An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-524


Filed: 3 August 2004


v .                                 Johnston County
                                    Nos. 02CRS006247
TERRY LEE HOLDER                            02CRS054284

    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.


    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.

    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.
    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.

    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).

*** Converted from WordPerfect ***