Appeal by defendant from amended judgment dated 14 November
2003 by Judge Charles H. Henry in Superior Court, Onslow County.
Heard in the Court of Appeals 7 December 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Marc X. Sneed, for the State.
Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant-
David Jerod Miller (defendant) was convicted of possession
with the intent to manufacture, sell, and deliver cocaine;
manufacturing a controlled substance; maintaining a vehicle for
keeping and selling a controlled substance; and driving while his
license was revoked. Defendant was also determined to be anhabitual felon. The trial court consolidated defendant's
convictions and sentenced defendant to 100 to 129 months in prison.
Defendant appealed his convictions to this Court. In an
unpublished opinion dated 21 October 2003, we reversed defendant's
convictions for manufacturing a controlled substance, possession
with intent to manufacture a controlled substance, and maintaining
a vehicle for keeping and selling a controlled substance. We also
remanded for resentencing.
At resentencing, defendant requested that the trial court set
aside the habitual felon verdict. The trial court denied
defendant's request and found that defendant was an habitual felon
with a prior record level II. The trial court entered an amended
judgment sentencing defendant to a term of 90 to 117 months in
prison. Defendant appeals.
 Defendant first assigns error to the trial court's
sentencing defendant as an habitual felon. Defendant contends that
the habitual felon indictment only alleged one prior felony offense
and therefore the trial court lacked jurisdiction to sentence
defendant as an habitual felon.
An habitual felon indictment must "set forth the three prior
felony convictions relied on by the State[.]" State v. Cheek
N.C. 725, 729, 453 S.E.2d 862, 865 (1995); see also
N.C. Gen. Stat.
§ 14-7.3 (2003). Defendant's habitual felon indictment listed
three previous convictions: one conviction for attempted larceny
and two convictions for possession of cocaine. Defendant argues
that possession of cocaine is a misdemeanor, and consequently thehabitual felon indictment listed only one previous felony
N.C. Gen. Stat. § 90-95(d)(2) (2003), states that any person
who possesses "[a] controlled substance classified in Schedule
II . . . shall be guilty of a Class 1 misdemeanor."
(See footnote 1)
statute further states: "If the controlled substance is
. . . cocaine . . . , the violation shall be punishable as a Class
I felony." N.C. Gen. Stat. § 90-95(d)(2). Defendant contends that
his prior convictions for possession of cocaine are misdemeanor
convictions, arguing that "[t]he fact that possession of cocaine is
as a Class I felony does not make it a felony."
Our Supreme Court recently rejected a similar argument in
State v. Jones
, 358 N.C. 473, 598 S.E.2d 125 (2004). In Jones
defendant pled guilty to having attained habitual felon status.
. at 474, 598 S.E.2d at 126. The defendant's habitual felon
indictment listed three prior convictions, including one conviction
for possession of cocaine. Id
. at 474, 598 S.E.2d at 126. On
appeal, the defendant argued that his habitual felon indictment was
insufficient to allege habitual felon status because N.C. Gen.
Stat. § 90-95(d)(2) classified possession of cocaine as a
. at 475, 598 S.E.2d at 126. Our Supreme Court
rejected the defendant's argument and held that possession of
cocaine is a felony, stating that: "The language of N.C.G.S. § 90-
95(d)(2), the statute's legislative history, and the terminology
used in other criminal statutes all indicate the General Assembly'sintent to classify possession of cocaine as a felony offense." Id
at 476, 598 S.E.2d at 127.
Based on our Supreme Court's holding in Jones
, we find that
defendant's habitual felon indictment listed three prior felony
convictions and hold that the trial court had jurisdiction to
sentence defendant as an habitual felon. We overrule this
assignment of error.
 Defendant next assigns error to the trial court's
determination of defendant's prior record level. In the amended
judgment, the trial court found that defendant had four prior
record points and a prior record level II.
When establishing a defendant's prior record level, the State
bears the burden of proving a prior conviction by a preponderance
of the evidence. N.C. Gen. Stat. § 15A-1340.14(f) (2003). Prior
convictions may be proven by any one 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
The State did not present any evidence at defendant's
resentencing hearing. Defendant argues that this failure to
present any evidence precludes the State from meeting its burden of
proving defendant's prior convictions. The State contends that
defendant stipulated to a prior record level II since defendantadmitted in open court at the resentencing hearing that he had two
prior convictions for possession of cocaine:
[ATTORNEY FOR DEFENDANT]: Your Honor,
. . . we're asking the [trial court] to modify
the sentence in the mitigated range, based on
the fact that . . . two of [defendant's] prior
convictions, Your Honor, are possession of
cocaine, and Court of Appeals law . . .
indicates that possession of cocaine is a
misdemeanor punishable as a felony, and
therefore, should not be considered . . . for
the purpose of sentencing for habitual
. . . .
Basically, we would ask the Court to consider
. . . setting aside the habitual status, based
on the law we know exists from the Court of
Appeals in another case.
The State argues that this is the equivalent of a stipulation to a
prior record level II. See
N.C. Gen. Stat. § 90-95(d)(2)
(possession of cocaine is a Class I felony); N.C. Gen. Stat. § 15A-
1340.14(b)(4) (2003) (two prior record level points are assigned to
each Class I felony conviction); N.C. Gen. Stat. § 15A-
1340.14(c)(2) (2003) (a defendant with four prior record level
points acquires a prior record level II).
Prior convictions used to establish a defendant's habitual
felon status may not also be used to determine a defendant's prior
record level. N.C. Gen. Stat. § 14-7.6 (2003); see also State v.
, 150 N.C. App. 701, 703-04, 564 S.E.2d 597, 598, disc. review
, 356 N.C. 171, 568 S.E.2d 856 (2002). In Lee
defendant's habitual felon indictment listed five prior felony
, 150 N.C. App. at 703, 564 S.E.2d at 598. The
trial court determined that the defendant had a prior record level
III, relying in part on the same five prior felony convictions. Id
. at 702-03, 564 S.E.2d at 597-98. Even though the habitual
felon statute only required an habitual felon indictment to list
three prior felony convictions, we held that none of the felonies
listed on the habitual felon indictment could simultaneously be
used to prove the defendant's prior record level. Id
. at 703-04,
564 S.E.2d at 598-99; see also State v. Bethea
, 122 N.C. App. 623,
626, 471 S.E.2d 430, 432 (1996) ("A defendant's prior convictions
will either serve to establish a defendant's status as an habitual
felon . . . or to increase a defendant's prior record level . . . .
[T]he existence of prior convictions may not be used to increase a
defendant's sentence pursuant to both provisions at the same
In the case before us, the State incorrectly sought to prove
defendant's prior record level by relying on two convictions that
were also used to establish defendant's status as an habitual
felon. We therefore hold that defendant's admission that he had
two prior convictions for possession of cocaine is not sufficient
to prove that he had a prior record level II. Since the State has
failed to present any other evidence regarding defendant's prior
record, we must remand for resentencing.
 Defendant argues in his final assignment of error that the
trial court erred in failing to credit defendant with time spent in
jail prior to judgment. N.C. Gen. Stat. § 15-196.4 (2003) provides
that "[u]pon sentencing or activating a sentence, the judge
determine the credits to which the defendant is
entitled [.]" (emphasis added). In this case, the trial court onlycredited defendant with fifteen days. However, defendant was
confined from (1) the date of his arrest on 3 November 2001, until
his release on 17 November 2001, and (2) from 15 May 2002, until
the date judgment was entered on 14 November 2003. As a result,
defendant argues that he is entitled to a total credit of 563 days,
or an additional 548 days of credit. The State admits that the
trial court erred in failing to make a determination regarding any
credits defendant may have earned, and requests that we remand the
issue to the trial court. Therefore, we remand this issue to the
trial court to make a determination regarding the credits to which
defendant is entitled.
Affirmed; remanded for resentencing and a determination of
Judges WYNN and TYSON concur.