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after opinion filed on 31 December 2002 was withdrawn and the case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
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.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***