STATE OF NORTH CAROLINA
v
.
Wayne County
Nos. 01 CRS 53601-02
ANTWAN YELVERTON 01 CRS 12076-77
Attorney General Roy Cooper, by Assistant Attorney General
Mary Penny Thompson, for the State.
Jeffrey Evan Noecker for defendant appellant.
WYNN, Judge.
In this appeal, Defendant, Antwan Yelverton, contends the
trial court erred by: (I) failing to dismiss the charge of assault
with a deadly weapon with intent to kill inflicting serious injury
because of insufficient evidence; (II) sentencing him as an
habitual felon; and (III) imposing separate sentences for his
convictions of attempted murder and assault with a deadly weapon
with intent to kill inflicting serious injury. After careful
review, we find no error in the judgments of the trial court.
The evidence at trial tended to show the following: On 24 May
2001, Defendant shot Marcus Coleman in the chest during a drive-by
shooting. Mr. Coleman was a passenger in a second vehicle at the
time of the incident. Defendant testified that he acted in self-defense, in that he believed Mr. Coleman was armed and intended to
shoot him. Mr. Coleman was hospitalized approximately one week for
treatment of the bullet wound to his chest.
At the close of the evidence, the jury found Defendant guilty
of attempted first degree murder, assault with a deadly weapon with
intent to kill inflicting serious injury, four counts of
discharging a weapon into occupied property, and possession of a
firearm by a convicted felon. Following the verdict, Defendant
entered a plea of guilty as to his habitual felon status. The
trial court sentenced Defendant in the presumptive range for each
conviction, resulting in a minimum term of imprisonment of 225
months and maximum term of 279 months for the attempted murder
conviction, and a minimum term of 115 months and a maximum term of
147 months for the conviction of assault with a deadly weapon with
intent to kill inflicting serious injury. The trial court
consolidated the four convictions of discharging a weapon into
occupied property and imposed a concurrent sentence of 85 months
minimum, 111 months maximum. Finally, the trial court sentenced
Defendant to a minimum term of imprisonment of thirteen months and
a maximum term of sixteen months for his conviction of possession
of a firearm by a convicted felon. Defendant appealed.
_____________________________________________________
By his first assignment of error, Defendant argues the trial
court erred in denying his motion to dismiss the charge of assault
with a deadly weapon with intent to kill inflicting serious injury.
Specifically, Defendant contends there was insufficient evidencethat Mr. Coleman suffered serious injury as a result of the
assault. We disagree.
“Upon a defendant's motion to dismiss, the court must consider
whether the State has presented substantial evidence of each
essential element of the crime charged.” State v. Alexander, 152
N.C. App. 701, 705, 568 S.E.2d 317, 319 (2002). Substantial
evidence is such “relevant evidence that a reasonable mind might
accept as sufficient to support a conclusion.” State v. Allen, 346
N.C. 731, 739, 488 S.E.2d 188, 192 (1997). The trial court is
required to view the evidence in the light most favorable to the
State, and the State is entitled to all reasonable inferences to be
drawn therefrom. See id.
“Any person who assaults another person with a deadly weapon
with intent to kill and inflicts serious injury shall be punished
as a Class C felon.” N.C. Gen. Stat. § 14-32(a) (2003). The term
“inflicts serious injury,” as used in section 14-32(a), means
“physical or bodily injury resulting from an assault with a deadly
weapon.” State v. Joyner, 295 N.C. 55, 65, 243 S.E.2d 367, 373
(1978); State v. Hensley, 90 N.C. App. 245, 248, 368 S.E.2d 208,
210 (1988). “The injury must be serious but it must fall short of
causing death.” Joyner, 295 N.C. at 65, 243 S.E.2d at 373-74.
Whether a serious injury has been inflicted is a factual
determination within the province of the jury. State v. Hedgepeth,
330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991). Relevant factors in
determining whether serious injury has been inflicted include, but
are not limited to: (1) pain and suffering; (2) loss of blood; (3)hospitalization; and (4) time lost from work. Id. Evidence that
the victim was hospitalized, however, is not necessary for proof of
serious injury. Joyner, 295 N.C. at 65, 243 S.E.2d at 374.
In the instant case, the evidence established that Mr. Coleman
sustained a gunshot wound to the upper left side of his chest. The
bullet entered Mr. Coleman's chest approximately two inches above
the nipple line, in the area of the heart and lungs, but did not
exit. Mr. Coleman remained hospitalized for one week as a result
of his injury. We conclude that the State presented substantial
evidence of the serious nature of Mr. Coleman's injury, and we
therefore overrule this assignment of error. See Hedgepeth, 330
N.C. at 55, 409 S.E.2d at 319 (holding that reasonable minds could
not differ as to the seriousness of the victim's physical injuries
where the victim required emergency treatment for a gunshot wound
to her ear and powder burns and lacerations on her head and hand).
By his second assignment of error, Defendant asserts the trial
court failed to comply with section 15A-1022 of the General
Statutes in accepting Defendant's guilty plea to habitual felon
status, in that the trial court did not specifically inform
Defendant of (1) his right to remain silent; (2) the maximum
possible sentence and the mandatory minimum sentence; and (3) the
possible consequences of pleas for non-U.S. citizens. Defendant
contends the trial court's failure to abide by the statutory
mandates rendered Defendant's plea ineffective, as it was neither
knowing nor voluntary. We disagree.
Section 15A-1022 provides in pertinent part that Except in the case of corporations or in
misdemeanor cases in which there is a waiver
of appearance under G.S. 15A-1011(a)(3), a
superior court judge may not accept a plea of
guilty or no contest from the defendant
without first addressing him personally and
(1) Informing him that he has a right to
remain silent and that any statement he makes
may be used against him;
. . . .
(6) Informing him of the maximum possible
sentence on the charge for the class of
offense for which the defendant is being
sentenced, including that possible from
consecutive sentences, and of the mandatory
minimum sentence, if any, on the charge; and
(7) Informing him that if he is not a citizen
of the United States of America, a plea of
guilty or no contest may result in
deportation, the exclusion from admission to
this country, or the denial of naturalization
under federal law.
N.C. Gen. Stat. § 15A-1022(a) (2003).
In order for a defendant's plea to be made voluntarily,
intelligently and understandingly, the defendant must be made aware
of all “direct consequences” of his plea. State v. McNeill, 158
N.C. App. 96, 103, 580 S.E.2d 27, 31 (2003). “Direct consequences”
are those having a “'definite, immediate and largely automatic
effect on the range of the defendant's punishment.'” State v.
Smith, 352 N.C. 531, 551, 532 S.E.2d 773, 786 (2000) (quoting
Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366
(4th Cir.), cert. denied, 414 U.S. 1005, 38 L. Ed. 2d 241 (1973));
State v. Williams, 133 N.C. App. 326, 331, 515 S.E.2d 80, 83
(1999). “This definition, however, should not be applied in a
technical, ritualistic manner.” Williams, 133 N.C. App. at 331,515 S.E.2d at 83. Further, “[e]ven when a violation occurs, there
must be prejudice before a plea will be set aside.” McNeill, 158
N.C. App. at 103, 580 S.E.2d at 31. In examining prejudicial
error, courts must “look to the totality of the circumstances and
determine whether non-compliance with the statute either affected
defendant's decision to plead or undermined the plea's validity.”
State v. Hendricks, 138 N.C. App. 668, 670, 531 S.E.2d 896, 898
(2000).
In Williams, this Court held that the trial court's failure to
inform the defendant of the minimum and maximum sentence for a
Class C offender did not invalidate the guilty plea. There, the
defendant indicated she understood that as a consequence of being
an habitual felon she would be sentenced as a Class C felon as
opposed to a Class G felon. See id. at 331, 515 S.E.2d at 83. The
defendant further stated she had committed each of the felonies
listed on the habitual felon indictment and admitted she was
proceeding voluntarily and without the inducement of deals or
threats. This Court upheld the trial court's determination that
the defendant was aware of the direct consequences of her plea, and
that such plea was knowing and voluntary. See id.
In the present case, the trial court personally addressed
Defendant after he entered a plea of guilty to the habitual felon
charge. Defendant indicated he had reviewed the habitual felon
indictment and had committed each of the three felonies listed
therein. Defendant twice indicated he understood the nature of the
habitual felon status and its enhancement of punishment, and that,by pleading guilty to habitual felon status, he would be sentenced
as a Class C felon for his convictions. Subsequent to Defendant's
guilty plea, the State requested enhancement only of the four
counts of discharging a weapon into occupied property. In support
thereof, the State submitted a document signed by Defendant
indicating that he had been advised of the maximum punishment for
those four Class E felonies that were enhanced to Class C felonies
under the habitual felon plea.
We conclude that the record indicates evidence sufficient to
show that Defendant was aware of the direct consequences of his
plea. Moreover, Defendant failed to show prejudice arising from
the trial court's violation of section 15A-1022. Although the
trial court accepted Defendant's plea without informing him of his
right to remain silent or the mandatory minimum sentence, there is
nothing to indicate that these omissions had any effect on
Defendant's decision to plead guilty to habitual felon status.
Finally, Defendant does not contend nor does the record
support that he is a non-U.S. citizen. The trial court's failure
to inform him of the possible consequences of a guilty plea for
non-U.S. citizens could not therefore have resulted in prejudice to
Defendant. We overrule Defendant's second assignment of error.
In his final argument, Defendant contends the trial court
subjected him to double jeopardy by sentencing him to separate
terms of imprisonment for attempted murder and assault with a
deadly weapon with intent to kill inflicting serious injury based
on the same act or transaction. “Conviction for two separateoffenses stemming from one incident is not a violation of a
defendant's constitutional rights where each offense requires proof
of at least one element that the other does not.” State v.
Peoples, 141 N.C. App. 115, 119, 539 S.E.2d 25, 29 (2000). This
Court has previously held that the offenses of attempted first
degree murder and assault with a deadly weapon with intent to kill
inflicting serious injury each require proof of at least one
element which the other does not. State v. Ramirez, 156 N.C. App.
249, 259, 576 S.E.2d 714, 721, disc. review denied, 357 N.C. 255,
583 S.E.2d 286, cert. denied, __ U.S. __, 157 L. Ed. 2d 388 (2003);
Peoples, 141 N.C. App. at 119-20, 539 S.E.2d at 29. Defendant
acknowledges the holdings in Ramirez and Peoples, but asserts that
the cases were incorrectly decided. We are, however, bound by such
precedent, see State v. Sellers, 155 N.C. App. 51, 56 574 S.E.2d
101, 105 (2002), and therefore overrule Defendant's final
assignment of error.
For the reasons stated herein, we conclude Defendant received
a fair trial, free from prejudicial error.
No error.
Judges McGEE and TYSON concur.
Report per Rule 30(e).
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