An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-729


Filed: 1 June 2004


         v.                        Rutherford County
                                Nos. 01 CRS 51686,
STEVEN EDGAR SPENCER,                    02 CRS 1360    

    Appeal by defendant from judgment entered 7 January 2003 by Judge Zoro J. Guice, Jr., in Rutherford County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Deborrah L. Newton, for the State.

    Haakon Thorsen for defendant-appellant.

    ELMORE, Judge.

    On 1 April 2002, defendant was indicted for possession of marijuana on the premises of a penal institution. Defendant had been found in possession of a tenth of a gram of marijuana while an inmate at the Rutherford Correctional Center. Defendant was also indicted as an habitual felon. The case was tried at the 6 January 2003 Criminal Session of Rutherford County Superior Court. On 7 January 2003, defendant was found guilty by a jury of possession of marijuana on the premises of a penal institution and of attaining the status of an habitual felon and was sentenced to a term of 168 to 211 months imprisonment. Defendant appeals.
    Defendant's sole argument is that the trial court erred insentencing him as an habitual felon because the sentence violated the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution.
    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 of over fourteen years was “grossly disproportionate” to the crime of possessing a tenth of a gram of marijuana. 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 the case sub judice, the sentence in the presumptive range for defendant's conviction of possession of marijuana on the premises of a penal institution in violation of N.C. Gen. Stat. § 09-95(e)(9), a Class H felony, without consideration of the Habitual Felon Act, is a minimum of 16-20 months to a maximum of 20-24 months, given defendant's prior record level of VI, the highest level. See N.C. Gen. Stat. § 15A-1340.17. Under the North Carolina Habitual Felon Act, defendant's sentence is a Class C felony. The presumptive range for his convictions is a minimum of 135-168 months to a maximum of 171-211 months, given his prior record level of VI. In Clifton, this Court found that an identical enhanced punishment based on defendant's status as an habitualfelon was “not so 'grossly disproportionate' as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.” Clifton, 158 N.C. App. at 96, 580 S.E.2d at 46. Accordingly, based on Clifton, we affirm.         Affirmed.    
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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