Link to original WordPerfect file
Link to PDF file
How to access the above link?
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. JIMMY MONICK HALL
Filed: 1 November 2005
1. Sentencing_habitual offender_not cruel and unusual
The trial court's use of seven prior misdemeanor convictions to enhance a sentence
already enhanced under the Habitual Felon Act was consistent with N.C.G.S. § 15A-1340.14 and
with legislative purpose and was not cruel and unusual punishment.
2. Constitutional Law_effective assistance of counsel_failure to object to record level
Defendant did not demonstrate ineffective assistance of counsel where his trial counsel did
not object to his assigned prior record level, but defendant did not show that not objecting was
unreasonable or that there was any probability of a different result without the alleged error.
Appeal by defendant from judgment entered 16 September 2004 by
Judge Clarence E. Horton, Jr., in Cabarrus County Superior Court.
Heard in the Court of Appeals 12 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn L. Strange, for the State.
Bruce T. Cunningham, Jr., for defendant-appellant.
Jimmy Monick Hall (defendant) appeals judgment entered after
a jury found him to be guilty of obtaining property by false
pretenses and attempting to obtain property by false pretenses. We
find no error.
On 16 September 2004, a jury found defendant guilty of
removing two DVD collections from the shelf of a retail store and
receiving store credit for the DVDs in the amount of $510.38.
Defendant was also convicted of attempting to obtain store creditat BJ's Warehouse Club for a seventeen inch and an eighteen inch
monitor. Following the jury's verdicts, defendant pled guilty to
being an habitual felon and the trial court sentenced him to 121 to
155 months imprisonment. Defendant appeals.
Defendant asserts: (1) the trial court erred in imposing a
Class C Level V sentence instead of a Class C Level III sentence;
and (2) if an objection in the trial court was required to preserve
this error, the failure of trial counsel to object to his sentence
at prior record level V constitutes ineffective assistance of
III. Cruel and Unusual Punishment
 Defendant argues the State's use of prior misdemeanor
convictions to enhance a sentence already enhanced under the
Habitual Felon Act constitutes cruel and unusual punishment.
The United States Supreme Court stated:
The purpose of a recidivist statute such as
that involved here is not to simplify the task
of prosecutors, judges, or juries. Its
primary goals are to deter repeat offenders
and, at some point in the life of one who
repeatedly commits criminal offenses serious
enough to be punished as felonies, to
segregate that person from the rest of society
for an extended period of time. 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.
Rummel v. Estelle, 445 U.S. 263, 284, 63 L. Ed. 2d 382, 397 (1980).
The Supreme Court also stated, [o]utside the context of capital
punishment successful challenges to the proportionality of
particular sentences have been exceedingly rare. Id. at 273, 382
L. Ed. 2d at 390.
N.C. Gen. Stat. § 14-7.1
(2003) provides, [a]ny person who
has been convicted of or pled guilty to three felony offenses in
any federal court or state court in the United States or
combination thereof is declared to be an habitual felon.
Defendant pled guilty and does not contest on appeal having
attained the status of an habitual felon. His uncontested prior
record shows seven prior felony and eleven prior misdemeanor
convictions. Upon his conviction of an habitual felon, defendant
was classified as a Class C felon and received a sentence of
between 121 to 155 months pursuant to the North Carolina Structured
. N.C. Gen. Stat. § 14-7.6
N.C. Gen. Stat. § 14-7.6 states:
When an habitual felon as defined in this
Article commits any felony under the laws of
the State of North Carolina, the felon must,
upon conviction or plea of guilty under
indictment as provided in this Article (except
where the felon has been sentenced as a Class
A, B1, or B2 felon) be sentenced as a Class C
Defendant argues the use of his prior misdemeanor convictions
in enhanced sentencing due to being an habitual felon resulted in
cruel and unusual punishment under the Eighth Amendment to the
United States Constitution. U.S. Const. amend. VIII. In addition
to the United States Supreme Court opinion in Rummel, our SupremeCourt has stated, our legislature has acted with constitutionally
permissible bounds in enacting legislation designed to identify
habitual criminals and to authorize enhanced punishment. State v.
Todd, 313 N.C. 110, 118, 326 S.E.2d 249, 253 (1985), cert. denied,
___ N.C. ___, 547 S.E.2d 39 (2001). The Court stated,
[l]egislation which is designed to identify habitual criminals and
which authorizes enhanced punishment has withstood eighth amendment
challenges. Id. at 119, 326 S.E.2d at 254.
One purpose of N.C. Gen. Stat. § 15A-1340.14 is to deter and
segregate career criminals from continuing to commit crimes.
Another purpose is to remove recidivist criminals from preying on
the public through progressively longer incarceration with each
criminal conviction. The trial court's use of defendant's eleven
prior misdemeanors and seven prior felonies to enhance his
sentencing is consistent with the legislative intent and purpose
to identify habitual criminals and to authorize enhanced
punishment. Id. at 118, 326 S.E.2d at 253.
A sentence consistent
with the statute does not constitute cruel and unusual punishment
under the Eighth Amendment.
The assignment of error is overruled.
IV. Ineffective Assistance of Counsel
 Defendant argues the failure of trial counsel to object to
a sentence at a prior record level V constituted ineffective
assistance of counsel. We disagree.
The United States Supreme Court provided a two-prong test for
a defendant to establish ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
The test requires:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
counsel guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Defendant failed to show either requirement of this test.
Defendant's only argument was that counsel failed to object to the
trial court's sentence imposed upon defendant, after he pled guilty
to being an habitual felon. Defendant does not dispute the
validity of any of his prior convictions. The record contains a
knowing and voluntary transcript of plea.
The Supreme Court stated, [i]n any case presenting an
ineffectiveness claim, the performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances. Id. at 688, 80 L. Ed. 2d at 694. Defendant failed
to argue or show his trial counsel's failure to object to a
permissible sentence was unreasonable. Defendant also failed to
identify any probability that a different result would have
occurred absent the alleged error of trial counsel. Id. This
assignment of error is overruled.
The trial court did not err in imposing a Class C Level V
sentence instead of a Class C Level III sentence in violation of
defendant's Eighth Amendment rights. Defendant has failed to show
he received ineffective assistance of counsel or that a different
result at trial would have occurred but for his counsel's alleged
error. Defendant received a fair trial free from errors he
assigned and argued. We find no error in defendant's trial or
Judges JACKSON and JOHN concur.
*** Converted from WordPerfect ***