1. Appeal and Error_-appealability--nolo contendere plea_-no motion to withdraw
plea--failure to petition for writ of certiorari
Defendant's appeal in a possession of cocaine case of those assignments of error not
related to the sentence imposed at trial are dismissed, because: (1) a defendant who has entered a
plea of nolo contendere is not entitled to appellate review as a matter of right unless defendant is
appealing sentencing issues or the denial of a motion to suppress, or defendant has made an
unsuccessful motion to withdraw the no contest plea; (2) defendant has not made a motion to
withdraw the no contest plea; and (3) as to appeal of other issues, defendant must petition the
Court of Appeals for review by writ of certiorari which defendant failed to do.
2. Sentencing--prior record level--failure to prove prior convictions
The trial court erred in a possession of cocaine case by sentencing defendant as a prior
record level III offender based on prior convictions which were not proven at trial, and the
judgment is vacated and remanded to the superior court for resentencing.
3. Sentencing--habitual felon_-constitutionality
Defendant's habitual felon sentence is constitutional and does not violate the Eighth
Amendment prohibition against cruel and unusual punishment, because: (1) our habitual felon
statute is the result of a deliberate policy choice by the legislature that those who repeatedly
commit felonious criminal offenses should be segregated from the rest of society for an extended
period of time; and (2) nothing in the Eighth Amendment prohibits our legislature from
enhancing punishment for habitual offenders.
Attorney General Roy Cooper, by Special Deputy Attorney
General William P. Hart, for the State.
Anne Bleyman for the defendant-appellant.
TIMMONS-GOODSON, Judge.
Wilbert Donnell Quick (“defendant”) appeals his convictions of
possession of cocaine and attaining habitual felon status. For thereasons stated herein, we dismiss the appeal in part, vacate
defendant's habitual felon sentence and remand this case for
resentencing.
The State's evidence presented at trial tends to show the
following: On or around 1 January 2003, police officers in
Raleigh, North Carolina, went to the residence of Erin Walls in
response to a call from defendant's sister expressing concern about
defendant's welfare and possible drug activity. Walls granted the
police permission to search his apartment. Each person present,
including defendant, consented to be searched. A search of
defendant and the area nearby disclosed drug paraphernalia and a
small amount of crack cocaine.
Defendant was arrested for possession of cocaine. On 24
February 2003, the Wake County grand jury indicted defendant for
possession of cocaine and attaining habitual felon status.
Pursuant to a plea agreement, defendant subsequently entered a plea
of nolo contendere to both charges. The plea agreement provided
that defendant would be sentenced to 70-93 months imprisonment.
The trial court accepted defendant's plea, and defendant stipulated
to the State's presentation of the facts that gave rise to his
arrest. Defendant further stipulated that he plead guilty to three
prior felony charges, which were used by the State to prove
defendant's habitual felon status. The trial court entered
judgment on defendant's plea, and in accordance with the terms of
the plea agreement, sentenced defendant to 70-93 months
imprisonment, with credit for 274 days served while defendantawaited trial. It is from this judgment and sentence that
defendant appeals.
The issues presented on appeal are (1) whether the charge of
possession of cocaine was sufficient to trigger an indictment for
attaining habitual felon status; (2) whether the trial court erred
by allowing an amendment of the habitual felon indictment at trial;
(3) whether defendant's prior record level sentencing was supported
by the evidence; and (4) whether defendant's habitual felon
sentence is unconstitutional.
[1] At the outset we note that a defendant who has entered a
plea of nolo contendere is not entitled to appellate review as a
matter of right unless the defendant is appealing sentencing issues
or the denial of a motion to suppress, or the defendant has made an
unsuccessful motion to withdraw the no contest plea. N.C. Gen.
Stat. § 15A-1444(a1), (a2), (e) (2003). To appeal other issues,
the defendant must petition this Court for review by writ of
certiorari.
In the present case, our review of the record on appeal
indicates that defendant has not made a motion to withdraw the no
contest plea. We also note that defendant has not petitioned this
Court for writ of certiorari. Thus, we dismiss defendant's appeal
as to those assignments of error not related to the sentence
imposed at trial. We limit our review of this case to defendant'ssentencing issues, which are the only issues properly before this
Court.
[2] To that end, we move to defendant's argument that his
prior record level calculation was not supported by the evidence.
G.S. 15A-1340.13(b) provides, that “[b]efore imposing a sentence,
the court shall determine the prior record level for the offender
pursuant to G.S. 15A-1340.14.” N.C. Gen. Stat. § 15A-1340.13(b)
(2003). G.S. 15A-1340.14(a) instructs, “The prior record level of
a felony offender is determined by calculating the sum of the
points assigned to each of the offender's prior convictions that
the court finds to have been proved in accordance with this
section.” N.C. Gen. Stat. § 15A-1340.14(a) (2003). As detailed in
G.S. 15A-1340.14(f),
A prior conviction shall be proved by any of
the following methods:
(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
reliable.
The State bears the burden of proving, by a
preponderance of the evidence, that a prior
conviction exists.
N.C. Gen. Stat. § 15A-1340.14(f)(1)-(4) (2003); see also N.C. Gen.
Stat. § 14-7.4 (2003). G.S. 14-7.6 prohibits the use of the
convictions used to establish a defendant's status as habitual in determining his prior record level. N.C. Gen. Stat. § 14-7.6
(2003).
Though defendant did enter his plea of nolo contendere
pursuant to a plea agreement, which provided for a specific
sentence at the lowest end of the mitigated range of sentences,
that sentence must still be authorized by G.S. 15A-1340.17 for the
class of offense and prior record level. In the present case,
defendant's prior record level worksheet lists eight prior
convictions. Of these eight convictions, three of them were used
by the trial court to establish defendant's habitual felon status:
one count of common law robbery, one count of larceny of chose in
action, and one count of assault with a deadly weapon with intent
to kill inflicting serious injury. Defendant stipulated to these
three convictions during the entry of plea. The remaining five
crimes were used to calculate defendant's prior record level.
Significantly, however, with the exception of the 1982
conviction of crimes against nature, which was initially used to
charge defendant with attaining habitual felon status, the record
is devoid of any proof of the remaining five prior convictions.
The State failed to prove any of the convictions as required by
G.S. 15A-1340.14(f). We, therefore, conclude that the trial court
erred by sentencing defendant as a prior record level III offender,
based on these prior convictions which were not proven at trial.
Accordingly, we must vacate the trial court's judgment and remand
this matter to the superior court for resentencing. At that time,
the State may make a proper showing of defendant's priorconvictions, which were not used in charging him as an habitual
felon.
[3] Defendant next argues that his habitual felon sentence is
cruel and unusual punishment in violation of his Eighth Amendment
rights. We disagree.
Our Supreme Court has rejected Eighth Amendment challenges to
“legislation which is designed to identify habitual criminals and
which authorizes enhanced punishment.” State v. Todd, 313 N.C.
110, 119, 326 S.E.2d 249, 254 (1985). In Todd, the Supreme Court
stated, “'only 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.'”
Id. (quoting State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436,
441 (1983)).
Our habitual felon statute is the result of a deliberate
policy choice by the legislature that those who repeatedly commit
felonious criminal offenses should be segregated from the rest of
society for an extended period of time. State v. Aldridge, 76 N.C.
App. 638, 640, 334 S.E.2d 107, 108 (1985) (quoting Rummel v.
Estelle, 445 U.S. 263, 284, 63 L. Ed. 2d 382, 397 (1980)). “This
segregation and its duration are based not merely on that person's
most recent offense but also on the propensities he has
demonstrated over a period of time during which he has been
convicted of and sentenced for other crimes.” Id. Moreover,
nothing in the Eighth Amendment prohibits our legislature from
enhancing punishment for habitual offenders. For these reasons, weconclude that defendant's habitual felon sentence is not
unconstitutional.
Having considered all of defendant's assignments of error
properly brought forward, we dismiss defendant's appeal on the
entry of his plea, but vacate the judgment of the trial court and
remand this matter for resentencing proceedings not inconsistent
with this opinion.
DISMISSED in part, VACATED in part, and REMANDED.
Judges TYSON and GEER concur.
*** Converted from WordPerfect ***