State v Clayton, (02-1554) 11/18/2003

Appeal by defendant from judgment entered 17 July 2002 by Judge Daniel R. Green in Catawba County Superior Court. Heard in the Court of Appeals 6 October 2003.

Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.

Jon W. Myers, for defendant-appellant.

GEER, Judge.

    A jury found defendant Rudy Vexter Clayton guilty of felony breaking or entering, felony larceny, and habitual felon status. Defendant does not challenge his conviction, but rather contends that the trial court erred in the course of sentencing him. After a review of the record, we find no error.
    The trial court consolidated defendant's two felony convictions for judgment and sentenced defendant as an habitual felon to a presumptive term of 132 to 168 months imprisonment. Defendant first claims that the trial court erroneously sentenced him for his habitual felon status rather than for his substantive felonies, noting that the upper right-hand corner of the judgment lists only the superior court file number for his habitual felonindictment, 02 CRS 005281. The body of the judgment as well as a review of the record, however, reveals that the trial court properly sentenced defendant for the underlying felonies. The fact that the court's file number in 02 CRS 005281 appears at the top of the judgment does not, in this case, establish otherwise.
    Defendant next challenges the State's use of his less serious prior felony convictions to confer habitual felon status, thereby reserving his more serious prior felonies to maximize his prior record level. Defendant did not raise this issue before the trial court and has not assigned plain error on appeal. See N.C.R. App. P. 10(b)(1), (c)(4). Defendant has, therefore, waived review of this issue. Nevertheless, we note that this Court has already rejected this argument. State v. Cates, 154 N.C. App. 737, 740, 573 S.E.2d 208, 210 (2002), disc. review denied, 356 N.C. 682, 577 S.E.2d 897 (2003).
    In his final argument, defendant contends that the trial court erred in failing to find certain mitigating factors at sentencing. This Court has already held that "where the trial court imposes sentences within the presumptive range for all offenses of which defendant was convicted, he is not obligated to make findings regarding aggravating and mitigating factors." State v. Rich, 132 N.C. App. 440, 452-53, 512 S.E.2d 441, 450 (1999), aff'd on other grounds, 351 N.C. 386, 527 S.E.2d 299 (2000).
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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