An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-885


Filed: 6 May 2003


    v.                            Jones County
                                Nos.    00 CRS 050515
JAMES EDWARD BENEFIELD, SR.                01 CRS 001110-11

    Appeal by defendant from judgment dated 25 March 2002 by Judge Carl L. Tilghman in Jones County Superior Court. Heard in the Court of Appeals 16 April 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas R. Miller, for the State.

    Samuel S. Popkin for defendant appellant.

    BRYANT, Judge.

    James Edward Benefield, Sr. (defendant) appeals a judgment dated 25 March 2002 entered consistent with his plea of guilty to second-degree murder and two counts of assault with a deadly weapon inflicting serious injury   (See footnote 1)  and sentencing him within the aggravated range.
    The State's factual summary at the sentencing hearing, stipulated to by defendant, tended to show that on 25 November 2000, defendant drove a borrowed pickup truck across the center line of State Highway 58 when he collided with a passing vehicle,killing Willie Hall and severely wounding Jackie and Claudia Hall. Witnesses at the scene observed defendant as appearing impaired, and unopened beer cans were found near the pickup truck. The police obtained a search warrant to test the blood drawn from defendant at the hospital to which he was taken after the accident. The analysis of the sample revealed a blood alcohol content of .101. At the time of the accident, defendant had five prior convictions for driving while impaired, his driver's license had been permanently revoked, and he was uninsured.


    The issues are whether: (I) defendant preserved for appeal the question whether the trial court erred in determining his prior record level and (II) defendant can challenge the trial court's findings of certain aggravating factors.

    Defendant first claims the trial court erred in assigning him a prior record level of II. Defendant, however, stipulated to the convictions listed on his prior record worksheet and offered no objection to either the State's calculation of his prior record level or the trial court's finding thereof. See N.C.R. App. P. 10(b)(1) (“[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion”). Moreover, defendant's assignments of error in the record on appeal make no reference to his prior record level, see N.C.R. App. P. 10(a), and defendant neither assigned nor argued plain error on appeal, see N.C.R. App. P. 10(c)(4). Therefore, this issue was not preserved for appellate review and is not properly before this Court. See State v. Diehl, 353 N.C. 433, 438, 545 S.E.2d 185, 188-89 (2001); State v. Flippen, 349 N.C. 264, 276, 506 S.E.2d 702, 709-10 (1998).

    Defendant also challenges the trial court's finding of the following aggravating factors: (1) that his offenses involved “damage causing great monetary loss” and (2) that he “knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.” See N.C.G.S. § § 15A-1340.16(d)(8), (14) (2001). “Defendant, however, did not object to these findings during the sentencing hearing. This issue, therefore, is not properly before this Court.” State v. Kimble, 141 N.C. App. 144, 147, 539 S.E.2d 342, 345 (2000). Because defendant's remaining assignments of error are either expressly waived or not addressed in his brief to this Court, they are deemed abandoned. See N.C.R. App. P. 28(b)(6).
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    Defendant did not move to withdraw his guilty plea or file a motion for relief with the trial court.

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