An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-74

NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2004

STATE OF NORTH CAROLINA

v .                         Durham County
                            No. 97 CRS 27856,
                             97 CRS 30112,
                             98 CRS 23026    
HENRY MARSHALL BAILEY
            Defendant.

    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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