An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1084


Filed: 3 August 2004


v .                         Wake County
                            No. 02 CRS 50491

    Appeal by defendant from judgment entered 10 October 2002 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 20 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State.

    Duncan B. McCormick for defendant.

    LEVINSON, Judge.

    Defendant appeals from conviction and judgment for being an habitual felon and from judgment for larceny. We find no error.
    Defendant was indicted for felony larceny in violation of N.C.G.S. § 14-72 for the 12 June 2002 taking of sixty-eight DVD movies and one plastic tote from the K-Mart in Garner, North Carolina. Defendant was also indicted as an habitual felon for having been convicted of and sentenced for the following three offenses: (1) larceny committed on 1 April 1991, for which judgment was imposed on 16 March 1992, (2) breaking and entering on 19 August 1992, for which judgment was imposed on 31 March 1993, and (3) breaking into a coin operated machine on 27 June 2001, for which judgment was imposed on 27 August 2001. Following a trial,a Wake County jury found defendant guilty of the larceny and of being an habitual felon. The trial judge made findings that defendant had taken responsibility for his criminal conduct such that a mitigated sentence was justified and proceeded to sentence defendant for the larceny as an habitual felon. The trial court imposed a mitigated sentence of 100 to 129 months imprisonment. Defendant appeals.
    In his primary argument on appeal, defendant contends that the trial court lacked jurisdiction to try, convict, and sentence him as an habitual felon because the habitual felon indictment alleged that defendant was previously convicted of breaking into a coin operated machine, which defendant contends is a misdemeanor rather than a felony. This is so, defendant asserts, because N.C.G.S. § 14-56.1 (2003) provides that breaking into a coin operated machine is a Class 1 misdemeanor, and that if “[a] person has previously been convicted of [breaking into a coin operated machine], [he] shall be punished as a Class I felon.” (emphasis added). According to defendant, breaking into a coin operated machine remains a misdemeanor, though it may be punished as a felony when certain conditions are met.
    In making this argument, defendant relies heavily on this Court's decision in State v. Jones, 161 N.C. App. 60, 588 S.E.2d 5 (2003), rev'd, __ N.C. __, __S.E.2d __ (2004). In Jones, this Court held that, where the General Statutes define cocaine as a misdemeanor that is “punishable as a Class I felony,” possession of cocaine was a misdemeanor and could not form the basis of anhabitual felon indictment. However, our Supreme Court recently reversed Jones, and in so doing held that the General Assembly's use of the phrase “'punishable as a Class I felony' . . . does not simply denote a sentencing classification, but rather, dictates that a conviction . . . is elevated to a felony classification for all purposes.” State v. Jones, __ N.C. __, __, __S.E.2d __, __ (filed 25 June 2004). We conclude that the Supreme Court's interpretation of the phrase “punishable as a Class I felony” in Jones controls the outcome of the present case. This assignment of error is overruled.
    In his second argument on appeal, defendant contends that the trial court committed plain error by not instructing the jury that, to convict defendant of being an habitual felon, it had to find that he was convicted of the breaking and entering contained in the particular file number that was listed in his habitual felon indictment. The trial court instructed the jury that for defendant to be guilty of being an habitual felon, the State had to prove that “on March 31, 1993, the defendant in Wake County Superior Court pled guilty to the felony of breaking and entering that was committed on August 19, 1992 . . . .” Defendant insists that the trial court's failure to include the file number in the jury instructions was plain error because (1) the judgment, which was introduced into evidence at trial, showed that defendant pled guilty to four counts of breaking and entering on 31 March 1993, (2) at least one of these counts was in a different file number, and (3) the clerk testified that defendant had pled guilty to fourcounts of breaking and entering on 31 March 1993 and that the dates of these offenses were between 19 August and 22 November 1992. However, even assuming arguendo that the trial court's instruction was erroneous, we are unpersuaded that it is “a fundamental error, something so basic, so prejudicial that justice cannot have been done” or that “this [alleged] instructional mistake had a probable impact on the jury's finding that the defendant was guilty.” See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations omitted). As such, defendant has not demonstrated plain error with respect to this issue. This assignment of error is overruled.
    In his third argument on appeal, defendant contends that the trial court erred by finding that defendant had a Level V prior record level because the court included two points for a 31 March 1993 felony breaking and entering conviction that was consolidated for judgment with the breaking and entering conviction listed in defendant's habitual felon indictment. The trial court found that defendant had eighteen prior record level points. Pursuant to N.C.G.S. § 15A-1340.14(c) (2003), a defendant is to be sentenced at a Level V prior record level where he has “[a]t least 15, but not more than 18 points.” Thus, even assuming arguendo that two points were erroneously added for the challenged breaking and entering conviction, defendant would still have sixteen points and would still be at a Level V prior record level for sentencing purposes. This Court has held that the improper inclusion of points for sentencing purposes is harmless where it does not affect the priorrecord level at which a defendant is sentenced. See State v. Smith, 139 N.C. App. 209, 219-20, 533 S.E.2d 518, 524 (2000). This assignment of error is overruled.
    In his sixth argument on appeal, defendant contends that his sentence of 100 to 129 months imprisonment is grossly disproportionate to the offense of felony larceny such that the sentence constitutes cruel and unusual punishment in violation of the Federal Constitution. However, our Supreme Court has noted 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. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983), and this Court has recognized that “[h]abitual felon laws have withstood scrutiny under the Eighth Amendment to the United States Constitution in our Supreme Court and in the United States Supreme Court.” State v. Cates, 154 N.C. App. 737, 741, 573 S.E.2d 208, 210 (2002), disc. review denied, 356 N.C. 682, 577 S.E.2d 897-98, cert. denied, __ U.S. __, 157 L. Ed. 2d 84 (2003) (citations omitted). As such the trial court did not err in sentencing defendant in accordance with our habitual felon statute. This assignment of error is overruled.
    We have reviewed defendant's remaining assignments of error and find them to be without merit. They are, therefore, overruled.
    No error.
    Judges McCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

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