An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-304


Filed: 2 March 2004


v .                         Wayne County
                            Nos. 01 CRS 53601-02
ANTWAN YELVERTON                    01 CRS 12076-77

    Appeal by defendant from judgments entered 18 September 2002 by Judge Jerry Braswell in Superior Court, Wayne County. Heard in the Court of Appeals 27 January 2004.

    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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