. Stat. § 14-7.1 et. seq. (Habitual Felons
Act), when used in conjunction with N.C. Gen. Stat. § 15A-1340.10
et. seq. (structured sentencing), violates the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, Section
19 of the North Carolina Constitution by subjecting him to double
jeopardy. Second, whether the Habitual Felons Act violates Article
I, Section 6 of the North Carolina Constitution by granting to a
district attorney the complete discretion to seek an enhancement of
a statutorily prescribed sentence. This Court has recently
rejected an identical challenge to the Habitual Felons Act as
violating Article I, Section 6 of our State's constitution. SeeState v. Wilson, 139 N.C. App. 544, 550-51, 533 S.E.2d 865, 870
(2000). Accordingly, we limit our discussion to defendant's double
jeopardy argument.
Our appellate courts have previously addressed double jeopardy
challenges to this State's Habitual Felons Act. See e.g. State v.
Todd, 313 N.C. 110, 117, 326 S.E.2d 249, 253 (1985)(holding the
Habitual Felons Act alone did not violate double jeopardy); State
v. Mason, 126 N.C. App. 318, 321, 484 S.E.2d 818, 820
(1997)(rejecting double jeopardy challenge to the Violent Habitual
Felons Act); State v. Stevenson, 136 N.C. App. 235, 246, 523 S.E.2d
734, 740 (1999), disc. rev. denied, 351 N.C. 368, 543 S.E.2d 144
(2000)(also rejecting double jeopardy challenge to the Violent
Habitual Felons Act). Notwithstanding this line of decisions, the
defendant argues that the use of the Habitual Felons Act in
combination with structured sentencing violates double jeopardy by
twice enhancing his sentence. We disagree.
In reviewing the combined use of the Habitual Felons Act and
structured sentencing, it is apparent our legislature anticipated
such an argument as the defendant is now making. The statutory
scheme of these statutes ensures that a defendant's prior
convictions will not be used to simultaneously enhance punishment.
N.C. Gen. Stat. § 14-7.6 specifically prohibits the State from
using those prior “convictions used to establish a person's status
as an habitual felon” to determine a defendant's prior record level
for structured sentencing. N.C. Gen. Stat. § 14-7.6 (1999); see
also State v. Bethea, 122 N.C. App. 623, 626, 471 S.E.2d 430, 432(1996). Additionally, our Supreme Court, in State v. Todd
addressed the constitutionality of this State's Habitual Felons Act
and found the law to conform with the constitutional strictures
dealing with double jeopardy, cruel and unusual punishment, and
equal protection. Todd, 313 N.C. at 117, 326 S.E.2d at 253.
Based on our review of the record, we find the trial court
properly determined defendant's status as an habitual felon and
correctly calculated his prior record level for structured
sentencing. Further, neither structured sentencing nor the
Habitual Felons Act was used to punish the defendant for his prior
convictions. Rather, both laws were used to enhance the
defendant's punishment for his current offense. Therefore, we
conclude the Habitual Felons Act used in conjunction with
structured sentencing did not violate the defendant's double
jeopardy protections. Any further argument by the defendant
regarding the punishment provided by each of these laws should be
addressed to the legislature. Defendant's motion for appropriate
relief is denied.
Affirmed.
Judges MCGEE and HUDSON concur.
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