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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. STEPHEN MCILWAINE
Filed: 5 April 2005
1. Sentencing--habitual felon--sufficiency of indictment--notice
An habitual felon indictment was not defective because it alleged that one of the prior felony
convictions was for possession with intent to manufacture, sell or deliver a Schedule I controlled
substance in violation of N.C.G.S. § 90-95 without specifically naming the controlled substance.
2. Sentencing--prior record level--State's failure to meet burden of proof
The trial court erred by sentencing defendant as an habitual felon where the State failed to
meet its burden of proving defendant's prior record level and defendant is entitled to a new
sentencing hearing, because: (1) N.C.G.S. § 15A-1340.14(f) requires the State to prove a felony
offender's prior convictions by a preponderance of the evidence and 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 of establishing proof of prior convictions; (2) even though defendant
did not disagree with statements made by the prosecutor or the trial court as to his prior convictions,
defendant did not clearly stipulate to his prior convictions and the State provided no other proof of
prior convictions; and (3) although the trial court misstated defendant's prior record level as VI
both in open court and in his written judgment, the sentence imposed was actually a record level IV
and within the presumptive range, and this clerical error should be corrected on remand.
3. Constitutional Law--Habitual Felon Act--separation of powers--double jeopardy--cruel
and unusual punishment
Although defendant raises three constitutional issues on appeal including that the trial court
committed plain error by sentencing him as an habitual felon when it violates the separation of
powers clause, it subjects him to double jeopardy, and it constitutes cruel and unusual punishment,
these assignments of error are dismissed because: (1) defendant failed to raise these issues at trial;
(2) our Court of Appeals has previously held the Habitual Felon Act is not violative of the
Separation of Powers Clause; (3) our Court of Appeals has previously held that there is no double
jeopardy infirmity inherent in the Habitual Felon Act as applied in conjunction with the Structured
Sentencing Act; and (4) both our Court of Appeals and Supreme Court have rejected constitutional
challenges to the Habitual Felon Act based on allegations of cruel and unusual punishment.
Appeal by defendant from a judgment filed 12 August 2003 by
Judge Yvonne M. Evans in Mecklenburg County Superior Court. Heard
in the Court of Appeals 21 October 2004. Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery, for the State.
Attorney James N. Freeman, Jr. for defendant-appellant.
Stephen McIlwaine (defendant) appeals a judgment filed 12
August 2003 sentencing him to 107 to 138 months imprisonment for
felonious failure to appear enhanced by habitual felon status.
On 19 February 2003, defendant, after appearing for trial on
charges including felony possession with intent to sell or deliver
cocaine, left the courtroom after a pretrial motion was denied and
never returned. The trial court issued an order for arrest and on
24 June 2003, defendant was indicted for failure to appear on a
felony. Defendant had previously been indicted for habitual felon
The case came for trial on 11 August 2003 in Mecklenburg
County Superior Court, the Honorable Yvonne M. Evans presiding.
Following presentation of evidence a jury found defendant guilty of
felonious failure to appear. After the presentation of additional
evidence, the jury found defendant had attained habitual felon
status. Defendant appeals.
The issues to be considered on appeal are whether the trial
court erred by: (I) sentencing defendant as an habitual felonbased on a defective indictment, (II) sentencing defendant to 107
to 138 months imprisonment where the State failed to prove
defendant's prior record level, and (III) sentencing defendant as
an habitual felon in violation of certain constitutional
 Defendant first argues the trial court was without
jurisdiction to sentence him as an habitual felon
habitual felon indictment was defective on its face.
An habitual felon is [a]ny person who has been convicted of
or pled guilty to three felony offenses in any federal court or
[S]tate court in the United States . . . . N.C. Gen. Stat. § 14-
7.1 (2003). N.C.G.S. § 14-7.3 requires the State to allege all
the elements of the offense of being a[n] habitual felon thereby
providing a defendant with sufficient notice that he is being tried
as a recidivist to enable him to prepare an adequate defense to
that charge. State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862,
864 (1995). A[n] habitual felon indictment is not required to
specifically refer to the predicate substantive felony. Id. at
727, 453 S.E.2d
In this case, the habitual felon indictment alleged that
defendant had been
previously convicted of three felonies including
the felony of possession with intent to manufacture, sell ordeliver [S]chedule I controlled substance, in violation of N.C.G.S.
[.] 90-95. Defendant contends that because the specific name of
the controlled substance was not alleged in the indictment, the
indictment was not sufficient to charge habitual felon. We
The habitual felon indictment clearly alleged defendant had
three prior felony convictions. See State v. Briggs, 137 N.C.
App. 125, 130-31, 526 S.E.2d 678, 681-82 (2000) (holding habitual
felon indictment was sufficient where it alleged the defendant had
a prior conviction for felony breaking and entering buildings in
violation of N.C. Gen. Stat. § 14-54 (1999)[,] even though it did
not allege the felony which the defendant intended to commit when
he broke and entered). In the case sub judice, the habitual felon
indictment alleging a prior conviction for felony possession with
intent to manufacture, sell, or deliver a Schedule I controlled
substance, in addition to two other felony convictions, was
sufficient notice under our statutory and case law. Moreover,
because there was no defect in the indictment, the trial court had
jurisdiction to sentence defendant as an habitual felon. This
assignment of error is overruled.
 Defendant next argues the trial court erred in sentencing
him because the State failed to meet its burden of proving
defendant's prior record level.
N.C. Gen. Stat. § 15A-1340.14(f) requires the State to prove
a felony offender's prior convictions by preponderance of the
evidence. The methods the State may use to prove prior
and prior record level are:
(1) Stipulation of the parties.
(2) An original or copy of the court record
of the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
N.C.G.S. § 15A-1340.14(f) (2003)
During sentencing, the State bears the burden of proving
defendant's prior convictions by a preponderance of the evidence.
State v. Bartley, 156 N.C. App. 490, 501, 577 S.E.2d 319, 326
(2003). Those prior convictions can be proved in several ways,
including by [s]tipulation of the parties and by [a]ny other
method found by the court to be reliable. See N.C.G.S. § 15A-
1340.14(f) (2003). [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). A statement by the State that an
offender has . . . points, and thus is a [certain] record level,
. . . if only supported by a prior record level worksheet, is not
sufficient to meet the catchall provision found in N.C.G.S. §
15A-1340.14(f)(4), even if uncontested by defendant. State v.
Riley, 159 N.C. App. 546, 557, 583 S.E.2d 379, 387 (2003)
State v. Mack, 87 N.C. App. 24, 34, 359 S.E.2d 485, 491 (1987));
see State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383
After the jury returned guilty verdicts in this case, the
trial court proceeded to sentencing:
THE COURT: [Prosecutor], anything you would
like to say about sentencing?
[PROSECUTOR]: Your Honor, [defense counsel]
and I _ actually the last time [defendant] was
going to possibly plead, so we did discuss
what the sentence would be, the level, if he
was convicted of Habitual Felon Status. We
found that, and I'll hand up the [worksheet].
May I approach?
THE COURT: Um-hmm.
[PROSECUTOR]: We looked it over, and the ones
that I've checked off on the left, left side,
those were the ones that were used in theHabitual Felon Indictment. The rest of the
charges are the ones we would be using for the
sentencing on the C Level. That would make
him C, Level IV, after our discussions about
the cases, and what the points that we [use]
as evidence to those individual cases.
THE COURT: Okay.
[PROSECUTOR]: Like I said, a C Level IV, I
don't have any argument as
to the low end of
the presumptive or the high end. I would ask
the Court to hold him to the presumptive
THE COURT: Okay. [defense counsel].
[DEFENSE COUNSEL]: And Your Honor, the only
thing I would say on behalf of [defendant], is
that I would ask you to sentence him to the
low end of the presumptive. That's still a lot
of time for this charge.
The trial court then stated:
THE COURT: All right. In case number 2003-
CRS-39291, the defendant, Stephen McIlwaine,
had been convicted by the jury of the Class I
Felony of Failure to Appear on Felony Charge.
With respect to that, he has 20 points, and is
a Prior Record Level VI. In case number 2002-
CRS-78785, he's been found to have the status
of Habitual Felon by the jury. And the [c]ourt
adjudges him to be an Habitual Felon, and to
be sentenced as a Class C felon. I will
sentence him in the presumptive range to a
minimum of 107 and maximum of 138 months in
the custody of the Department of Corrections.
During sentencing the trial court misstated defendant's prior
record level as VI both in open court and in his writtenjudgment. However, the sentence imposed
, 107 to 138 months, was
actually a record level IV and within the presumptive range. This
amounts to a clerical error that should be corrected on remand.
See State v. Brooks, 148 N.C. App. 191, 195, 557 S.E.2d 195, 197-98
(2001) (remand to trial court for correction of clerical error in
Also during the sentencing hearing, the prosecutor made an
unchallenged statement that he and defendant's counsel had
discussed defendant's prior convictions and prior record level.
After stating defendant had a prior record level IV based on the
worksheet, the prosecutor informed the trial court the State was
requesting a presumptive sentence within prior record level IV. In
response, the defendant's attorney sought to have the trial court
sentence defendant to the low end of the presumptive range. The
State urges that counsel's statement under these circumstances can
reasonably be construed as an admission by defendant of a prior
record level IV. Were nothing else appearing we might agree with
the State's assertion. However, our sentencing statute has been
interpreted quite narrowly and our courts have consistently granted
new sentencing hearings under facts similar to those in the instant
case. See State v. Jeffrey, 167 N.C. App. 575, 605 S.E.2d 672
; State v. Spellman, 167 N.C. App. 374, 605 S.E.2d 696
(2004); State v. Riley, 159 N.C. App. 546, 583 S.E.2d 379 (2003);State v. Bartley, 156 N.C. App. 490, 577 S.E.2d 319 (2003). Even
though defendant did not disagree with statements made by the
prosecutor or the trial court as to his prior convictions,
defendant did not clearly stipulate to his prior convictions and
the State provided no other proof of prior convictions. Jeffrey,
167 N.C. App. at 582, 605 S.E.2d at 676 (holding the defendant was
entitled to new sentencing hearing
since the State only introduced
the defendant's worksheet without other evidence and the defendant
did not stipulate to a prior record level). An unsupported
statement by the State that an offender has [a certain record
level] even if uncontested, does not rise to the level sufficient
to meet [the requirements of the statute]. Riley, 159 N.C. App. at
557, 583 S.E.2d at 387.
Therefore the State failed to meet its burden of proving
defendant's prior record level, and
defendant is entitled to a new
 In defendant's remaining assignments of error, he raises
three constitutional issues, none of which were raised at trial.
Defendant argues the trial court committed plain error in
sentencing him as an habitual felon because: (1) it violates the
separation of powers clause, (2) it subjects him to double jeopardy
and (3) it constitutes cruel and unusual punishment. [A] constitutional question which is not raised and passed
upon in the trial court will not ordinarily be considered on
appeal. State v. Benson
, 323 N.C. 318, 322, 372, S.E.2d 517, 519
(1988) (quotations omitted). Defendant admits he raises these
issues for preservation purposes. Nevertheless, we note that this
Court has previously held the Habitual Felon Act is not violative
of the Separation of Powers Clause. See State v. Williams
N.C. App. 795, 802, 561 S.E.2d 925, 929 (2002) (rejecting
separation of powers argument). As for double jeopardy defendant
acknowledges this Court has held there is no double jeopardy
infirmity inherent in the Habitual Felon Act as applied in
conjunction with the Structured Sentencing Act. See State v.
, 146 N.C. App. 299, 302, 552 S.E.2d 234, 236, (2001) (holding
the Habitual Felons Act used in conjunction with structured
sentencing [does] not violate . . . double jeopardy protections).
Finally, both this Court and our Supreme Court have rejected
constitutional challenges to the Habitual Felon Act based on
allegations of cruel and unusual punishment. See State. v. Todd
313 N.C. 110, 118-19, 326 S.E.2d 249, 253-55 (1985); State v.
, 159 N.C. App. 284, 298, 583 S.E.2d 606, 615, disc. rev.
, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied
, --- U.S.
---, 158 L. Ed. 2d 382 (2004). Defendant's arguments are without
No error at trial. Remand for new sentencing hearing.
Judges TYSON and LEVINSON concur.
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