2. Sentencing--habitual felon--sufficient record of plea
The trial court did not err in a felonious operation of a motor vehicle to elude arrest and
resisting a public officer case by sentencing defendant as an habitual felon, because the trial
court established a sufficient record of defendant's plea on the habitual felon charge.
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Terri W. Sharp, for defendant appellant.
WYNN, Judge.
Ernest F. Davis, Defendant, appeals from his convictions of
felonious operation of a motor vehicle to elude arrest and
resisting a public officer, arguing the trial court erred by
denying his motion to dismiss and sentencing him as an habitual
felon. We discern no error by the trial court.
At trial, the State presented evidence tending to show the
following: In the early morning hours of 25 January 2002, Sergeant
Charles Chadwick of the Onslow County Sheriff's Department observedDefendant driving an automobile in the Sneeds Ferry area of Onslow
County. Sergeant Chadwick was acquainted with Defendant and knew
that his driver's license was revoked. Sergeant Chadwick activated
the blue lights and siren of his patrol vehicle and attempted to
follow Defendant. Defendant accelerated, and Sergeant Chadwick,
despite driving at a speed of sixty-five to seventy miles per hour,
did not catch up to him. The posted speed limits in the area
ranged from twenty-five to thirty-five miles per hour. According
to Sergeant Chadwick, Defendant sped at a rate “very much” in
excess of fifteen miles per hour over the speed limit. Sergeant
Chadwick also observed Defendant swerve into the opposing lane for
oncoming traffic. Defendant eventually turned into the driveway of
an occupied mobile home and slammed the brakes, causing the vehicle
to slide approximately twenty feet. Defendant then exited the
vehicle and ran into the woods.
Following presentation of the evidence, the jury found
Defendant guilty of felonious operation of a motor vehicle to elude
arrest, speeding in excess of fifteen miles per hour more than the
established speed limit, delaying a public officer in attempting to
discharge a duty of his office, and reckless driving. Defendant
admitted his status as an habitual felon. The trial court arrested
judgment on the charges of reckless driving to endanger and
speeding, and sentenced Defendant to a term of 93 to 121 months'
imprisonment for the felonious operation of a motor vehicle to
elude arrest conviction. The trial court entered a concurrent
sentence of thirty days for the conviction of resisting arrest. Defendant appealed.
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[1] Defendant has abandoned his first two assignments of error
on appeal. By his third assignment of error, Defendant contends
the trial court erred in denying his motion to dismiss the charge
of felonious operation of a motor vehicle to elude arrest and his
motion for judgment notwithstanding the verdict following
conviction. Defendant argues there was insufficient evidence from
which the jury could find that he sped in excess of fifteen miles
over the legal speed limit or drove recklessly. This argument has
no merit.
When ruling on a motion to dismiss, the trial court must
consider the evidence in the light most favorable to the State.
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
In considering a motion for dismissal, the trial court is to
determine whether there is substantial evidence “(a) of each
essential element of the offense charged, or of a lesser offense
included therein, and (b) of defendant's being the perpetrator of
the offense. If so, the motion to dismiss is properly denied.”
Id. at 65-66, 296 S.E.2d at 651-52. “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393
S.E.2d 781, 787 (1990). The State is entitled to all reasonable
inferences to be drawn from the evidence, and the trial court must
resolve any contradictions and discrepancies in favor of the State.
State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983). Defendant was convicted of felonious operation of a motor
vehicle to elude arrest under section 20-141.5
of the North
Carolina General Statutes, which provides in pertinent part that:
(a) It shall be unlawful for any person to
operate a motor vehicle on a street, highway,
or public vehicular area while fleeing or
attempting to elude a law enforcement officer
who is in the lawful performance of his
duties. Except as provided in subsection (b)
of this section, violation of this section
shall be a Class 1 misdemeanor.
(b) If two or more of the following
aggravating factors are present at the time
the violation occurs, violation of this
section shall be a Class H felony.
(1) Speeding in excess of 15 miles per hour
over the legal speed limit.
. . . .
(3) Reckless driving as proscribed by G.S.
20-140.
. . . .
(5) Driving when the person's drivers license
is revoked.
. . . .
N.C. Gen. Stat. § 20-141.5 (2003). Section 20-141.5 “seeks to
punish a single wrong: attempting to flee in a motor vehicle from
a law enforcement officer in the lawful performance of his duties.”
State v. Funchess, 141 N.C. App. 302, 309, 540 S.E.2d 435, 439
(2000). At a minimum, violation of the statute constitutes a Class
1 misdemeanor. N.C. Gen. Stat. § 20-141.5(a). Where at least two
of the eight aggravating factors set out in the statute are
present, however, the offense is a Class H felony. N.C. Gen. Stat.§ 20-141.5(b). “Although many of the enumerated aggravating
factors are in fact separate crimes under various provisions of our
General Statutes, they are not separate offenses . . . but are
merely alternate ways of enhancing the punishment for speeding to
elude arrest from a misdemeanor to a Class H felony.” Funchess,
141 N.C. App. at 309, 540 S.E.2d at 439.
Here, Defendant's conviction was based on the two aggravating
factors of speeding in excess of fifteen miles per hour over the
legal speed limit and reckless driving. Defendant argues the State
presented insufficient evidence in support of these factors. We
disagree. Sergeant Chadwick testified that he drove at a rate of
speed of sixty-five to seventy miles per hour, but was unable to
catch up to Defendant. The highest posted speed limit was only
thirty-five miles per hour. Moreover, Sergeant Chadwick stated
that Defendant was “very much” speeding in excess of fifteen miles
over the speed limit. Defendant asserts Sergeant Chadwick
exaggerated his testimony, in that the distance traveled by
Defendant and Sergeant Chadwick from the inception of the pursuit
to its finish was less than one and one-half miles. Further,
Defendant argues he would have lost control of his vehicle had he
been traveling at such high rates of speed. These arguments,
however, raise nothing more than potential discrepancies in the
evidence, the resolution of which was for the jury. We conclude
there was substantial evidence from which the jury could find that
Defendant sped in excess of fifteen miles over the posted speed
limit. There was moreover sufficient evidence that Defendant drove
recklessly.
North Carolina General Statutes section 20-140 defines
the offense of reckless driving as follows:
(a) Any person who drives any vehicle upon a
highway or any public vehicular area
carelessly and heedlessly in willful or wanton
disregard of the rights or safety of others
shall be guilty of reckless driving.
(b) Any person who drives any vehicle upon a
highway or any public vehicular area without
due caution and circumspection and at a speed
or in a manner so as to endanger or be likely
to endanger any person or property shall be
guilty of reckless driving.
N.C. Gen. Stat. § 20-140 (2003). The evidence tended to show that
Defendant drove at speeds well over the posted speed limit of
thirty-five miles per hour, and that he swerved into the opposing
lane of traffic at least once. At the conclusion of the chase,
Defendant braked his vehicle sharply and slid for approximately
twenty feet near an occupied residence. We conclude there was
sufficient evidence from which the jury could find Defendant guilty
of reckless driving, and we overrule Defendant's third assignment
of error.
[2] Finally, Defendant argues the trial court failed to
establish a proper record of a guilty plea to the status of being
an habitual felon. This argument has no merit. The record shows
that, after defense counsel informed the trial court that Defendant
admitted to his former convictions, the trial court personally
addressed Defendant and inquired whether he (1) understood he had
the right to remain silent; (2) understood the nature of the
habitual felon indictment and had discussed it with his attorney;(3) understood he had the right to deny the convictions and allow
a jury to determine the issue; (4) understood that by admitting the
convictions he gave up the right to have a jury determine whether
he had achieved habitual felon status; and (5) understood that he
could face a maximum punishment of 183 months in prison due to the
Class C habitual felon sentence enhancement. Defendant responded
affirmatively to each of these questions. The trial court found
that Defendant's admissions were “the informed choice of the
defendant made freely, voluntarily, and understandingly.”
Defendant argues the trial court's failure to ask him whether
he was pleading guilty to habitual felon status invalidates his
plea. An express admission of guilt by a defendant is not required
in order for a guilty plea to be valid, however. State v. Edwards,
150 N.C. App. 544, 549, 563 S.E.2d 288, 291 (2002). We conclude
the trial court established a sufficient record of Defendant's plea
on the habitual felon charge. See State v. Williams, 133 N.C. App.
326, 330-31, 515 S.E.2d 80, 83 (1999) (concluding that the trial
court established a sufficient record of the defendant's plea to
habitual felon status where the defendant stipulated to the status,
admitted the underlying felonies, understood she was waiving a jury
trial and that she would be sentenced as a Class C felon, and
stated she was proceeding voluntarily).
For the reasons stated herein, we conclude Defendant received
a fair trial, free from prejudicial error.
No error.
Judges McGEE and TYSON concur.
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