Appeal by defendant from judgment entered 1 February 2001 by
Judge James C. Davis in Cabarrus County Superior Court. Heard in
the Court of Appeals 13 May 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas D. Zweigart, for the State.
Hartsell, Hartsell, & White, P.A., by H. Jay White, for
defendant-appellant.
TYSON, Judge.
I. Facts
Robert Julius Foust (“defendant”) was found guilty by a jury
of possession of a firearm by a convicted felon and stipulated to
being a habitual felon. Defendant offered evidence but did not
testify. The trial court sentenced him in the presumptive range to
a term of 121 to 155 months imprisonment based on defendant's prior
record level of V. Defendant appeals from the judgment. Neither
the trial transcript nor the record on appeal filed by defendant
reflects his entry of timely notice of appeal.
N.C.R. App. P.
9(a)(3)(h) (2001). Pursuant to N.C.R. App. P. 2 (2001), we deem it“not in the public interest to dismiss defendant's appeal[,]” and
shall address its merits.
State v. Blue, 115 N.C. App. 108, 113,
443 S.E.2d 748, 751 (1994).
II. Issues
A. Habitual Felons Act
Defendant challenges the constitutionality of the Habitual
Felons Act as applied in this case. He argues that the sentence
imposed is “grossly disproportionate” to his crime and constitutes
cruel and unusual punishment. Defendant's sentence is enhanced
both for his habitual felon status and for his prior record level
under structured sentencing. Defendant does not allege that his
prior convictions were double-counted to confer habitual felon
status and prior record points.
N.C. Gen. Stat. § 14-7.6 (1999).
Defendant did not raise his constitutional claim to the trial
court and has not assigned plain error on appeal.
N.C.R. App. P.
10(b)(1),(c)(4) (2001). The courts of this state have repeatedly
affirmed the constitutionality of the recidivist provisions of both
the Habitual Felons Act and structured sentencing.
State v. Todd,
313 N.C. 110, 326 S.E.2d 249 (1985) (holding the Habitual Felons
Act does not violate constitutional principles of equal protection,
double jeopardy, or cruel and unusual punishment);
State v. Brown,
146 N.C. App. 299, 302, 552 S.E.2d 234, 236(2001) (finding that
“the Habitual Felons Act used in conjunction with structured
sentencing did not violate the defendant's double jeopardy
protections”). Defendant fails to allege facts suggesting an
improper application of the law by the trial court. Defendant wassentenced within the applicable presumptive range for his offense
and defendant “has failed to show an abuse of discretion,
procedural misconduct, unfairness, injustice, or conduct offensive
to the public sense of fair play.”
State v. Hodge, 112 N.C. App.
462, 468, 436 S.E.2d 251, 255 (1993) (citing
State v. Aldridge, 76
N.C. App. 638, 334 S.E.2d 107 (1985) (thirty year sentence for
possession of stolen goods as an habitual felon did not constitute
cruel and unusual punishment)).
B. Admission of Statement
Defendant asserts that the trial court erred in admitting a
statement he made to police after his arrest. Defendant made no
motion to suppress this evidence below, did not object to its
introduction at trial, and has not assigned plain error on appeal.
This error has not been preserved for our review.
State v.
Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000); N.C.R.
App. P. 10(b)(1),(c)(4);
see also N.C. Gen. Stat. § 15A-975 (1999).
This assignment of error is dismissed.
No error.
Judges GREENE and HUDSON concur.
Report per Rule 30(e).
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