An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1425

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2003

STATE OF NORTH CAROLINA

         v.                        Forsyth County
                                Nos.    97 CRS 32039, 39666
JOHN HOUSE, JR.
    

    Appeal by defendant from judgment entered 12 February 1998 by Judge Julius A. Rousseau, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 26 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General M. Janette Soles, for the State.

    John T. Hall, for defendant-appellant.

    CALABRIA, Judge.

    A jury convicted defendant of felony breaking and entering in 97 CRS 32039. In exchange for the State's agreement not to present evidence of aggravating factors, defendant pled guilty to habitual felon status in 97 CRS 39666. The trial court sentenced him in the presumptive range to 116 to 149 months of imprisonment. On 21 February 2002, this Court issued a writ of certiorari to review the judgment. In light of defendant's guilty plea in 97 CRS 39666, our order provided that “[a]ppellate review in file number 97 CRS 39666 is . . . limited to those issues that could have been raised on direct appeal pursuant to G.S. 15A-1444(a1) and (a2).”    On appeal, defendant does not challenge his conviction for breaking and entering in 97 CRS 32039, but claims that the State failed to adduce sufficient evidence to support a finding of habitual felon status in 97 CRS 39666. He also contends that the court committed plain error in sentencing him as an habitual felon, because (1) the indictment in 97 CRS 39666 lacks a superior court file number, (2) his signed transcript of plea contains no file number or attachment describing the charge to which he pled guilty, and (3) the State's evidence was insufficient to support the guilty plea.
    A defendant may plead guilty to habitual felon status as though it were a substantive offense. See State v. Williams, 133 N.C. App. 326, 330, 515 S.E.2d 80, 83 (1999); N.C. Gen. Stat. § 14- 7.5 (2001). The appeal of right from such a guilty plea is limited to the issues prescribed by N.C. Gen. Stat. § 15A-1444(a1) and (a2). In granting certiorari in this case, we expressly restricted our review of defendant's guilty plea in 97 CRS 39666 to those issues upon which he had a statutory appeal of right. Therefore, in accordance with our order, our review of defendant's plea to habitual felon status is limited to the following: (1) whether the evidence supported a departure from the presumptive sentencing range; (2) whether defendant's prior record level was miscalculated; and (3) whether the type and length of sentence imposed was authorized for defendant's class of offense and prior record level. N.C. Gen. Stat. § 15A-1444(a1), (a2)(1)-(3) (2001).     We find no error within the scope of defendant's appeal. Because the trial court sentenced defendant within the presumptive range, defendant had no grounds for appeal under N.C. Gen. Stat. § 15A-1444(a1). Defendant stipulated to a Prior Record Level of III at sentencing and does not challenge his Prior Record Level on appeal. Finally, N.C. Gen. Stat. § 15A-1340.17(c), (e) (2001) authorized an active prison term of 116 to 149 as punishment for a Class C felon with a Prior Record Level III. See N.C. Gen. Stat. § 14-7.6 (2001) (punishing felonies committed by an habitual felon as Class C).
    Although outside the purview of N.C. Gen. Stat. § 15A-1444(a1) and (a2), a defendant may challenge a jurisdictional defect in an indictment at any time. See State v. King, 353 N.C. 457, 467, 546 S.E.2d 575, 585 (2001) (citing State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 437 (2000)), cert. denied, 534 U.S. 1147, 151 L. Ed. 2d 1002 (2002); State v. Brown, 21 N.C. App. 87, 88, 202 S.E.2d 798, 798 (1974). Here, however, the absence of a file number in the caption of the habitual felon indictment is not a fatal defect depriving the trial court of jurisdiction. See State v. Davis, 225 N.C. 117, 119, 33 S.E.2d 623, 624 (1945). Moreover, the habitual felon indictment in 97 CRS 39666 properly identified defendant's three prior felony convictions in all pertinent respects as follows:
        1. That on the 5th day of June 1989, the defendant was convicted of the felony offense of Breaking and Entering and Larceny in Forsyth County Superior Court, said act being committed against the sovereign State of North Carolina on January 20, 1989 (89 CRS 5764);
        2. That on the 18th day of April 1991, the defendant was convicted of the felony offense of Breaking and Entering in Forsyth County Superior Court, said act being committed against the sovereign State of North Carolina on March 13, 1991 (91 CRS 11524); [and]

        3. That on the 4th day of April 1994, the defendant was convicted of the felony offense of Breaking and Entering in Forsyth County Superior Court, said act being committed against the sovereign State of North Carolina on February 4, 1994 (94CRS4323).
See N.C. Gen. Stat. §§ 14-7.1, 14-7.3 (2001). It further alleged defendant's commission of the predicate felony on 22 August 1997. See State v. Briggs, 137 N.C. App. 125, 130, 526 S.E.2d 678, 681 (2000). Defendant's jurisdictional argument is without merit.
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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