STATE OF NORTH CAROLINA
v. Rutherford County
Nos. 01 CRS 691-92
CHRIS JIMMERSON
WYNN, Judge.
Defendant was found guilty of possession of cocaine with
intent to sell or deliver and sale and delivery of cocaine, based
on evidence that on 13 April 2001, he sold $100 worth of crack
cocaine to a deputy sheriff working undercover for the Forest City
Police Department. In a separate proceeding, the jury found
defendant to be an habitual felon. By judgment entered 7 September
2001, the trial court consolidated defendant's offenses and
sentenced defendant as an habitual felon with a Prior Record Level
of III from 116 to 149 months imprisonment. Defendant appealed.
In his first assignment of error, defendant claims the trial
court erred in denying his request for a specific jury instruction
on the issue of identity at the habitual felon proceeding. TheState sought to prove defendant's prior felony convictions by
introducing certified copies of judgments reflecting convictions
for felony breaking and entering in 1989, possession of cocaine in
1995, and robbery with a dangerous weapon in 1997. Defendant asked
that the jury be apprised of the State's burden to prove his
identity as the “Chris Jimerson” listed on these judgments. The
trial judge replied that he would simply give the pattern
instruction. The trial court ultimately charged the jury as
follows:
For you to find the defendant guilty of
being an habitual felon the State must prove
these three things beyond a reasonable doubt.
First, that on the 18th of May of 1989 the
defendant was convicted of felonious breaking
and entering in Superior Court of Rutherford
County, North Carolina . . . .
Second, the State must prove beyond a
reasonable doubt within the Superior Court of
Rutherford County . . . that on February 27,
1995, the defendant was convicted of felonious
possession of cocaine . . . .
. . . Third, the State must prove beyond
a reasonable doubt that on the 21st of July of
1997 the defendant in Rutherford County
Superior Court was convicted of the felony of
robbery with a dangerous weapon . . . .
(emphasis added).
We find the trial court's actions proper in all respects.
Defendant did not propose any specific language for the instruction
and did not tender his request to the trial court in writing. See
State v. McNeil, 346 N.C. 233, 240, 485 S.E.2d 284, 288 (1997)
(citing State v. Martin, 322 N.C. 229, 237, 367 S.E.2d 618, 623
(1988)), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647 (1998). Moreover, while not invoking the issue of “identity,” the trial
court instructed the jury on the State's burden to prove beyond a
reasonable doubt that defendant had been convicted of the three
prior felonies. “These instructions adequately informed the jury
that the State had to prove that defendant was the perpetrator.
Any error in the failure to give the requested instruction thus was
harmless beyond a reasonable doubt.” State v. Penland, 343 N.C.
634, 656, 472 S.E.2d 734, 746-47 (1996) (citations omitted), cert.
denied, 519 U.S. 1098, 136 L. Ed. 2d 725 (1997).
Although not assigned as error in the record on appeal,
defendant has identified a clerical error on the judgment entered
by the trial court. At sentencing, the prosecutor represented to
the trial court that defendant had a Prior Record Level of III,
based on six prior record points. The prosecutor tendered a
worksheet in support of these findings. The worksheet contained an
alternative calculation which assigned defendant thirteen prior
record points and a Prior Record Level of IV. This calculation
included points for the prior felonies used to charge defendant
with habitual felon status. Because the jury had found defendant
to be an habitual felon, these prior convictions were excluded from
his prior record for sentencing purposes. See N.C. Gen. Stat. §
14-7.6 (2001) (“In determining the prior record level, convictions
used to establish a person's status as an habitual felon shall not
be used.”).
Upon the parties' agreement that defendant was a Prior Record
Level III, the trial court announced its intention to sentencedefendant as a Class C felon and a Prior Record Level III, and
imposed a sentence within the applicable presumptive range. See
N.C. Gen. Stat. § 15A-1340.17 (2001). On the written judgment,
however, defendant is given thirteen prior record points and a
Prior Record Level of IV. It appears that in reducing the judgment
to writing, the trial court mistakenly relied upon the alternative
figures from prior record worksheet.
Defendant was not prejudiced by the clerical error.
Nevertheless, we deem it appropriate to remand the judgment to the
trial court for the limited purpose of correcting the prior record
level and prior record points reflected thereon. See State v.
Hilbert, 145 N.C. App. 440, 446, 549 S.E.2d 882, 886 (2001) (citing
State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784
(1999)).
The record on appeal contains additional assignments of error
not addressed in defendant's appellate brief. They are deemed
abandoned. See N.C.R. App. P. 28(b)(6) (2002).
No prejudicial error; remanded for correction of judgment.
Judges McGEE and CAMPBELL concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***