Sentencing--habitual felon--sufficiency of indictment
The trial court erred in a possession with intent to sell and deliver cocaine case by
sentencing defendant as an habitual felon based on the original charges and the 16 July 2004 drug
offense, and the case is reversed and remanded for resentencing, because: (1) where a felony
guilty plea and admission to habitual felon status are adjudicated and sentencing is continued on
the same until a later date, a subsequent felony charge must be accompanied by a new habitual
felon indictment or bill of information to comport with the statutory requirements of N.C.G.S. §
14-7.3; and (2) defendant's guilty pleas on the original charges were adjudicated but the actual
entry of judgment continued until some later date, the State had not obtained a new habitual felon
indictment as required by N.C.G.S. § 14-7.3, and defendant had not agreed to waive the same and
admit his status pursuant to a bill of information.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant.
LEVINSON, Judge.
Where a felony guilty plea and admission to habitual felon
status are adjudicated, and sentencing continued on the same until
a later date, a subsequent felony charge must be accompanied by a
new habitual felony indictment or bill of information to comport
with the statutory requirements of N.C. Gen. Stat. § 14-7.3 (2003).
Defendant was indicted for the offenses of possession with
intent to sell and deliver cocaine and possession of drug
paraphernalia in September 2001. He was indicted again in January2003 for possession with intent to sell and deliver cocaine, and
for maintaining a motor vehicle for the purpose of keeping and/or
selling cocaine. Thereafter, defendant entered into a plea
agreement with the State. Consistent with that agreement,
defendant pled guilty to two counts of possession of cocaine, and
admitted his habitual felon status pursuant to two bills of
information.
(See footnote 1)
Defendant entered his plea before the trial court on
11 February 2004, and the trial court adjudicated the same. Rather
than enter judgment, however, sentencing was continued until 6
April 2004. Defendant did not remain in custody following his
guilty pleas.
Defendant failed to appear in court for sentencing, and an
order for his arrest was issued. He was arrested on 16 July 2004.
New charges for possession with intent to sell and deliver cocaine,
possession of drug paraphernalia, and possession of lottery tickets
arose out of events occurring 16 July 2004.
Defendant next appeared before the trial court 5 August 2004,
when he entered into a second plea agreement with the State.
Consistent with this agreement, defendant pled guilty to the new
charge of possession with intent to sell and deliver cocaine.
Although defendant, in his transcript of plea, “agree[d] to be
sentenced as an habitual felon”, the State had not obtained a newhabitual felon indictment or drawn an additional bill of
information alleging defendant's status as an habitual felon.
The trial court sentenced defendant as an habitual felon on
the original charges and the 16 July 2004 drug offense. Defendant
appeals.
Defendant argues that the trial court lacked the authority to
sentence him as an habitual felon for the 16 July 2004 felony
offense because the State had not obtained a new habitual felon
indictment, and defendant had not agreed to waive the same and
admit his status pursuant to a bill of information.
(See footnote 2)
We agree.
N.C. Gen. Stat. . 14-7.3 (2003) states, in relevant part:
[a]n indictment which charges a person who is
an habitual felon within the meaning of G.S.
14-7.1 with the commission of any felony under
the laws of the State of North Carolina must,
in order to sustain a conviction of habitual
felon, also charge that said person is an
habitual felon.
The habitual felon indictment must be separate from the principal
felony indictment. G.S. . 14-7.3; State v. Allen, 292 N.C. 431,
433, 233 S.E.2d 585, 587 (1977). Our Supreme Court has stated that
G.S. § 14-7.3 “requires that the State give defendant notice of the
felonies on which it is relying to support the habitual felon
charge[.]” State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864
(1995). The statute “requires the State to allege all the elements
of the offense of being a[n] habitual felon thereby providing adefendant with sufficient notice that he is being tried as a
recidivist to enable him to prepare an adequate defense to that
charge.” Id. at 729, 453 S.E.2d at 864.
“'It is settled law in this State that a plea of guilty,
freely, understandingly, and voluntarily entered, is equivalent to
a conviction of the offense charged.'” State v. Sidberry, 337 N.C.
779, 782, 448 S.E.2d 798, 800 (1994) (quoting State v. Watkins, 283
N.C. 17, 27, 194 S.E.2d 800, 808 (1973)). A formal entry of
judgment is not required in order to have a conviction. State v.
Hatcher, 136 N.C. App. 524, 527, 524 S.E.2d 815, 817 (2000) (citing
State v. Fuller, 48 N.C. App. 418, 268 S.E.2d 879 (1980))
(interpreting N.C. Gen. Stat. § 15A-1331(b)).
The State did not obtain an indictment charging defendant with
being an habitual felon that was ancillary to the 16 July 2004
felony drug offense. Therefore, the State did not satisfy the
requirements of G.S. § 14-7.3 that there be an indictment ancillary
to the predicate substantive felony. Although the State previously
charged defendant with being an habitual felon by virtue of the
bills of information accompanying the original charges, defendant
had already been convicted of the substantive felonies associated
with these bills of information. Had defendant already been
sentenced on the original charges, there would be little question
that the State would have been required to obtain a new habitual
felon indictment ancillary to the 16 July 2004 felony offense. We
conclude the same result issues here, where the accused's guiltypleas were adjudicated, but the actual entry of judgment continued
until some later date.
Because defendant had already been convicted of the predicate
felonies that accompanied his earlier habitual felon bills of
information, the court lacked the authority to sentence him as an
habitual felon for the 16 July 2004 substantive felony offense in
the absence of a new charging instrument for habitual felon status.
Reversed and remanded for proceedings not inconsistent with
this opinion.
Judges McCULLOUGH and ELMORE concur.
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