An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA02-572


Filed: 20 May 2003


    v.                            Alamance County
                                Nos. 00 CRS 20150-51

    Appeal by defendant from judgment entered 14 November 2001 by Judge Russell G. Walker, Jr. in Alamance County Superior Court. Originally heard in the North Carolina Court of Appeals on 30 December 2002. Reheard by the North Carolina Court of Appeals after opinion filed on 31 December 2002 was withdrawn and the case was reassigned to this panel by order dated 9 January 2003 of Chief Judge of the North Carolina Court of Appeals.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.

    Paul M. Green for defendant appellant.


    Dennis Ralph Bennett (“defendant”) appeals from his convictions of possessing cocaine with the intent to sell and deliver, selling and delivering cocaine, and attaining the status of habitual felon. For the reasons stated herein, we conclude that the trial court did not err.
    Following the jury verdict, defendant pled guilty to his status as a habitual felon. The trial court arrested judgment on the conviction of delivering cocaine. The remaining convictionswere consolidated, and defendant was sentenced to a minimum term of 145 months and a maximum term of 183 months.


    The sole issue on appeal is whether the trial court erred in accepting defendant's plea to habitual felon status without the existence of a factual basis for the plea.
    We first note that defendant has no right to appeal this issue because he failed to move to withdraw his plea of guilty to habitual felon status in the trial court. State v. Young, 120 N.C. App. 456, 459, 462 S.E.2d 683, 685 (1995). However, we treat the record and brief as a petition for a writ of certiorari and elect to grant review of the issue. Id. Here, the habitual felon indictment charged that defendant had three prior convictions of possession of cocaine. Defendant argues that the underlying convictions were misdemeanor convictions rather than felony convictions. Therefore, defendant contends that the trial court erred in sentencing him as a habitual felon. We disagree.
    Although North Carolina General Statutes § 90-95(d)(2) provides that possession of certain classes of controlled substances constitutes a misdemeanor, the statute also contains an express proviso that if the substance is cocaine, possession of it is “punishable as a Class I felony.” N.C. Gen. Stat. § 90-95(d)(2) (2001). This Court has also held that possession of any amount of cocaine is a felony under section 90-95(d)(2). State v. Chavis, 134 N.C. App. 546, 555, 518 S.E.2d 241, 248 (1999). Therefore, the trial court properly accepted the plea and sentenced defendant asa habitual felon.
    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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