NO. COA02-694
On writ of certiorari to review judgment dated 27 July 1999 by
Judge Larry G. Ford in Forsyth County Superior Court. Heard in the
Court of Appeals 30 December 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General John R. Corne, for the State.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
defendant appellant.
GREENE, Judge.
Carl Lamont Davis (Defendant) by writ of certiorari appeals
from a judgment dated 27 July 1999 entered consistent with a jury
verdict finding him guilty of possession of a firearm by a felon,
and possession of a controlled substance in jail and from
Defendant's guilty plea to being a habitual felon.
Defendant was charged with three principal felonies: one count
of possession of a firearm by a convicted felon; and two counts of
possession of a controlled substance in jail. Defendant was later
charged in an ancillary indictment with having attained the status
of habitual felon based upon three underlying felony convictions:a 18 November 1991 conviction for uttering forged instruments, a 6
October 1994 conviction for possession with intent to sell and
deliver marijuana, and a 5 January 1998 conviction for possession
with intent to sell and deliver marijuana. After the guilty
verdict was returned on the principal felonies, Defendant's lawyer
stated: “At this point, in the trial, I assume that the [State]
intends to proceed on the habitual felon indictment.” The State
responded: “That's correct.” No formal arraignment on the habitual
felon indictment took place and Defendant did not request one, nor
did he object to the lack of a formal arraignment. Defendant
subsequently informed the trial court he would plead guilty, while
reserving his right to appeal the jury verdict on the underlying
felonies, to having attained the status of habitual felon. The
trial court inquired of Defendant, “Have the charges been explained
to you by your lawyer and do you understand the nature of the
charges and do you understand every element of each charge?”
Defendant responded, “Yes, sir.” The trial court also asked
Defendant whether he understood he was pleading guilty to habitual
felony status, and Defendant confirmed he did. Defendant then
entered his guilty plea to being a habitual felon.
Defendant failed to perfect his appeal, and this Court granted
Defendant's petition for writ of certiorari to come forward with a
belated appeal on 28 December 2001.
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The issues are whether: (I) the indictments charging the
principal felonies must also charge habitual felon status in orderto convict Defendant as a habitual felon and (II) it was plain
error for the trial court to fail to require a formal arraignment
on the habitual felon indictment.
At the outset, we note as Defendant pled guilty to having
attained the status of habitual felon and has not moved the
superior court to withdraw that plea, his right to appeal is
limited by N.C. Gen. Stat. § 15A-1444.
See N.C.G.S. § 15A-1444
(2001) (limiting a defendant who has pled guilty and who was
sentenced within the presumptive range of sentences, to raising
certain sentencing issues on appeal). The issues raised by
Defendant here appear to be outside those matters permitted by
section 15A-1444. Moreover, even if those issues were properly
before this Court, we conclude Defendant is not entitled to the
requested relief.
I
By his first assignment of error, Defendant argues the
indictments for the principal felonies charged in this case cannot
sustain his conviction as a habitual felon since those indictments
do not charge or state that he is a habitual felon. We disagree.
The North Carolina Supreme Court and this Court have
previously addressed this issue, and have held the principal felony
indictment need not refer to a defendant's alleged status as a
habitual felon in order to sustain either the habitual felon or the
underlying conviction.
See State v. Todd, 313 N.C. 110, 120, 326
S.E.2d 249, 255 (1985);
see also State v. Sanders, 95 N.C. App.
494, 504-05, 383 S.E.2d 409, 416
(1989) (not referring to thedefendant's habitual status in the principal indictments has become
“well established precedent” in this state). Thus, charging
Defendant as a habitual felon in a separate ancillary indictment
from the indictments for the principal felonies was not error.
II
By his second assignment of error, Defendant argues the trial
court committed plain error in failing to arraign him on his
habitual felon indictment pursuant to N.C. Gen. Stat. § 15A-928(c)
prior to the close of the State's evidence on the principal
felonies. Again, we disagree.
An arraignment usually “consists of bringing a defendant in
open court . . . before a judge having jurisdiction to try the
offense, advising [the defendant] of the charges pending against
him, and directing him to plead.” N.C.G.S. § 15A-941 (2001). The
State must either “read the charges or fairly summarize them to the
defendant.”
Id. Failure to conduct a formal arraignment is not
reversible error, unless the defendant objects and states he is not
properly informed of the charges against him.
State v. Brunson,
120 N.C. App. 571, 578, 463 S.E.2d 417, 421 (1995). Section 15A-
928 applies to offenses in which a prior conviction “raises an
offense of lower grade to one of higher grade and thereby becomes
an element of the latter.” N.C.G.S. § 15A-928(a) (2001). This
section requires in cases where a prior conviction is an element of
the charged offense, the defendant be arraigned after the
commencement of trial and before the close of the State's evidence
to give the defendant the opportunity to admit or deny the priorconviction.
See State v. Ford, 71 N.C. App. 452, 454, 322 S.E.2d
431, 432 (1984); N.C.G.S. § 15A-928(c) (2001). The proceeding
under a habitual felon indictment is different from the proceeding
required under section 15A-928.
See State v. Sullivan, 111 N.C.
App. 441, 444, 432 S.E.2d 376, 378 (1993). Proof of habitual felon
status is not a required element for a conviction of a principal
felony; in fact, the jury is not made aware of the habitual felon
indictment until after it has already returned a guilty verdict on
the principal felonies.
Id.; N.C.G.S. § 14-7.5 (2001).
In this case, section 15A-928 is therefore inapplicable to
Defendant's habitual felon charge. Furthermore, as the failure to
conduct a formal arraignment is not reversible error unless
Defendant objected and stated he was not properly informed of the
charges against him, Defendant's argument that a failure to conduct
a formal arraignment is plain error must fail. Finally, Defendant
did not object to the lack of a formal arraignment on the habitual
felon indictment and acknowledged before entering his guilty plea
he understood he was charged with having habitual felon status and
understood all the elements of that charge.
Accordingly, the trial court did not commit reversible error.
No error.
Judge TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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