An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-695


Filed: 1 June 2004


         v.                        Mecklenburg County
                                Nos. 01 CRS 35525
CHARLES WAYNE JAMISON,                    02 CRS 49879    

    Appeal by defendant from judgment entered 4 February 2003 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.

    Daniel F. Read for defendant-appellant.

    ELMORE, Judge.

    On 14 August 2001, defendant was arrested for stealing a lawn mower worth $1,000.00. On 8 July 2002, defendant was indicted for felonious larceny. On 22 July 2002, defendant was indicted for being an habitual felon. On 4 February 2003, defendant pled guilty pursuant to a plea agreement to felony larceny and attaining the status of an habitual felon. Pursuant to the plea agreement, defendant received a sentence from the mitigated range of punishment of 84 to 110 months imprisonment. Defendant appeals.
    Defendant's sole argument on appeal is that his sentence was in violation of the Eighth Amendment and constituted cruel and unusual punishment. Specifically, defendant contends that theimposition of a sentence of 7 to 9 years imprisonment is grossly disproportionate to the nonviolent and minor offense of stealing a lawnmower when the felonies underlying the habitual felon indictment occurred 9 to 20 years prior to the substantive offense.
    After careful review of the record, briefs, and contentions of the parties, we affirm. N.C. Gen. Stat. §§ 14-7.1 to 7.6 provide that a person who has three prior felony convictions may be sentenced as an habitual felon. Defendant contends that here, however, his sentence as an habitual felon was “grossly disproportionate” because the habitual felon indictment was based on past convictions that were old, including one that was over 20 years old. We disagree. This Court has stated that “'[o]nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.'” State v. Clifton, 158 N.C. App. 88, 94, 580 S.E.2d 40, 45 (2003)(citations omitted). In State v. Hensley, 156 N.C. App. 634, 638, 577 S.E.2d 417, 421, disc. review denied, 357 N.C. 167, 581 S.E.2d 64 (2003), this Court rejected a similar argument as the one made by the defendant in this case. The defendant in Hensley argued that “relying on a nineteen-year-old conviction as a predicate for habitual felon status results in an unconstitutional infliction of cruel and unusual punishment.” Id. at 638, 577 S.E.2d at 421. This Court disagreed, stating that:
        North Carolina General Statute § 14-7.4 does not contain a provision disallowing the use ofpast felonies due to any time limitation based on conviction date. Other statutes for habitual convictions have provisions limiting the use of older convictions. See, e.g., N.C. Gen. Stat. § 20-138.5 (having a provision precluding use of convictions seven years or older for habitual DWI convictions). “[T]he expression of one thing is the exclusion of another.” The General Assembly enacted provisions limiting the use of older convictions only in certain classes of habitual offense statutes. In the case of the Habitual Felon Act, the General Assembly did not include that provision, nor will we read one into the statute.

Hensley, 156 N.C. App. at 638, 577 S.E.2d at 421 (citation omitted). Accordingly, based on Hensley, we affirm.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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