Appeal by defendant from judgment entered 13 January 2003 by
Judge Knox V. Jenkins, Jr. in Johnston County Superior Court.
Heard in the Court of Appeals 25 February 2004.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Amar Majmundar, for the State.
Anne Bleyman for defendant-appellant.
HUNTER, Judge.
Terry Lee Holder (“defendant”) appeals a judgment finding him
guilty of selling cocaine and for being an habitual felon. We
affirm defendant's guilty plea for attaining the status of habitual
felon and remand for the reasons stated herein.
On 3 June 2002, defendant was indicted for possession with the
intent to sell and deliver cocaine and for the sale and delivery of
cocaine. On 8 July 2002, defendant was also indicted as an
habitual felon based on previous convictions for the following
offenses: (1) larceny on 12 January 1995 in Johnston County; (2)
possession of cocaine on 29 October 1998 in Johnston County; and
(3) financial identity fraud on 11 March 2002 in Wayne County. On
13 January 2003, pursuant to a negotiated plea agreement, defendantpled guilty to one count of selling cocaine, admitted to being an
habitual felon, and admitted to having violated the terms and
conditions of his probation regarding the financial identity fraud
conviction. The guilty plea, as summarized by the State, was based
on defendant having sold one-tenth of a gram of cocaine to a
confidential informant for thirty dollars on 2 April 2002.
Defendant's plea of guilty to one count of selling cocaine and
being an habitual felon was accepted by the trial court. A
judgment was entered thereon sentencing him to 80 to 105 months
imprisonment based on defendant having nine prior record points
(with a prior record level of IV) and the trial court finding one
factor in mitigation. In open court, the trial court also imposed
a concurrent sentence of eight to eleven months on defendant for
the probation violation. According to the record, however, no
judgment was ever entered thereon.
I.
Defendant argues that his habitual felon indictment was
defective because it was supported by a prior offense that was a
misdemeanor, not a felony. Specifically, defendant contends his
prior conviction for possession of cocaine was a misdemeanor and
cannot be considered a felony for habitual felon purposes despite
being listed as one by the State in the habitual felon indictment.
We disagree with defendant's argument based on our Supreme Court's
recent holding in
State v. Jones, 161 N.C. App. 60, 588 S.E.2d 5
(2003),
reversed ___ N.C. ___, ____ S.E. 2d ____ (No. 591PA03 filed
25 June 2004). In
Jones, the Supreme Court held:
Under N.C.G.S. . 90-95(d)(2), the phrase
“punishable as a Class I felony” does not
simply denote a sentencing classification, but
rather, dictates that a conviction for
possession of the substances listed therein,
including cocaine, is elevated to a felony
classification for all purposes.
Id. at ___, ___ S.E.2d at ___ (slip op. 8).
As established in
Jones, the defendant in the instant case was
convicted as a felon for his 1998 possession of cocaine. Thus, the
guilty plea based on the habitual felon indictment is affirmed.
II.
Defendant also assigns error to the trial court's calculation
of his prior record level. Defendant asserts the State's evidence
was insufficient to establish that he had nine prior record points
thereby resulting in him having a prior record level of IV.
At the onset, the State contends this assigned error should be
dismissed because defendant failed to object at the trial level to
the sufficiency of the evidence used to support his prior record
points. However, a defendant's right to appeal a trial court's
action is preserved if that action was contrary to a statutory
mandate and the defendant was prejudiced thereby, which is what
defendant contends in the present case.
See State v. Ashe, 314
N.C. 28, 39, 331 S.E.2d 652, 659 (1985).
See also N.C. Gen. Stat.
§ 15A-1444(a2)(1) (2003) (providing that a defendant who pleads
guilty to a felony is entitled to an appeal by right where the
sentence imposed results from an incorrect finding of his prior
record or conviction level). Section 15A-1340.14(f) of the North Carolina General Statutes
allows for proof of prior convictions to be made by stipulation of
the parties or any other method the trial court finds reliable.
See N.C. Gen. Stat. § 15A-1340.14(f) (2003);
State v. Hanton, 140
N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000). The State asserts
that the parties stipulated to defendant's prior record points
during the proceeding. Although our review of the trial transcript
does indicate several instances in which defendant stipulated to
his status as an habitual felon, there is no clear stipulation by
defendant to the other convictions listed on the prior record level
worksheet prepared by the State. We have previously held that “a
worksheet, prepared and submitted by the State, purporting to list
a defendant's prior convictions is, without more, insufficient to
satisfy the State's burden in establishing proof of prior
convictions.”
State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d
738, 742 (2002). The only evidence remotely establishing
additional proof of prior convictions was defense counsel's
statement that “[l]ooking at [defendant's] prior record level,
that's basically why he's in the situation he's in.” Yet, that
statement is insufficient to qualify as a stipulation under our
existing case law because it is not definitive and certain enough
to afford a basis for judicial decision.
State v. Mullican, 95
N.C. App. 27, 29, 381 S.E.2d 847, 848-49 (1989). Therefore,
defendant is entitled to a new sentencing hearing for a
determination of his prior record points and level.
III.
Next, defendant argues that (1) by having both the Habitual
Felon Act and the Structured Sentencing Law applied against him,
the trial court subjected him to double jeopardy; and (2) the
Habitual Felon Act violates his constitutional right to be free of
cruel and unusual punishment. We disagree. Defendant did not
raise these questions at trial as dictated by law and they are not
properly before us.
See State v. Benson, 323 N.C. 318, 322, 372
S.E.2d 517, 519 (1988);
State v. Mitchell, 317 N.C. 661, 670, 346
S.E.2d 458, 463 (1986). Likewise, as previously discussed, there
was no error in using his conviction of possession of cocaine as a
felony.
In addition, as defendant acknowledges, this Court has
previously opined that using the Habitual Felon Act and the
Structured Sentencing Law does not violate the double jeopardy
clause.
In
State v. Brown, 146 N.C. App. 299, 552 S.E.2d 234,
appeal
dismissed and disc. review denied, 354 N.C. 576, 559 S.E.2d 186
(2001),
cert. denied, 535 U.S. 1102, 152 L. Ed. 2d 1061 (2002),
this court recognized:
In reviewing the combined use of the
Habitual Felons Act and structured sentencing,
it is apparent our legislature anticipated
such an argument as the defendant is now
making. The statutory scheme of these
statutes ensures that a defendant's prior
convictions will not be used to simultaneously
enhance punishment. N.C. Gen. Stat. . 14-7.6
specifically prohibits the State from using
those prior “convictions used to establish a
person's status as an habitual felon” to
determine a defendant's prior record level for
structured sentencing. N.C. Gen. Stat. § 14-
7.6 (1999);
see also State v. Bethea, 122 N.C.App. 623, 626, 471 S.E.2d 430, 432 (1996).
Additionally, our Supreme Court, in
State v.
Todd addressed the constitutionality of this
State's Habitual Felons Act and found the law
to conform with the constitutional strictures
dealing with double jeopardy, cruel and
unusual punishment, and equal protection.
[State v.] Todd, 313 N.C. [110,] 117, 326
S.E.2d [249,] 253 [(1995)].
Brown, 146 N.C. App. at 301, 552 S.E.2d at 235.
Secondly, as defendant acknowledges, this Court in
State v.
Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997),
cert. denied, 354
N.C. 72, 553 S.E.2d 208 (2001), also ruled that the Habitual Felon
Act did not violate a defendant's constitutional rights to be free
of cruel and unusual punishment.
Mason, 126 N.C. App. at 321, 484
S.E.2d at 820. Therefore, defendant was not subject to double
jeopardy or cruel and unusual punishment.
IV.
Finally, defendant argues the trial court erred in sentencing
him for a probation violation for which no judgment was entered.
It is well established that judgment is not entered against a
defendant until it is “reduced to writing, signed by the judge, and
filed with the clerk of court.” N.C. Gen. Stat. § 1A-1, Rule 58
(2003).
See also State v. Gary, 132 N.C. App. 40, 42, 510 S.E.2d
387, 388 (1999). In the case
sub judice, the trial court sentenced
defendant in open court to eight to eleven months imprisonment for
his probation violation, but never reduced that sentence to a
written judgment. Due to that error, defendant requests that this
sentence be arrested and vacated. However, since defendant clearly
admitted to having violated the terms and conditions of hisprobation, we need only remand the case to the trial court to
reduce the judgment on this violation to writing.
In conclusion, we affirm defendant's guilty plea as to the
habitual felon indictment. Additionally, we remand the case to the
trial court (1) for a new sentencing hearing, and (2) to reduce the
judgment regarding his probation violation in writing.
Affirmed and remanded in part.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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