NO. COA02-884
Appeal by defendant from judgments entered 9 April 2002 by
Judge A. Moses Massey in Stokes County Superior Court. Heard in
the Court of Appeals 12 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Elliot, for the State.
William D. Auman for defendant appellant.
TIMMONS-GOODSON, Judge.
Donald Westmoreland (“defendant”) was charged with felonious
breaking and entering and felonious larceny. By a separate bill of
indictment defendant was charged with attaining the status of
habitual felon. A jury found defendant guilty of all charges. The
trial court consolidated the felonious breaking and entering and
larceny convictions. Defendant was sentenced to 150 to 189 months'
imprisonment. In a separate judgment, the trial court sentenced
defendant to a consecutive sentence of 150 to 189 months'
imprisonment for being an habitual felon.
Upon appeal, this Court held that the trial court erred by
sentencing defendant in a separate judgment and commitment forbeing an habitual felon because being an habitual felon was a
status, not a crime. State v. Westmoreland, 148 N.C. App. 407, 560
S.E.2d 886 (2002). This Court vacated the judgment entered,
sentencing defendant for being an habitual felon and remanded the
case for resentencing. Id. At the resentencing hearing, the trial
court sentenced defendant to 150 to 189 months' imprisonment for
the breaking and entering conviction and a consecutive term of 121
to 155 months' imprisonment for the larceny conviction. Defendant
appeals.
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In his sole assignment of error, defendant challenges the
constitutionality of this State's Habitual Felons Act. Defendant
presents the following three issues: (1) whether the Habitual
Felons Act violates his right to be free from double jeopardy; (2)
whether the Habitual Felons Act violates his equal protection
rights; and (3) whether the Habitual Felons Act constitutes cruel
and unusual punishment.
Our appellate courts have previously held the procedures set
forth in the Habitual Felons Act comport with a criminal
defendant's federal and state constitutional guarantees.
State v.
Brown, 146 N.C. App. 299, 302, 552 S.E.2d 234, 236,
disc. review
denied, 354 N.C. 576, 559 S.E.2d 186 (2001) (finding that “the
Habitual Felons
Act used in conjunction with structured sentencing
did not violate the defendant's double jeopardy protections”);
State v. Brown, 146 N.C. App. 590, 591, 553 S.E.2d 428, 429 (2001)
(rejecting equal protection challenge to Moore County policy);
State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 31
(2000);
see also State v. Hodge, 112 N.C. App. 462, 468, 436 S.E.2d
251, 255 (1993)(upholding Habitual Felon Act against due process,
equal protection, and double jeopardy challenges).
State v.
Aldridge, 76 N.C. App. 638, 640, 334 S.E.2d 107, 108 (1985) (thirty
year sentence for possession of stolen goods as an habitual felon
did not constitute cruel and unusual punishment).
Defendant fails to allege facts suggesting an improper
application of the law by the trial court. Defendant was sentenced
within the applicable presumptive range for his offenses and
defendant “has failed to show an abuse of discretion, procedural
misconduct, unfairness, injustice, or conduct offensive to the
public sense of fair play.”
Hodge, 112 N.C. App. at 468, 436
S.E.2d at 255. Accordingly, we reject defendant's arguments and
conclude the trial court properly sentenced defendant.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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