Appeal by defendant from judgment entered 14 January 1999 by
Judge David Q. LaBarre in Durham County Superior Court. Heard in
the Court of Appeals 17 November 2003.
Roy A. Cooper, III, Attorney General, by William M. Polk,
Director of Victims and Citizens Services, N.C. Department of
Justice, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
MARTIN, Judge.
In case 97 CRS 27856, defendant was charged in a true bill of
indictment with felonious breaking and entering, felonious larceny,
and felonious possession of stolen goods, allegedly occurring on 21
September 1997. In case 97 CRS 30112, defendant was charged in a
true bill of indictment with felonious breaking and entering,
felonious larceny, and felonious possession of stolen goods,
allegedly occurring on 21 August 1997. In case 98 CRS 23026,
defendant was charged with being an habitual felon. The indictment
alleged that he had been convicted on 3 November 1994 of felonious
breaking or entering which occurred 4 August 1994; that he had beenconvicted on 17 November 1995 of felonious possession of a
counterfeit controlled substance with intent to create, sell or
deliver which occurred on 8 August 1995; and that he had been
convicted on 8 May 1996 of felonious breaking or entering which
occurred on 25 January 1996, all in the superior court of Durham
County.
On 22 September 1998, defendant pled guilty to the counts of
felonious breaking and entering and felonious larceny contained in
97 CRS 27856 and 97 CRS 30112. The transcript of plea indicated
that the State would dismiss the two counts of possession of stolen
goods, the four felonies to which defendant pled guilty would be
consolidated for one judgment, and prayer for judgment would be
continued until a motion for appropriate relief filed by defendant
had been addressed by the court. Although neither defendant nor
the State has sought to include the motion for appropriate relief
in the record on appeal in this case, it is apparent from the
transcript of the proceedings that defendant sought by the motion
to invalidate his 17 November 1995 conviction of possession of a
counterfeit controlled substance with intent to create, sell or
deliver on grounds of alleged irregularities in his plea of guilty
to that offense. It is also apparent from the transcript that the
motion for appropriate relief was subsequently heard by the trial
court and was denied.
The bill of indictment alleging defendant was an habitual
felon was called for trial on 13 January 1999. Defendant made a
pretrial oral motion to quash the habitual felon indictment on thesame grounds as alleged in the motion for appropriate relief. The
motion was denied. The State then offered evidence through the
testimony of Angela Kelly, a deputy clerk of Superior Court of
Durham County, and through court records, that defendant had been
convicted of each of the offenses alleged in the habitual felon
indictment. The jury returned a verdict finding defendant “Guilty
of having the Status of Habitual Felon.” Judgment was entered upon
the verdict consolidating the four underlying felonies for judgment
and sentencing defendant as an habitual felon to imprisonment for
a minimum term of 133 months and a maximum term of 169 months.
Defendant gave notice of appeal in open court on 14 January 1999;
the record does not disclose the reason for delay in the filing of
appeal entries and appointment of appellate counsel until 23
October 2002. The record on appeal was filed in this Court on 17
January 2003.
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Defendant brings forward three assignments of error relating
to the trial court's instructions in response to a jury question,
its ruling preventing defendant from asking certain questions of
Ms. Kelly on cross-examination, and the sentence imposed. His
remaining assignment of error is deemed abandoned. N.C. R. App. P.
28(a).
During its deliberations, the jurors returned to the courtroom
with three written questions:
1. How is a felony conviction reached, jury
trial, plead guilty? Are these the only two
ways?
2. Which of the documents in State's [Exhibit]
Number 2 is proof of a conviction of a felony?
3. Which of the two means were used for number
two?
In response, the court stated,
inter alia:
I will say to you that all court documents are
valid and presumed to be valid unless
otherwise shown. That is, a court document is
a legal document and it speaks for itself.
And the only way it can be challenged is by
appeal and by a higher court setting it aside
or some trial court granting some motion
setting that document aside. And so you
should accept that document, that judgmental
document, as proof of what is contained
therein. And you should determine _ make your
own determination as to what it does contain.
Defendant argues that his constitutional right to due process of
law was violated by this jury instruction because the trial court
effectively shifted the burden of proof as to an essential element
of the crime to the defendant. After careful review, we find no
error in the trial court's response.
The Due Process Clause of the Fourteenth Amendment to the
United States Constitution “prohibits the use of evidentiary
presumptions in a jury charge that have the effect of relieving the
State of its burden of persuasion beyond a reasonable doubt of
every essential element of a crime.”
State v. Locklear, 331 N.C.
239, 244, 415 S.E.2d 726, 729 (1992). In this case, in order to
prove defendant had attained the status of an habitual felon, the
State was required to prove that defendant had been convicted of,
or pled guilty to, felony offenses in any state or federal court in
the United States on at least three occasions since 6 July 1967 andthat each of the offenses was committed after defendant had been
convicted of the one before it. N.C. Gen. Stat. § 14-7.1 (2003).
A conviction or plea of guilty to a felony offense under the
habitual felon statute may be proved by submitting to the jury an
original or certified copy of a final judgment “bearing the same
name as that by which the defendant is charged.”
N.C. Gen. Stat.
§ 14-7.4 (2003). Under North Carolina law, such records are
presumed valid, unless evidence to the contrary is readily
available or the presumption is otherwise rebutted by the
defendant.
State v. Bass, 133 N.C. App. 646, 649-50, 516 S.E.2d
156, 158-159 (1999);
State v. Atkinson, 39 N.C. App. 575, 579, 251
S.E.2d 677, 681 (1979). In
Parke v. Raley, 506 U.S. 20 (1992), the
United States Supreme Court held that imposition of such a
“presumption of regularity” for final judgments in a recidivist
criminal trial does not impermissibly shift the burden of proof to
the defendant or run afoul of the Due Process Clause, absent a
compelling circumstance.
Id. at 29-30. Defendant presented no
evidence in this case to show that the court records presented by
the State were not valid or to rebut the presumption of regularity.
Defendant argues to the contrary, however, pointing out that
he presented evidence that showed that the transcript of plea
associated with his 17 November 1995 conviction of possession of a
counterfeit controlled substance with intent to create, sell or
deliver was not contained in the court file for that case. This
irregularity, he argues, supports his claims that his plea was not
knowing and voluntary, and that he was rendered ineffectiveassistance of counsel when he entered the plea. These arguments,
however, amount to collateral attacks on the prior conviction, and
thus, are not admissible at trial.
See N.C. Gen. Stat. § 15A-1027
(2003);
State v. Creason, 123 N.C. App. 495, 500, 473 S.E.2d 771,
773 (1996),
affirmed, 346 N.C. 165, 484 S.E.2d 525 (1997)
; State v.
Stafford, 114 N.C. App. 101, 103-04, 440 S.E.2d 846, 847,
disc.
review denied, 336 N.C. 614, 447 S.E.2d 410 (1994) (defendant is
not permitted to collaterally attack the validity of prior DWI
convictions at a habitual impaired driving trial).
Consequently, defendant's argument that the trial court erred
when it instructed the jury that the only way the validity of a
court document could be challenged is through appeal or by some
court setting the document aside is also without merit since our
courts have repeatedly held that the only permissible way to
challenge the validity of a final judgment is through direct
attack.
See Masters v. Dunstan, 256 N.C. 520, 523-24, 124 S.E.2d
574, 576 (1962);
Creason, 123 N.C. App. at 500, 473 S.E.2d at 773.
Thus, the only issue for the jury in this case was “whether the
defendant who has just been convicted of the underlying substantive
felony is the same person as the individual the State alleges” has
three prior felony convictions since 6 July 1967.
State v. Safrit,
145 N.C. App. 541, 553, 551 S.E.2d 516, 524 (2001) (applying
identical provisions in the violent habitual felon statute).
Defendant directly attacked the foregoing conviction, upon the same
grounds as argued in this appeal, in his motion for appropriate
relief, which was heard and denied by the trial court prior todefendant's trial upon the habitual felon indictment. Moreover, he
moved to quash the habitual felon indictment upon the very same
grounds, and has not assigned error to the denial of that motion.
We accordingly overrule defendant's assignment of error directed to
the trial court's response to the jurors' questions.
Next, defendant argues the trial court erred when it sustained
two objections by the State to defendant's attempt to cross-examine
Angela Kelly regarding the existence of a transcript of plea form
in the court file which records his charge and conviction for
possession of a counterfeit controlled substance with intent to
create, sell or deliver. We likewise find no merit in this
argument because, as discussed above, evidence challenging the
validity of a final judgment may be presented only pursuant to a
direct attack upon the conviction and not collaterally in an
habitual felon proceeding.
See Creason, 123 N.C. App. at 500, 473
S.E.2d at 773
; Stafford, 114 N.C. App. at 103-04, 440 S.E.2d at
847
. The existence or nonexistence of the transcript of plea form
in the court file was simply not relevant and the trial court did
not err when it sustained the State's objections.
See N.C. Gen.
Stat. § 8C-1, Rule 402 (only relevant evidence is admissible).
By his final assignment of error, defendant argues that his
sentence should be vacated because it exceeds the express terms of
his plea agreement regarding the underlying substantive felonies.
The plea agreement provided that the four substantive felonies to
which defendant pled guilty would be consolidated for one judgment
and that the maximum punishment to which defendant would be exposedfor any one of the four offenses was 30 months. The plea
agreement, however, did not apply to the case in which defendant
was convicted of having attained habitual felon status, to which
defendant retained his right to plead not guilty. Upon defendant's
being found guilty of having attained habitual felon status, the
trial court sentenced defendant as a habitual felon, imposing an
enhanced sentence for the substantive felonies in the presumptive
Class C range for a minimum of 133 months and a maximum of 169
months incarceration. Defendant argues that this enhanced sentence
violates the plea agreement. We disagree.
Plea agreements which are accepted and approved by the trial
court are enforceable against the State by the defendant.
State v.
Collins, 300 N.C. 142, 148, 265 S.E.2d 172, 176 (1980);
see also
N.C. Gen. §§ 15A-1021
et seq. (2003). Traditional principles of
contract law apply to the interpretation of such plea agreements.
Collins, 300 N.C. at 148, 265 S.E.2d at 176. A reasonable
interpretation of the plea agreement in this case reveals that it
was not violated when the trial court sentenced defendant as a
Class C felon in the presumptive range. The plea agreement
referenced only the four Class H felonies to which defendant pled
guilty, and sentencing for those substantive felonies was withheld
until resolution of defendant's motion for appropriate relief
seeking to invalidate one of the convictions alleged in the
habitual felon indictment. Given that defendant expressly reserved
and exercised his right to plead not guilty and proceed to trial on
the habitual felon indictment, it is clear that this plea agreementwas enforceable only as to defendant's conviction for the four
substantive Class H felonies, and not as to his conviction of
having attained the status of habitual felon. Indeed, G.S. § 14-
7.5 makes clear that if defendant is acquitted of having attained
habitual felon status, “the trial judge shall pronounce judgment on
the principal felony or felonies as provided by law.” N.C. Gen.
Stat. § 14-7.5 (2003). Once defendant was convicted of having
attained the status of habitual felon, the trial court was required
by statute to sentence defendant as a Class C felon. N.C. Gen.
Stat. § 14-7.6 (2003).
Moreover, defendant has not moved to set aside his pleas of
guilty to any of the four underlying substantive offenses.
A
guilty plea to an underlying substantive felony may be vitiated
where defendant is not given notice, prior to entering the plea,
that he is being prosecuted as a recidivist.
State v. Allen, 292
N.C. 431, 436, 233 S.E.2d 585, 588 (1977)
;
State v. Oakes, 113 N.C.
App. 332, 338-39, 438 S.E.2d 477, 480-81,
disc. review denied, 336
N.C. 76, 445 S.E.2d 43 (1994). In this case, defendant had been
indicted as an habitual felon prior to entering his pleas, thus he
had notice that the State intended to prosecute him as a
recidivist.
State v. Little, 126 N.C. App. 262, 269, 484 S.E.2d
835, 839 (1997).
We find no error in defendant's trial, nor in the sentence
imposed.
No error.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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