An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1151


Filed: 20 May 2003


         v.                        Johnston County
                                Nos. 01CRS12592
DARRIEL CLAYTON WILLIAMS                    01CRS58193        

    Appeal by defendant from judgment entered 8 April 2002 by Judge Wiley F. Bowen in Johnston County Superior Court. Heard in the Court of Appeals 5 May 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Charles J. Murray, for the State.

    Paul M. Green for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals from his convictions of two counts of possession with intent to sell and deliver cocaine, two counts of sale of cocaine, and of having attained the status of being an habitual felon.
    The State's evidence tended to show that defendant sold cocaine to an undercover officer on 16 August 2001 and 22 September 2001. Defendant was indicted by the Johnston County grand jury on 29 October 2001 of two counts of possession with intent to sell and deliver cocaine and two counts of sale of cocaine. The grand jury also charged defendant on 29 October 2001 in a separate indictment with having attained the status of being an habitual felon.    The habitual felon indictment listed three prior felonies. All three of defendant's prior felonies were guilty pleas entered in Johnston County Superior Court for selling cocaine. The conviction for the first prior felony was entered on 27 February 1992, the second on 27 June 1994, and the third on 18 February 1997. The indictment also contained the offense dates for each felony and further stated the offenses were committed against the State of North Carolina.
    A jury found defendant guilty of the four substantive offenses and of being an habitual felon. The trial court consolidated the convictions for judgment and sentenced defendant as an habitual felon to a term of 133 to 169 months' imprisonment.
    Defendant first contends that the trial court sentenced him as an habitual felon upon a fatally defective indictment. Defendant argues that the language of the indictment did not charge that he had attained the status of habitual felon based upon three previous convictions. Instead, he argues that the language charges that he became an habitual felon at the time of the commission of the underlying substantive felony, making the habitual felon indictment defective. We disagree.
    In order for an habitual felon indictment to be proper, it must be separate from the indictment for the principal underlying felony. N.C. Gen. Stat. § 14-7.3 (2001). In addition, the indictment must set forth the dates that the three prior felonies were committed, the state or government against which the felonies were committed, the dates of convictions or guilty pleas for thefelonies presented, and the courts where the convictions or guilty pleas took place. Id. The indictment in the present case conforms to these statutory requirements, providing the offense dates, dates of guilty pleas, the court where the guilty pleas took place, and the government against which the offenses were committed for each of defendant's three prior eligible felonies. Therefore, the language of the indictment properly charges defendant with having attained the status of an habitual felon rather than with the nonexistent substantive crime of becoming an habitual felon. We conclude that the indictment was proper, and this assignment of error is overruled.
    Defendant's second argument is that the habitual felon statute is unconstitutional on its face and as applied. Defendant argues that the habitual felon statute gives prosecutors a wide range of discretion in determining which defendants receive enhanced sentences and that the use of this discretion varies widely among prosecutors and prosecutorial districts. He contends that this discretion violates various constitutional guarantees, including equal protection and due process.
    Previous claims raised as to the constitutionality of the habitual felon statute have been rejected. In State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985), the North Carolina Supreme Court held that the North Carolina General Assembly was “within constitutionally permissible bounds in enacting legislation designed to identify habitual criminals and to authorize enhanced punishment . . . .” Id. at 118, 326 S.E.2d at 253. Our SupremeCourt has also held that the procedures set forth in the habitual felon statute satisfied federal and state constitutional requirements. Id. In addition, this Court has held that prosecutorial discretion, including determining which defendants to prosecute as habitual felons, “'does not reach constitutional proportion unless there be a showing that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'” State v. Parks, 146 N.C. App. 568, 571, 553 S.E.2d 695, 697 (2001) (quoting State v. Wilson, 139 N.C. App. 544, 550, 533 S.E.2d 865, 870 (2000)), appeal dismissed and disc. review denied, 355 N.C. 220, 560 S.E.2d 355, cert. denied, ___ U.S. ___, 154 L. Ed. 2d 49 (2002).
    We are bound by previous decisions upholding prosecutorial discretion in prosecution of habitual felons and clearly rejecting constitutional challenges to the habitual felon statute. We therefore conclude that the habitual felon statute is constitutional on its face and as applied. In light of our foregoing conclusions, we hold the trial court's judgment was free from prejudicial error.
    No error.
    Judges MARTIN and CALABRIA concur.
    Report per Rule 30(e).

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