STATE OF NORTH CAROLINA
v
.
ALFRED DOMINIQUE CLIFTON
Attorney General Roy Cooper, by Assistant Attorney General
Stewart L. Johnson and Assistant Attorney General Amy C.
Kunstling, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Dean Paul Loven, for defendant.
McGEE, Judge.
Alfred Dominique Clifton (defendant) was convicted on 10
January 2002 of two counts of obtaining property by false pretenses
and of having attained the status of habitual felon. The trial
court determined defendant to have a prior record level of VI and
sentenced defendant to two terms of a minimum of 168 months and a
maximum of 211 months active imprisonment to run consecutively.
Defendant appeals.
The State's evidence at trial tended to show that on 1 August
2000 defendant purchased a 2000 Yamaha sport motorcycle and trailer
from Charlotte Honda/Yamaha for $13,582.78. Defendant said he was
getting a "nice size settlement" from an automobile accident in
which he had been involved. Defendant gave George Dwight (Dwight),a sales department employee, a $500.00 personal check to hold the
motorcycle until he could return with a certified check.
Defendant returned to Charlotte Honda/Yamaha around 3:30 p.m.
Defendant and Dwight completed the bill of sale and other paperwork
for the purchase. Defendant gave Dwight a certified check from
Wachovia for the purchase and the $500.00 deposit was returned to
defendant. When Dwight and defendant took the certified check to
the cashier at Charlotte Honda/Yamaha, the cashier pointed out that
the check had not been signed. Dwight gave defendant directions to
the Wachovia branch located nearby. It was approaching 5:00 p.m.
Defendant later returned to Charlotte Honda/Yamaha and
presented the certified check, which had now been signed.
Defendant said he was able to catch a Wachovia employee just as the
bank was closing. Charlotte Honda/Yamaha accepted the check;
however, because it was after 5:00 p.m., Charlotte Honda/Yamaha was
unable to immediately verify the check. Defendant took possession
of the motorcycle and trailer that afternoon. It was later
determined that the certified check was counterfeit. The Wachovia
account listed did not exist and the check was not issued by
Wachovia.
Two days later defendant purchased a 2000 Chevrolet Suburban
from Parks Chevrolet in Charlotte. He also enrolled in the
extended warranty program for the Suburban and paid for the program
with a personal check from a First Union account. Defendant told
Robert Mussa (Mussa), the finance director for Parks Chevrolet,
that he would return later that day with a certified check for thefull purchase price of $42,998.00. Mussa told defendant to bring
the check by 5:00 p.m. Defendant returned to Parks Chevrolet
between 6:00 and 7:00 p.m. with a certified check from Wachovia.
Defendant presented the check to Mussa and the Chevrolet Suburban
was released to defendant. It was later determined that the
certified check had not been issued by Wachovia and that there was
no such account at Wachovia. The personal check from First Union
could not be verified due to problems and it was later determined
that the account did not exist.
Defendant had used a similar certified check scheme on 31 July
2000 to obtain a 2000 Lincoln Navigator and a 2000 Lincoln LS from
Queen City Lincoln-Mercury in Charlotte. Defendant told the dealer
that he was getting money from an automobile collision that would
pay for everything. Defendant made a deposit of $5,000.00 and left
to get a certified check. Defendant returned with a certified
check from Wachovia in the amount of $90,065.31 and presented it to
Julian McCall (McCall), general manager of Queen City Lincoln-
Mercury. The Lincoln Navigator was released to defendant and
defendant had another person pick up the Lincoln LS. About thirty
minutes after defendant left Queen City Lincoln-Mercury, McCall
discovered that the certified check could not be verified and
notified the police. The police arrested the person defendant sent
to pick up the Lincoln LS when the person arrived at Queen City
Lincoln-Mercury. It was later determined that the certified check
was counterfeit. The check was not issued by Wachovia, nor was
there any such account at Wachovia. Because the vehicle was equipped with a global positioning
system, the Charlotte-Mecklenburg police located the Chevrolet
Suburban defendant had obtained using the counterfeit certified
check in a garage on North Tryon Street in Charlotte on 4 August
2000. When the police arrived, defendant was standing beside the
Suburban with the keys in his pocket. The police discovered a
helmet, several checks, and a briefcase inside the Suburban. The
briefcase contained a compact disk labeled "[m]y business check
writer for my software for Windows 98" and nine blank checks,
purportedly certified checks from Wachovia.
Defendant admitted in a statement to the police that he
obtained the certified checks from a woman he knew and that the
information on the approximately $42,000.00 check and the
$90,065.35 check, including the account number, came from a Wal-
Mart check defendant had received from his former wife. The
computer program defendant used to create these checks was the one
found in his briefcase inside the Suburban. Defendant told police
where to find the Lincoln Navigator, and when police went to that
location, they discovered both the Lincoln Navigator obtained from
Queen City Lincoln-Mercury and the Yamaha Motorcycle and trailer
obtained from Charlotte Honda/Yamaha.
Defendant did not present any evidence. The jury convicted
defendant of two counts of obtaining property by false pretenses.
The State presented evidence in the habitual felon proceeding
tending to show that defendant had been convicted of at least three
prior felonies that would qualify for habitual felon status inNorth Carolina: (1) in Mecklenburg County number 92 CRS 40349,
defendant was convicted on 12 August 1992 of felonious assault with
a deadly weapon on a law enforcement officer; (2) in Mecklenburg
County number 93 CRS 70671, defendant was convicted on 19 April
1994 of feloniously obtaining property by false pretenses; and (3)
in Mecklenburg County number 95 CRS 60506, defendant was convicted
on 10 April 1996 of felony escape from prison.
Defendant has failed to put forth an argument in support of
assignments of error one through eleven and assignment thirteen.
Those assignments of error are therefore deemed abandoned pursuant
to N.C.R. App. P. 28(b)(6).
Defendant's sole argument is that the trial court erred in
sentencing defendant as an habitual felon because the sentence
violated the prohibition against cruel and unusual punishment in
the Eighth Amendment to the United States Constitution. We
disagree. Defendant was convicted of two counts of obtaining
property by false pretenses. The trial court adjudged defendant an
habitual felon and sentenced him as a Class C felon. Defendant was
sentenced to two consecutive terms of a minimum of 168 months to a
maximum of 211 months active imprisonment. N.C. Gen. Stat. §§
14-7.1 to -7.6 (2001) provide that a person who has three prior
felony convictions may be sentenced as an habitual felon.
Defendant contends that one reason he raised this issue on
appeal was to preserve the matter under State v. Zuniga, 336 N.C.
508, 513, 444 S.E.2d 443, 446 (1994), pending a decision of the
United States Supreme Court in Lockyer v. Andrade, 538 U.S. ___,155 L. Ed. 2d 144 (2003). Defendant argues that the sentence at
issue in Andrade, 538 U.S. at ___, 155 L. Ed. 2d at 153, is similar
to the sentence defendant received in the present case. However,
we note the United States Supreme Court has now reversed the Ninth
Circuit Court of Appeals' decision in Andrade. Id. at ___, 155 L.
Ed. 2d at 154. The Supreme Court held that the Ninth Circuit erred
when it granted the defendant a certificate of appealability and
thereby reversed the Federal District Court for the Central
District of California. Id. The Supreme Court stated the
California Court of Appeal decision was not contrary to or an
"unreasonable application" of the Supreme Court's "clearly
established" law. Id. at ___, 155 L. Ed. 2d at 159.
The defendant in Andrade was convicted of two counts of felony
theft for stealing less than $200.00 in videotapes from two K-Mart
stores. Id. at ___, 155 L. Ed. 2d at 152-53. The criminal
offenses in Andrade were considered "wobbler" offenses under
California law, in that they could be charged either as
misdemeanors or felonies at the discretion of the prosecutor. Id.
at ___, 155 L. Ed. 2d at 152. In Andrade, the two counts of theft
were charged as felonies. Id. at ___, 155 L. Ed. 2d at 153. While
the two predicate offenses that allow a defendant to be sentenced
under California's "three strikes" law for a third felony must be
serious or violent felonies, any felony could result in the "third
strike." Id. The jury in Andrade found the defendant had been
convicted of three counts of first degree residential burglary,
which qualified as serious or violent felonies under Californialaw. Id. The defendant was therefore subject to an application of
the "three strikes" law for each of his subsequent convictions for
petty theft. Id. The trial court sentenced the defendant in
Andrade to two consecutive terms of twenty-five years to life in
prison. Id. The California Court of Appeal affirmed the sentence
in Andrade, citing the United States Supreme Court's decisions in
Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836 (1991), Solem
v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637 (1983), and Rummel v.
Estelle, 445 U.S. 263, 63 L. Ed. 2d 382 (1980). Andrade, 538 U.S.
at ___, 155 L. Ed. 2d at 153. The California Court of Appeal
relied heavily upon the facts of the Supreme Court's decision in
Rummel to reach its conclusion that the sentence at issue in
Andrade was not disproportionate and did not constitute cruel and
unusual punishment. Id. at ___, 155 L. Ed. 2d at 153-54 (citation
omitted). The Supreme Court of California denied discretionary
review, and the Federal District Court for the Central District of
California denied the defendant's petition for a writ of habeas
corpus. Id. at ___, 155 L. Ed. 2d at 154.
The Ninth Circuit, however, granted the defendant a
certificate of appealability and reversed the Federal District
Court for the Central District of California, stating that the
California Court of Appeal decision was an "unreasonable
application of clearly established Supreme Court law" because of
the California Court of Appeal's disregard of Solem, 463 U.S. 277,
77 L. Ed. 2d 637, and thus constituted "clear error." Andrade, 538
U.S. at ___, 155 L. Ed. 2d at 154 (citation omitted). The United States Supreme Court reversed the Ninth Circuit;
however, it did so on a jurisdictional basis, never reaching the
question of whether the California Court of Appeal erred in its
decision that the sentence imposed did not constitute cruel and
unusual punishment. Id. at ___, 155 L. Ed. 2d at 154-55. The
Supreme Court acknowledged that its decisions in this area of the
law "have not been a model of clarity" and that the Supreme Court
has "not established a clear or consistent path for courts to
follow." Id. at ___, 155 L. Ed. 2d at 155 (citations omitted).
While the Supreme Court did state that "one governing legal
principle emerges as 'clearly established' under [28 U.S.C.] §
2254(d)(1): A gross disproportionality principle is applicable to
sentences for terms of years," the Court acknowledged "a lack of
clarity regarding what factors may indicate gross
disproportionality." Id. at ___, 155 L. Ed. 2d. at 156. The
Supreme Court did, however, reaffirm that the "gross
disproportionality" principle would only be violated in the
"exceedingly rare" and "extreme" case. Id. (citations omitted).
The Supreme Court, in deciding that the California Court of
Appeal decision affirming the sentence in Andrade was not "contrary
to, [nor] involved an unreasonable application of" the gross
disproportionality principle, noted several factors relevant in
both Rummel, 445 U.S. 263, 63 L. Ed. 2d 382, and Solem, 463 U.S.
277, 77 L. Ed. 2d 637, that were also present in Andrade, including
length of sentence and availability of parole, severity of the
underlying offense, and the impact of recidivism. Andrade, 538U.S. at ___, 155 L. Ed. 2d at 156. The Court also noted that the
facts in Andrade were not materially indistinguishable from Solem.
Andrade, 538 U.S. at ___, 155 L. Ed. 2d. at 157. The Supreme Court
concluded by again emphasizing that "[t]he gross disproportionality
principle reserves a constitutional violation for only the
extraordinary case." Id. at ___, 155 L. Ed. 2d. at 159.
In Ewing v. California, the United States Supreme Court did
reach the issue of "whether the Eighth Amendment prohibits the
State of California from sentencing a repeat felon to a prison term
of 25 years to life under the State's 'Three Strikes and You're
Out' law." Ewing v. California, 538 U.S. ___, ___, 155 L. Ed. 2d
108, 113 (2003). The defendant in Ewing was sentenced under
California's "three strikes" law to twenty-five years to life for
a conviction of "one count of felony grand theft of personal
property in excess of $400." Id. at ___, 155 L. Ed. 2d at 116.
Ewing had previously been convicted of four serious or violent
felonies, thereby meeting the predicate for application of the
"three strikes" law. Id. The Supreme Court denied Ewing's
petition for review of the California Court of Appeal decision that
had "rejected Ewing's claim that his sentence was grossly
disproportionate under the Eighth Amendment." Id. at ___, 155 L.
Ed. 2d at 116-17. The California Court of Appeal reasoned that
recidivist statutes such as the "three strikes" law "serve the
'legitimate goal' of deterring and incapacitating repeat
offenders." Id. at ___, 155 L. Ed. 2d at 116-17.
A plurality of three Justices employed the "grosslydisproportionate" analysis, finding that the sentence imposed in
Ewing did not violate that principle. Id. at ___, 155 L. Ed. 2d at
122-23 (noting that "Ewing's is not 'the rare case in which a
threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality.'").
Justices Scalia and Thomas affirmed the California Court of Appeal
in separate concurrences, with each stating that there is no
proportionality requirement in the Eighth Amendment. Id. at ___,
155 L. Ed. 2d at 123-24 (Scalia, J. concurring in the judgment)
(noting that out of respect for stare decisis, he would apply the
proportionality test if he could intelligently apply it, which he
could not do); Id. at ___, 155 L. Ed. 2d at 124 (Thomas, J.
concurring in the judgment). The four dissenting Justices agreed
with the plurality that the "grossly disproportionate" principle
applied; however, the dissenting Justices stated that the sentence
in Ewing violated that standard. Id. at ___, 155 L. Ed. 2d at 125
(Stevens, J. dissenting); Id. at ___, 155 L. Ed. 2d at 126-27
(Breyer, J. dissenting). Due to the failure of a majority of
Justices to reach a consensus on the basis for the result, Ewing
does not significantly clarify the "grossly disproportionate"
standard other than to reaffirm it will be violated only in the
"rare" case. 538 U.S. at ___, 155 L. Ed. 2d at 123; Id. at ___,
155 L. Ed. 2d at 127-28 (Breyer, J. dissenting).
In applying the Supreme Court's decisions in Andrade and
Ewing, our Court must continue to apply the "grossly
disproportionate" principle, remembering that "'[o]nly inexceedingly unusual non-capital cases will the sentences imposed be
so grossly disproportionate as to violate the Eighth Amendment's
proscription of cruel and unusual punishment.'" State v. Hensley,
___ N.C. App. ___, ___, 577 S.E.2d 417, 421 (2003) (quoting State
v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983)).
The facts in this case do not meet the standard of an
"exceedingly rare" and "extreme" case, in which the "grossly
disproportionate" principle would be violated. Andrade, 538 U.S.
at ___, 155 L. Ed. 2d. at 156; Ysaguire, 309 N.C. at 786, 309
S.E.2d at 441; Hensley, ___ N.C. App. at ___, 577 S.E.2d at 421.
Defendant was convicted of two counts of obtaining property by
false pretenses, being a $42,998.00 Chevrolet Suburban and a
$13,582.78 motorcycle, through an elaborate scheme of counterfeit
certified checks and false checking accounts. The fact that the
State has the discretion to select whether it will prosecute the
charge as a felony or a misdemeanor is not a determinative factor
in this analysis. See Andrade, 538 U.S. at ___, 155 L. Ed. 2d at
152 (where the crime could have been charged as a felony or a
misdemeanor); Ewing, 538 U.S. at ___, 155 L. Ed. 2d at 122
(affirming the sentence under California's "three strikes" law for
a charge that could have been charged either as a felony or a
misdemeanor).
Defendant's prior convictions that served as a predicate for
defendant to be charged as an habitual felon were: (1) a prior
conviction for obtaining property by false pretenses, the same
charge defendant has been convicted of in the present case; (2)felony escape from prison; and (3) assault with a deadly weapon on
a law enforcement officer. These crimes are serious in nature and
at least one is a violent offense. The fact that defendant has now
been convicted of two charges of the same offense as one of his
predicate offenses for habitual felon status emphasizes the purpose
of the Habitual Felon Act:
"[T]o deter repeat offenders and, at some
point in the life of one who repeatedly
commits criminal offenses serious enough to be
punished as felonies, to segregate that person
from the rest of society for an extended
period of time. This segregation and its
duration are based not merely on that person's
most recent offense but also on the
propensities he has demonstrated over a period
of time during which he has been convicted of
and sentenced for other crimes."
State v. Aldridge, 76 N.C. App. 638, 640, 334 S.E.2d 107, 108
(1985) (quoting Rummel, 445 U.S. at 284, 63 L. Ed. 2d at 397).
The sentence in the presumptive range for defendant's
convictions of two counts of obtaining property by false pretense
in violation of N.C. Gen. Stat. § 14-100, a Class H felony, without
consideration of the Habitual Felon Act, is a minimum of 16-20
months to a maximum of 20-24 months in each count, given a prior
record level of VI. See N.C. Gen. Stat. § 15A-1340.17 (2001).
Under the North Carolina Habitual Felon Act, defendant's sentence
would be as a Class C felon, and the sentence in the presumptive
range for defendant's convictions would be a minimum of 135-168
months to a maximum of 171-211 months, given a prior record level
of VI. See N.C.G.S. § 15A-1340.17. Defendant argues that he
should not be subject to North Carolina's habitual felon statutewhen the underlying felony is a Class H felony. However, as the
State points out, this Court has on several occasions affirmed the
sentence of a defendant as an habitual felon where the defendant
was convicted of an underlying Class H or Class I felony. See,
e.g., State v. Parks, 146 N.C. App. 568, 553 S.E.2d 695 (2001),
appeal dismissed and disc. review denied, 355 N.C. 220, 560 S.E.2d
355, cert. denied, ___ U.S. ___, 154 L. Ed. 2d 49 (2002) (where the
underlying felonies were felonious larceny and felonious possession
of stolen goods, Class H felonies under N.C. Gen. Stat. § 14-72);
State v. Hairston, 137 N.C. App. 352, 528 S.E.2d 29 (2000) (where
the underlying felony was felonious breaking and entering a motor
vehicle, a Class I felony under N.C. Gen. Stat. § 14-56). As noted
above, the underlying felonies of larceny by false pretense in the
present case were Class H felonies. Further, as noted by the
United States Supreme Court, when deciding whether a sentence is
grossly disproportionate, "we must place on the scales not only [a
defendant's] current felonies, but also his . . . history of felony
recidivism." Ewing, 538 U.S. at ___, 155 L. Ed. 2d at 122.
We hold that the sentence imposed on defendant as an habitual
felon is not so "grossly disproportionate" as to constitute cruel
and unusual punishment in violation of the Eighth Amendment to the
United States Constitution.
No error.
Judges HUDSON and STEELMAN concur.
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