STATE OF NORTH CAROLINA
v
.
VINCENT TODD CARPENTER,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General,
John P. Scherer, II, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender, Aaron Edward Carlos, for defendant-appellant.
EAGLES, Chief Judge.
Vincent Todd Carpenter (“defendant”) appeals from judgment
entered on jury verdicts finding him guilty of assault inflicting
serious injury, assault on a female, and habitual felon. After
careful consideration of the briefs and record, we discern no error
in part, reverse in part, vacate in part and remand for
resentencing.
At trial, the State's evidence tended to show that defendant
called the American Fiber and Finishing plant several times to
speak with Melissa Alexander (“Alexander”) on 5 August 1999.
Alexander testified that she did not want to speak with defendant.
Calvin Gainey (“Gainey”), a shift manager, answered one telephone
call from defendant and at Alexander's request, would not putAlexander on the phone. Gainey testified that defendant told him
that “he was coming down to that plant and he was going to whip her
God damn ass and anybody that got in the way.” At approximately
1:45 p.m., Alexander saw defendant at the plant. Alexander began
to run but defendant caught her and pushed her to the ground.
Defendant kicked Alexander and struck her in the head and stomach.
Gainey testified that he received a radio call that “some guy was
downstairs beating on [Alexander].” Gainey and his manager, Shane
Phillips (“Phillips”), ran to the scene. They saw Alexander lying
on the ground and defendant near her. Phillips told defendant that
he should leave. Defendant took a step toward Gainey and struck
him in the cheek with his fist. Gainey and Phillips then grabbed
hold of defendant. Defendant then attempted to grab Gainey and
Gainey struck defendant twice in the head. Defendant then
“claw[ed]” Gainey's face and grabbed Gainey's bottom lip, and
“ripped [his] bottom lip open.” Defendant stuck his fingers in
Gainey's mouth and “ripped [Gainey's] soft tissue out from under
[Gainey's] tongue” while Gainey bit defendant. Phillips pulled
defendant away and defendant pulled his hand out of Gainey's mouth
which broke Gainey's jaw. Gainey and Phillips were holding onto
defendant as the three men fell to the floor. Soon after, the
police arrived.
Defendant was charged with assault on a female, assault
inflicting serious injury, two counts of habitual misdemeanor
assault and being an habitual felon. At trial, the jury returned
guilty verdicts of assault on a female and assault inflictingserious injury. Defendant stipulated to the five misdemeanors
listed in the two habitual misdemeanor assault indictments. The
trial court then re-impaneled the jury for the habitual felon phase
of the trial. After the jury returned a guilty verdict of being an
habitual felon, the trial court pronounced that she “raised the
level of the two misdemeanor assaults to class H felony, habitual
misdemeanor assault convictions.” The trial court entered judgment
and sentenced defendant to a minimum term of imprisonment of 133
months to a maximum term of 169 months. Defendant appeals.
On appeal, defendant contends that the trial court erred when:
(1) the trial court engaged in ex parte communication with and
dismissed jurors; (2) the trial court denied his request to
represent himself; (3) his assault on a female conviction was not
vacated because the statute is unconstitutional; (4) his assault
inflicting serious injury conviction was not vacated for
insufficiency of the evidence; (5) his assault convictions were not
vacated because the jury instructions were erroneous; (6) his
habitual misdemeanor assault conviction was not vacated because the
statute is unconstitutional; (7) his habitual felon conviction was
not vacated because habitual misdemeanor assault is not a
substantive offense; (8) his habitual felon conviction was not
vacated because the trial court erred by failing to dismiss the
indictment because of incompetent prior convictions; (9) his
habitual felon conviction was not vacated because the “principal
indictments” are insufficient to support his sentence as an
habitual felon; (10) his habitual felon conviction was not vacatedbecause the trial court had not found defendant guilty of a felony
before the habitual felon proceeding; and (11) his sentence was not
vacated because the trial court sentenced defendant at the
incorrect prior record level. After careful consideration we
discern no error in part, reverse in part, vacate in part, and
remand for resentencing.
Defendant presents arguments relating to 18 of the 36
assignments of error in the record on appeal. Any assignments of
error not argued in defendant's brief are deemed abandoned. N.C.R.
App. P. 28(b)(6).
First, defendant contends that the trial court's ex parte
communication with and dismissal of jurors was inappropriate.
Defendant requested full recordation of the proceedings pursuant to
G.S. § 15A-1241(b). Defendant contends that the trial court held
unrecorded bench conferences, deferred five jurors without noting
any reasons in the record and swore in the remaining jury pool.
Defendant argues that the trial court's actions violated his Sixth
and Fourteenth Amendment rights under the United States
Constitution and Article I, § 23 of the North Carolina
Constitution. We do not agree.
On 20 March 2001, the trial court heard and ruled on
defendant's motion to suppress a statement made by defendant.
Defendant and his counsel were present for the hearing. After the
trial court denied the motion, the trial court ruled on some other
preliminary motions. Defendant and his counsel left the courtroom
and the jury pool was brought in. The trial court then deferredfive members of the jury pool. The clerk of court swore in the
remaining members of the jury pool. The trial court then had the
jury pool leave the courtroom. Defendant and his counsel came back
to the courtroom for another preliminary motion. The jury pool
reentered the courtroom, the trial court stated “we're ready to
begin the [defendant's] trial” and jury selection commenced.
“The Confrontation Clause in Article I, Section 23 of North
Carolina's Constitution 'guarantees the right of . . . defendant to
be present at every stage of the trial.'” State v. Rannels, 333
N.C. 644, 652-53, 430 S.E.2d 254, 258-59 (1993) (emphasis in
original) (quoting State v. Smith, 326 N.C. 792, 794, 392 S.E.2d
362, 363 (1990)). Rannels held that “defendant's trial had not
begun when the complained of unrecorded bench conferences with
prospective jurors took place. They occurred . . . before any case
had been called for trial.” Id. at 654, 430 S.E.2d at 259.
Here, defendant's trial had not commenced when the court held
unrecorded bench conferences and deferred five jurors. This
occurred before the trial court began defendant's trial. “The
jurors were not excused at a stage of the defendant's trial and the
defendant did not have the right to be present at the conferences.”
State v. Cole, 331 N.C. 272, 275, 415 S.E.2d 716, 717 (1992). This
assignment of error is overruled.
Defendant contends that he is entitled to a new trial because
the trial court denied his request to represent himself. We do not
agree. Defendant failed to object at trial and now seeks plain error
review of this assignment of error. Our Supreme Court “has elected
to review unpreserved issues for plain error when they involve
either (1) errors in the judge's instructions to the jury, or (2)
rulings on the admissibility of evidence.” State v. Gregory, 342
N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Defendant's assignment of
error here does not involve jury instructions or the admissibility
of evidence. Accordingly, this assignment of error is dismissed.
Next, defendant contends that his habitual misdemeanor assault
conviction must be vacated because G.S. § 14-33(c)(2) violates
defendant's constitutional right to equal protection of the laws.
We are not persuaded.
G.S. § 14-33(c)(2) (2001) states that “any person who commits
any assault . . . is guilty of a Class A1 misdemeanor if, in the
course of the assault . . . he or she: (2) Assaults a female, he
being a male person at least 18 years of age.” Defendant concedes
that he did not raise the constitutionality of the statute at trial
but requests that this Court review his claim pursuant to Appellate
Rule 2. It is well settled that this Court will not review
constitutional questions that “[were] not raised or passed upon in
the trial court.” State v. Elam, 302 N.C. 157, 160-61, 273 S.E.2d
661, 664 (1981). We decline to review this issue pursuant to Rule
2. This assignment of error is dismissed.
Defendant next contends that his conviction for assault
inflicting serious injury must be vacated for insufficiency of the
evidence. Specifically, defendant argues that the State did notproduce any evidence to show that defendant “volitionally or
knowingly caused these injuries.” We are not persuaded.
“When ruling on a motion to dismiss for insufficiency of the
evidence, the trial court determines whether substantial evidence
exists for each essential element of the offense charged, and
whether defendant is the perpetrator of the offense.” State v.
Gay, __ N.C. App. __, __, 566 S.E.2d 121, 123 (2002). “Substantial
evidence is that amount of relevant evidence necessary to persuade
a rational juror to accept a conclusion.” State v. Mann, 355 N.C.
294, 301, 560 S.E.2d 776, 781 (2002), cert. denied, __ U.S. __, __
L. Ed. 2d __ (Nov. 4, 2002) (No. 02-6059). “[T]he trial court is
not to be concerned with the weight of the evidence. Ultimately,
the question for the court is whether a reasonable inference of
defendant's guilt may be drawn from the circumstances.” State v.
Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citation
omitted). “In resolving this question, the trial court must
examine the evidence in the light most advantageous to the State,
drawing all reasonable inferences from the evidence in favor of the
State's case.” Mann, 355 N.C. at 301, 560 S.E.2d at 781. “The
motion to dismiss should be denied if there is substantial evidence
supporting a finding that the offense charged was committed.”
State v. Craycraft, __ N.C. App. __, __, 567 S.E.2d 206, 208
(2002).
Defendant was charged with assault inflicting serious injury
pursuant to G.S. § 14-33. “[A]ny person who commits any assault,
assault and battery, or affray is guilty of a Class A1 misdemeanorif, in the course of the assault, assault and battery, or affray,
he or she: (1) Inflicts serious injury upon another person or uses
a deadly weapon.” G.S. § 14-33(c)(1) (2001). “Our courts have
defined 'serious injury' as injury which is serious but falls short
of causing death and have indicated that 'the element of “serious
bodily injury” requires proof of more severe injury than the
element of “serious injury.”'” State v. Williams, __ N.C. App. __,
__, 571 S.E.2d 619, 622 (2002) (quoting State v. Hannah, 149 N.C.
App. 713, 718-19, 563 S.E.2d 1, 4-5, disc. review denied, 355 N.C.
754, 566 S.E.2d 81 (2002) (citations omitted)). The indictment
here alleged that defendant “did assault and strike Calvin L.
Gainey, by hitting him with his hands and fists thereby inflicting
serious injury, to wit: a broken bone in Calvin Gainey's mouth, a
damaged tooth and a broken bone in Calvin Gainey's hand.”
Here, Gainey testified that defendant: struck him in the left
cheek; “claw[ed] at my face”; “grabbed my bottom lip, and
[defendant] ripped my bottom lip open”; and “stuck his hand back in
my mouth and ripped my soft tissue out from under my tongue.”
Gainey also testified that Phillips grabbed the defendant and that
defendant “pulled his hand out of my mouth and it broke my jaw, is
what it done, around my tooth. And we fell to the floor.” The
evidence, taken in the light most favorable to the State, is
sufficient to support a finding that defendant committed the
assault inflicting serious injury and to withstand a motion to
dismiss. Defendant next contends that his assault convictions must be
vacated because the trial court's jury instructions were erroneous.
Defendant argues that the trial court erred in answering a jury
question and then failing to correct the error, by instructing the
jury on a theory of the case not presented by the indictment, and
by failing to incorporate a full self-defense instruction into the
assault inflicting serious injury charge. We are not persuaded.
Defendant argues that the trial court committed plain error by
erroneously answering a jury question and failing to correct it.
The jury sent a question to the trial court asking for the
“Definition of Assault.” The trial court then instructed the jury
that:
An assault is an -- is an overt act or an
attempt or the unequivocal appearance of an
attempt with force and violence to do some
immediate physical injury to the person of
another which show of force or menace of
violence must be sufficient to put a person of
reasonable firmness in fear of immediate
bodily harm.
The following day, the jury sent another question to the trial
court which stated: “Definition of Assault differs from 'charge'
definition by omitting the word Attempt. In proving guilty [sic]
of Assault does Physical contact have to occur?” The trial court
then instructed the jury that:
The agreement of all the parties, and I
agreed with their recommendation, is that I
ask you to rely on the jury instructions that
you've already been given. You've been given
the definition of assault and been given other
instructions as far as the offense is
concerned. And it's our belief that the
answer to that question lies within the
instructions you've already been given. So Iwould ask you to go back through the
instructions.
Defendant argues that the indictments here did not allow the State
to prove either assault based on a theory of “attempt.” Defendant
argues that these instructions allowed the jury to consider
“attempt” as a basis for a guilty verdict. We do not agree.
“In order to establish plain error, a defendant must establish
that the trial court committed error and that absent this error,
the jury would have probably reached a different result.” State v.
Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 477 (2002), cert. denied,
__ U.S. __, __ L. Ed. 2d __ (Oct. 7, 2002) (No. 02-5130). “In
deciding whether a defect in the jury instruction constitutes
'plain error,' the appellate court must examine the entire record
and determine if the instructional error had a probable impact on
the jury's finding of guilt.” State v. Odom, 307 N.C. 655, 661,
300 S.E.2d 375, 378-79 (1983).
The error in the instructions must be “so
fundamental that it denied the defendant a
fair trial and quite probably tilted the
scales against him.” We have observed that
“'[i]t is the rare case in which an improper
instruction will justify reversal of a
criminal conviction when no objection has been
made in the trial court.'”
State v. Lucas, 353 N.C. 568, 584, 548 S.E.2d 712, 723-24 (2001)
(citations omitted).
Here, the trial court instructed the jury for assault on a
female that “the defendant intentionally assaulted the victim by
hitting her with his hands and feet.” For the assault inflicting
serious injury charge, the trial court instructed that “thedefendant assaulted the victim by intentionally and without
justification or excuse hitting and/or scratching the victim.” The
trial court did not instruct on the definition of assault during
the jury charge. However, the trial court did define assault after
it received a question from the jury for a definition of assault.
The trial court, with the consent of both the State and the
defendant's counsel, brought the jury back to the courtroom and
read the pattern jury instruction on assault to the jury. The
following day, the jury sent a question seeking clarification of
the definition of assault. Again, both the State and defendant's
counsel agreed with the instruction by the trial court for the jury
to “rely on the jury instructions that [they have] already been
given.”
“The trial court is not required to frame its instructions
with any greater particularity than is necessary to enable the jury
to understand and apply the law to the evidence bearing upon the
elements of the crime charged.” State v. Weddington, 329 N.C. 202,
210, 404 S.E.2d 671, 677 (1991). The definition of assault
provided to the jury did include “attempt or the unequivocal
appearance of an attempt with force and violence to do some
immediate physical injury.” However, the trial court's instruction
during the jury charge stated that “the defendant intentionally
assaulted the victim by hitting her with his hands and feet” and
that “the defendant assaulted the victim by intentionally and
without justification or excuse hitting and/or scratching the
victim.” The inclusion of “attempt” in the definition of assaultand the trial court's instruction that the jury was to rely on the
instructions already given do not constitute plain error. “Where
the charge as a whole presents the law fairly and clearly to the
jury, the fact that isolated expressions, standing alone, might be
considered erroneous affords no grounds for a reversal.” State v.
Jones, 294 N.C. 642, 653, 243 S.E.2d 118, 125 (1978).
Defendant further argues that the trial court erred by
instructing the jury on a theory of the case not presented by the
indictment. Defendant argues that the indictment charged defendant
with assaulting Gainey “by hitting him with his hands and fists
thereby inflicting serious injury.” The trial court instructed the
jury “that the defendant assaulted the victim by intentionally and
without justification or excuse hitting and/or scratching the
victim; and second, that the defendant inflicted serious injury
upon the victim.” Defendant argues that this instruction reduced
the burden of proof and allowed the jury to consider scratching as
the cause of the injuries. We do not agree.
Here, defendant again argues that this instruction constituted
plain error. The indictment alleged “hitting [Gainey] with his
hands” and the trial court's instruction provided “hitting and/or
scratching [Gainey].” Assuming arguendo, that the instruction was
flawed, it does not rise to the level of plain error. In reviewing
the entire record to “determine if the instructional error had a
probable impact on the jury's finding of guilt,” Odom, 307 N.C. at
661, 300 S.E.2d at 379, we conclude that it did not. This
assignment of error is dismissed. Defendant's remaining argument is that the trial court erred
by failing to incorporate a “full self-defense” instruction into
the assault inflicting serious injury charge. When instructing the
jury on the assault inflicting serious injury charge, the trial
court stated that “I'm not going to reread the instruction on self
defense to you. Just remember the instructions I gave you
previously, because they apply in this offense as well as in the
prior one.” Defendant argues that “the jury failed to hear the
full instruction regarding self-defense with the elements of the
charge in mind.” We are not persuaded.
The trial court gave a complete self-defense instruction when
it instructed the jury on the assault on a female charge. The
trial court then instructed on the assault inflicting serious
injury charge and provided a summary of the self-defense
instruction and incorporated by reference the earlier instruction.
From the transcript, the two instructions were given in close
proximity as only two pages of transcript exist between the
complete self-defense instruction and the complained of
instruction. Under the plain error standard “reversal is justified
when the claimed error is so basic, prejudicial, and lacking in its
elements that justice was not done.” State v. Prevatte, 356 N.C.
178, 258, 570 S.E.2d 440, 484 (2002). The absence of a second full
self-defense instruction here is not plain error. This assignment
of error is dismissed.
In addition, defendant argues that the trial court erred by
not instructing the jury on the lesser included offenses of affrayor simple assault. This Court “will not consider arguments based
upon issues which were not presented or adjudicated by the trial
tribunal. Further, the lack of an exception or assignment of error
addressed to the issue attempted to be raised is a fatal defect.”
State v. Smith, 50 N.C. App. 188, 190, 272 S.E.2d 621, 623 (1980)
(citations omitted). Defendant did not object at trial to this
portion of the jury instructions and the record does not contain
any assignments of error pertaining to the failure of the trial
court to give instructions on the lesser included offenses of
affray or simple assault. Accordingly, this argument is waived.
Next, defendant contends that his habitual felon conviction
must be vacated because habitual misdemeanor assault is not a
substantive offense. Defendant concedes that State v. Smith, 139
N.C. App. 209, 214, 533 S.E.2d 518, 520, appeal dismissed, 353 N.C.
277, 546 S.E.2d 391 (2000) held that the habitual misdemeanor
assault statute defines a substantive offense. Defendant asks this
Court to review the issue and overrule Smith. “When a panel of
this Court has decided the same issue in a different case,
subsequent panels are bound to the decision until it is overturned
by a higher court.” State v. Taylor, 128 N.C. App. 394, 402, 496
S.E.2d 811, 816-17, aff'd, 349 N.C. 219, 504 S.E.2d 785 (1998). We
are bound by Smith and overrule this assignment of error.
Defendant next contends that his habitual misdemeanor assault
convictions must be vacated because the habitual misdemeanor
assault statute is unconstitutional. Specifically, defendantargues that G.S. § 14-33.2 is unconstitutional on its face and is
unconstitutional as applied to the defendant. We do not agree.
Defendant argues that the habitual misdemeanor assault statute
is unconstitutional as applied to defendant because it
retroactively increases the punishment for defendant's five
misdemeanor charges used to support the habitual misdemeanor
assault charge. Defendant argues that some of the prior
misdemeanors preceded the enactment of the habitual misdemeanor
assault statute. Defendant argues that this violates the ex post
facto clauses of the United States and North Carolina
Constitutions.
Defendant's argument that the felony of habitual misdemeanor
assault violates the ex post facto prohibitions has already been
rejected by this Court. See Smith, 139 N.C. App. at 214-15, 533
S.E.2d at 521. Because the habitual misdemeanor assault statute
“does not impose punishment for previous crimes, but imposes an
enhanced punishment for behavior occurring after the enactment of
the statute, because of the repetitive nature of such behavior, we
hold the habitual misdemeanor assault statute does not violate the
prohibition on ex post facto laws.” Id.
Defendant's remaining argument is that G.S. § 14-33.2 is
unconstitutional on its face. Defendant argues that his conviction
violates double jeopardy because his prior misdemeanor convictions
are elements of the habitual misdemeanor assault offense.
Defendant further argues that his habitual misdemeanor assaultconviction violates double jeopardy because it is a substantive
offense, rather than a penalty enhancing offense.
These same arguments were made by the defendant in State v.
Vardiman, 146 N.C. App. 381, 552 S.E.2d 697 (2001), cert. denied,
__ U.S. __, __ L. Ed. 2d __ (Oct. 7, 2002) (No. 01-10066) in
challenging the habitual impaired driving statute. The Vardiman
court rejected those arguments and upheld the constitutionality of
the habitual impaired driving statute. Id. at 383, 552 S.E.2d at
699. Because we conclude that the logic of Vardiman applies with
equal force here, we hold that the habitual misdemeanor assault
statute does not violate the United States Constitution or the
North Carolina Constitution provisions against double jeopardy.
G.S. § 14-33.2 (2001) states that:
A person commits the offense of habitual
misdemeanor assault if that person violates
any of the provisions of G.S. 14-33(c) or G.S.
14-34 and has been convicted of five or more
prior misdemeanor convictions, two of which
were assaults. A person convicted of violating
this section is guilty of a Class H felony.
This Court has previously noted the similarities in the
habitual misdemeanor assault statute and the habitual impaired
driving statute. See Smith, 139 N.C. App. at 213, 533 S.E.2d at
520 (“Both the habitual misdemeanor assault statute and the
habitual impaired driving statute declare that a person 'commits
the offense' if that person currently commits specified acts and
has been convicted of a specified number of similar offenses in the
past.”); Vardiman, 146 N.C. App. at 386, 552 S.E.2d at 700 (“[T]he
habitual misdemeanor assault statute was congruent in form to thehabitual driving while impaired statute such that both were
substantive and not 'merely' status offenses.”). This Court's
reasoning in Vardiman is instructive here with regard to the
defendant's double jeopardy argument.
The Vardiman court “concluded that 'the legislature must not
have intended to make habitual impaired driving solely a punishment
enhancement status.'” Vardiman, 146 N.C. App. at 385, 552 S.E.2d
at 700 (emphasis in original) (quoting State v. Priddy, 115 N.C.
App. 547, 549, 445 S.E.2d 610, 612, disc. review denied, 337 N.C.
805, 449 S.E.2d 751 (1994)).
Statutes criminalizing behavior such as theft
and murder, which are substantive offenses,
are subject to double jeopardy analysis.
Habitual impaired driving, however, is a
substantive offense and a punishment
enhancement (or recidivist, or
repeat-offender) offense.
It is not disputed that the habitual
impaired driving statute is a recidivist
statute. Of the aforementioned cases that draw
a distinction between substantive and status
offenses, none hold a recidivist statute
unconstitutional for double jeopardy reasons.
Throughout the country, recidivist statutes
are routinely upheld against double jeopardy
concerns. The more authentic distinction to be
drawn in assessing double jeopardy concerns is
between recidivist and non-recidivist
statutes, not between substantive and status
offenses. While most recidivist statutes are
set out in language that makes them
classifiable as status offenses, the
difference between a status offense and the
habitual impaired driving statute, a
substantive offense, is merely one of form,
not substance. Prior convictions of driving
while impaired are the elements of the offense
of habitual impaired driving, but the statute
“does not impose punishment for [these]
previous crimes, [it] imposes an enhanced
punishment” for the latest offense.
Id. at 385, 552 S.E.2d at 700 (citation omitted) (emphasis added).
The court then relied on Smith to “hold that the habitual impaired
driving statute does not punish prior convictions a second time,
but rather punishes the most recent conviction more severely
because of the prior convictions.” Id. at 386, 552 S.E.2d at 701.
Here, “[a] close analysis of the precise wording of the
habitual offender statutes in North Carolina reveals the intent of
the Legislature that habitual misdemeanor assault be a substantive
offense rather than merely a status for purposes of sentence
enhancement.” Smith, 139 N.C. App. at 212, 533 S.E.2d at 519-20
(emphasis added). Applying the reasoning in Vardiman here, we
conclude that habitual misdemeanor assault “is a substantive
offense and a punishment enhancement (or recidivist, or repeat-
offender) offense.” Vardiman, 146 N.C. App. at 385, 552 S.E.2d at
700 (emphasis in original).
The defendant in Vardiman also argued that habitual impaired
driving violated the double jeopardy provisions because the statute
“encompasses prior driving while impaired convictions as elements
of the crime of habitual driving while impaired.” Vardiman, 146
N.C. App. at 386, 552 S.E.2d at 701 (emphasis in original). Again,
the Vardiman court's rationale is instructive.
Defendant cites a litany of cases that seem to
stand for the proposition that “when a
criminal offense in its entirety is an
essential element of another offense a
defendant may not be punished for both
offenses.” The United States Supreme Court,
however, distinguishes prior convictions as
elements of a crime from other elements of a
crime, holding that “[o]ther than the fact of
a prior conviction, any fact that increasesthe penalty for a crime beyond the prescribed
statutory maximum must be submitted to the
jury, and proved beyond a reasonable doubt.”
Apprendi is in line with our conclusion in the
case sub judice, that whether a statute
survives a double jeopardy constitutional
analysis does not depend on whether the
statute is called substantive or status, or
whether the statute is comprised of elements
or sentencing factors, but what the statute
accomplishes in reality. The point that
“[l]abels do not afford an acceptable answer .
. . applies as well . . . to the
constitutionally novel and elusive distinction
between 'elements' and 'sentencing factors.'”
“Despite what appears to us the clear
'elemental' nature of the factor here, the
relevant inquiry is one not of form, but of
effect[.]” The effect of section 20-138.5 is
that a defendant is punished more severely for
a recent crime based on having committed
previous crimes. Consequently, section
20-138.5 does not violate the United States
and North Carolina Constitutions.
Id. at 386-87, 552 S.E.2d at 701 (citations omitted).
This Court has previously stated that “the habitual
misdemeanor assault statute similarly does not impose punishment
for previous crimes, but imposes an enhanced punishment for
behavior occurring after the enactment of the statute.” Smith, 139
N.C. App. at 214, 533 S.E.2d at 521. Accordingly, we hold that the
habitual misdemeanor assault statute does not violate the double
jeopardy provisions of the United States and North Carolina
Constitutions.
Defendant next contends that his habitual felon conviction
must be vacated because the trial court erred by failing to dismiss
the indictment due to incompetent prior convictions. Defendant
argues that the trial court erred by denying his motion to dismiss
the habitual felon indictment because the two New Jerseyconvictions were “not felonies within the meaning of the North
Carolina Habitual Felons Act.” Defendant contends that the State
did not show that defendant's New Jersey convictions were felonies
under the law of New Jersey. We agree.
In State v. Lindsey, 118 N.C. App. 549, 552-53, 455 S.E.2d
909, 911-12 (1995), this Court reversed the denial of defendant's
motion to dismiss his habitual felon charge when one of the three
convictions was a New Jersey conviction. Lindsey noted that:
The indictment does not charge defendant
with felonious possession of stolen property.
The judgment does not recite that defendant
pled guilty to a felony or was sentenced as a
felon. There was no certification from any
official that the offense charged in Count III
was a felony in New Jersey in 1975. We cannot
conclude from the length of defendant's
sentence (two to three years) that the offense
was a felony in New Jersey.
Id. at 553, 455 S.E.2d at 912. The Lindsey court “agree[d] with
[the] defendant that the State did not present substantial evidence
that this third conviction relied upon was a felony as required by
our law.” Id.
Here, defendant's two New Jersey judgments do not state that
he was convicted of a felony or sentenced as a felon. In addition,
there was no certification from any official that the two offenses
were felonies in New Jersey. We note the State's argument that
defendant could have received sentences exceeding one year for each
of his two New Jersey convictions and that “under New Jersey law,
offenses punishable by more than one year in prison constitute
common-law felonies.” United States v. Brown, 937 F.2d 68, 70 (2nd
Cir. 1991). However, Lindsey provided that “[w]e cannot concludefrom the length of defendant's sentence (two to three years) that
the offense was a felony in New Jersey.” Lindsey, 118 N.C. App.
at 553, 455 S.E.2d at 912. We conclude that the trial court erred
in denying defendant's motion to dismiss the habitual felon
indictment.
Because we conclude that defendant's habitual felon conviction
must be vacated due to incompetent prior convictions and the matter
must be remanded for resentencing, we need not address defendant's
remaining assignments of error regarding his habitual felon
conviction and prior record level.
No error in part, reversed in part, vacated in part and
remanded for resentencing.
Judges TYSON and THOMAS concur.
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