NO. COA02-460

NORTH CAROLINA COURT OF APPEALS

Filed: 04 March 2003

    Appeal by defendant from judgment entered 1 November 2001 by Judge Judson D. DeRamus, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 29 January 2003.

    Roy Cooper, Attorney General, by Amy C. Kunstling, Assistant Attorney General, for the State.

    Eugene Metcalf and Bruce T. Cunningham, Jr. for defendant- appellant.

    STEELMAN, Judge.

    Defendant, Charles Anthony Hall, appeals convictions for obtaining property by false pretenses and habitual felon status. There is no prejudicial error.
    The State's evidence tended to show the following: On 12 December 2000, defendant went to Linens 'N Things. He picked up a massager from a store display and presented it to the cashier and said he was making a return. He did not have a receipt and could only get a store credit. Defendant picked out two pillows and amattress pad. These items cost less than the massager and defendant was given a gift card for the balance of approximately $7.00.
    The cashier requested defendant's driver's license, which he provided. He yelled that she was typing in an incorrect number and cursed at the cashier. The cashier called the manager, who had previously dealt with defendant returning merchandise without a receipt. Defendant eventually left with two pillows, the mattress pad and the $7.00 gift card.
    After defendant left the premises, the cashier and the manager told another store clerk about the incident. The store clerk stated that he had seen defendant enter the store empty-handed and pick the massager up from a display. The manager then called the police.
    The State presented evidence under Rule 404(b) of the North Carolina Rules of Evidence that this was not the first time defendant had “returned” merchandise that he had picked up upon entering a store. On 11 February 1997, defendant tried to return a pair of shoes at Rack Room Shoes for a cash refund. He subsequently picked out a cheaper pair of shoes for an exchange and received the balance in cash.
    Defendant's evidence tended to show the following: On the night of 12 December 2000, defendant's girlfriend, PennyLittlejohn, was a passenger in his car. He parked in front of Linens 'N Things, retrieved a box from the trunk, and entered the store. Defendant testified that he had purchased the massager at a different Linens 'N Things store in Durham for use by elderly members of his church. He further testified that the church had the receipt and that efforts to retrieve it had been unsuccessful.
    The jury found defendant guilty of obtaining property by false pretenses, a felony. The trial court then proceeded to the habitual felon stage of the trial before the same jury. The State presented evidence of three prior felony convictions, and the jury found defendant guilty of being a habitual felon. He was sentenced to an active sentence in the N.C. Department of Corrections of 150 to 189 months. Defendant appeals.
    By his first and second assignments of error, defendant argues ineffective assistance of counsel. We disagree.
    In order to establish ineffective assistance of counsel, a defendant must establish: (1) that his attorney's performance fell below an objective standard of reasonableness; and (2) that the defendant was prejudiced by his attorney's performance to the extent that there exists a reasonable probability that the result of the trial would have been different absent the error. State v. Jaynes, 353 N.C. 534, 547-48, 549 S.E.2d 179, 191 (2001), cert. denied, 535 U.S. 934, 152 L. Ed. 2d 220 (2002).     Here, defendant argues ineffective assistance of counsel in that his attorney did not make an opening or closing argument or present evidence during the habitual felon status portion of the trial. However, the transcript of the trial proceedings reveals that his attorney, David Liner, provided competent assistance to defendant throughout the trial. During the trial on the obtaining property by false pretenses charge, defendant had already admitted to numerous felony convictions in addition to the three felonies used by the State to show his habitual felon status. During the habitual felon stage of the trial, the State introduced court records confirming defendant's three prior felony convictions. Thus, there was no dispute concerning defendant's habitual felon status. Ineffectiveness of counsel is not presumed simply because Mr. Liner did not present evidence during this phase of the proceedings. See also Bell v. Cone, 535 U.S. 685, 152 L. Ed. 2d 914, reh'g denied, ___ U.S. ___, 153 L. Ed. 2d 866 (2002).
    Defendant further argues that Mr. Liner did not present any evidence at the sentencing hearing from which the trial court could find the existence of mitigating factors. We disagree.
    Defendant was sentenced in the presumptive range. It is well- established that the trial court does not need to make findings of mitigating and aggravating factors when a defendant is sentenced in the presumptive range. State v. Campbell, 133 N.C. App. 531, 542,515 S.E.2d 732, 739, reh'g denied, 351 N.C. 111, 540 S.E.2d 370 (1999). Here, given defendant's extensive criminal history and his own testimony, we find that a reasonable probability that the result of the trial would have been different absent the alleged error does not exist. See State v. Crain, 73 N.C. App. 269, 326 S.E.2d 120 (1985). Defendant fails to establish ineffective assistance of counsel by the two-part test. We find no merit in these assignments of error.
    By his third and fourth assignments of error, defendant argues the trial court erred by sentencing him as a Class C felon without adjudicating him a habitual felon. We disagree.
    Defendant asserts that he was not properly adjudged a habitual felon because the trial judge did not check Box #5 on the judgment and commitment form which states the trial court “adjudges the defendant to be an habitual felon to be sentenced as a Class C felon[.]” It is not the checking of a box that adjudges a defendant a habitual felon.
    Section 15A-1331 of the North Carolina General Statutes provides, in pertinent part, that “[f]or the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest.” N.C. Gen. Stat. § 15A-1331(b) (2001). A defendant has been adjudged guilty when the jury returns a guilty verdict. State v. Reaves, 142 N.C.App. 629, 544 S.E.2d 253 (2001) (citing State v. Fuller, 48 N.C. App. 418, 420, 268 S.E.2d 879, 881, disc. review denied, 301 N.C. 403, 273 S.E.2d 448 (1980)). Thus, defendant was adjudged a habitual felon when the jury returned its guilty verdict. The judgment entered in this case clearly states that defendant was found guilty by the jury of the Class C felony of habitual felon. The failure to mark Box #5 on the judgment does not mean that defendant was not adjudged a habitual felon. Defendant was appropriately sentenced as a Class C felon. See N.C. Gen. Stat. § 14-7.6 (2001). This argument is overruled.
    In defendant's fifth assignment of error, he argues the trial court committed reversible error by failing to give an immediate limiting instruction after the admission of evidence pursuant to Rule 404(b). We disagree.
    During trial, the State presented evidence that defendant had committed a similar crime at Rack Room Shoes. Defendant requested a limiting instruction be given at the time of the testimony. Rule 105 of the North Carolina Rules of Evidence provides “[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” N.C. Gen. Stat. § 8C-1, Rule 105 (2001). The trial court declined to soinstruct the jury at the time the Rule 404(b) evidence was received and stated that the instruction would be given at the close of the case.
    Under Rule 404(b) of the North Carolina Rules of Evidence, evidence of other crimes is admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. N.C. Gen. Stat. § 8C- 1, Rule 404(b) (2001). These prior crimes are not admissible to show character. Id. Evidence admitted under Rule 404(b) for a specific purpose should be coupled with a limiting instruction if requested by the defendant. State v. Haskins, 104 N.C. App 675, 411 S.E.2d 376 (1991), rev. denied, 331 N.C. 287, 417 S.E.2d 256 (1992).
    In his instructions to the jury on the obtaining property by false pretenses charge, the trial judge instructed the jury as follows:
    Members of the jury, evidence has been received tending to show that a similar incident occurred February 11th, 1997 in a Rack Room Shoe Store. This evidence was received solely for the purpose of showing that the defendant had the intent, which is a necessary element of the crime charged in this case, and showing that there existed in the mind of the defendant a plan, scheme, system, or design involving the crime charged in this case. If you believe this evidence, you may consider it but only for the limited purpose for which it was received.
It was error for the trial court not to immediately give the limiting instruction as requested by defendant. However, because the trial court gave a correct limiting instruction in its charge to the jury, the error was not prejudicial. State v. Williams, 341 N.C. 1, 459 S.E.2d 208 (1995), cert. denied, 516 U.S. 1128, 133 L. Ed. 2d, 870 (1996).     
    By defendant's sixth assignment of error, he argues the trial court erred in failing to determine whether he should receive a mitigated or aggravated sentence, citing State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001). We disagree.
    Lucas discusses the sentence enhancement set forth in N.C. Gen. Stat. § 15A-1340.16A, where a defendant used, displayed or threatened the use of a firearm in the commission of certain felonies in light of the U.S. Supreme Court decisions in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000).
    Here, defendant argues that Lucas requires that before a judge can impose a sentence in the presumptive range, the judge must first find either: (1) there are no aggravating or mitigating factors present; or (2) the aggravating and mitigating factors counterbalance each other. Such a procedure is not mandated or even discussed in Lucas, nor is it found anywhere in Article 81B ofChapter 15A of the North Carolina General Statutes, which contains the statutes pertaining to the sentencing of persons convicted of crimes.
    The law of North Carolina is correctly stated in State v. Chavis, 141 N.C. App. 553, 568, 540 S.E.2d 404, 414 (2000), which provides that “[t]his Court has held the trial court is required to take 'into account factors in aggravation and mitigation only when deviating from the presumptive range in sentencing.'” (citing State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997) (emphasis in original). The decision to depart from the presumptive range of sentences rests in the discretion of the sentencing judge. N.C. Gen. Stat. § 15A-1340.16(a) (2002). In this case, defendant was sentenced as a habitual felon from the presumptive range of sentences. We find no abuse of discretion and overrule this assignment of error.
    In his seventh and eighth assignments of error, defendant argues that the imposition of a sentence of 150 to 189 months in prison for obtaining two pillows and a mattress pad by false pretenses constitutes cruel and unusual punishment and that the habitual felon act violates his due process right to be able to provide a defense. We disagree.
     Defendant presents these arguments for the first time on appeal. In State v. Hunter, 305 N.C. 106, 286 S.E.2d 535 (1982),our Supreme Court held “[t]he theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions. Further, a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.” Id. at 112, 286 S.E.2d at 539 (citing State v. Dorsett, 272 N.C. 227, 158 S.E. 2d 15 (1967)). As defendant did not rely on constitutional grounds at trial, we decline to address defendant's arguments now.
    In his assignments of error nine through twelve, defendant argues: (9) the habitual felon act does not comply with the separation of powers clause; (10) the habitual felon act does not comply with equal protection guarantees; (11) the combined use of structured sentencing and the habitual felon act creates a double jeopardy violation; and (12) he did not qualify as a habitual felon on the date of the latest offense. Defendant concedes that all of these issues have been decided contrary to his position. We therefore do not consider them further.
    NO PREJUDICIAL ERROR.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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