An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-884


Filed: 3 June 2003



         v.                        Stokes County
                                Nos. 99 CRS 4651
DONALD WESTMORELAND                     00 CRS 274

    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.


     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.


    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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