An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1676


Filed: 7 October 2003

                                Robeson County
         v.                        Nos. 97 CRS 23688
                                    97 CRS 23689
MARK LOCKLEAR,                            97 CRS 23690

    Appeal by defendant from judgment entered 9 October 2001 by Judge Jack A. Thompson in Robeson County Superior Court. Heard in the Court of Appeals 25 August 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Daniel F. McLawhorn, for the State.

    Cunningham Dedmond Petersen & Smith, L.L.P., by Bruce T. Cunningham, Jr., for defendant-appellant.

    GEER, Judge.

    The sole issue presented by this appeal is whether a sentence of life imprisonment without parole constitutes cruel and unusual punishment for first degree murder based on felony murder when the jury found that defendant did not himself kill or intend to kill the victim. Because we hold, based on State v. Dunlap, 298 N.C. 725, 259 S.E.2d 893 (1979), that it was not cruel and unusual punishment, we find no error.
    Woodrow Blue was stabbed to death while being robbed by defendant Mark Locklear and Dennis Roy Oxendine. Oxendine entered into a plea agreement with the State and pled guilty to second degree murder and robbery with a dangerous weapon. As part of thatagreement, he testified for the State at defendant's capital murder trial. At trial, Oxendine claimed that defendant had stabbed Blue multiple times.
    After the guilt-innocence phase of the trial, the jury found defendant guilty of first degree murder based on felony murder. The jury specifically did not find defendant guilty of premeditation and deliberation.
    During the sentencing phase, the jury answered "no" to the following question: "Do you unanimously find from the evidence, beyond a reasonable doubt, that the defendant himself: Killed or attempted to kill the victim; OR Intended to kill the victim; OR Intended that deadly force would be used in the course of the underlying Felony; OR Was a major participant in the underlying felony and exhibited reckless indifference to human life?" In other words, it appears that the jury did not believe Oxendine's version of the facts and found that defendant, although guilty of felony murder, did not kill or intend to kill Blue and did not intend that deadly force be used during the robbery of Blue.
    The jury nevertheless recommended that defendant be sentenced to life imprisonment. The trial court entered judgment for life imprisonment without parole. Defendant appealed from that judgment.
    The sentence mandated for a conviction of first degree murder is either death or life imprisonment without parole. N.C. Gen. Stat. § 14-17 (2001). Defendant argues that his sentence of life imprisonment without parole violates his rights to due process andequal protection and to be free from cruel and unusual punishment as guaranteed by the Eighth and Fourteenth Amendments of the United States Constitution. We disagree.
    In Dunlap, our Supreme Court addressed the defendant's argument that a sentence of life imprisonment without benefit of parole _ imposed as required by statute _ based on a conviction for robbery with a firearm constituted a denial of equal protection and cruel and unusual punishment. In holding that the sentence was constitutional, the Court held that "where a sentence is within the maximum authorized by law, the sentence is not cruel and unusual punishment." 298 N.C. at 735, 259 S.E.2d at 898. As for the equal protection claim, the Court noted that "[i]t is the province of the General Assembly, not ours, to prescribe this special punishment for this validly selected class of crimes." Id. at 736, 259 S.E.2d at 899.
    If a life sentence without possibility of parole is a constitutional sentence for armed robbery not resulting in murder, it is a constitutional sentence for a felony murder conviction arising out of an armed robbery. See also State v. Streeter, 146 N.C. App. 594, 599, 553 S.E.2d 240, 243 (2001) ("Our Supreme Court has found that as long as the judge sentences within the limits established by the legislature, the Eighth Amendment is not offended."), cert. denied, 356 N.C. 312, 571 S.E.2d 211 (2002), cert. denied, U.S. , 154 L. Ed. 2d 1071 (2003).
    This assignment of error is overruled. Since defendant does not contest any other aspect of his trial, we find no error.
    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***