STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 97 CRS 32039, 39666
JOHN HOUSE, JR.
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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