State v Jenkins, 168 NC App 241 (03-1642) 01/18/2005

On writ of certiorari to review judgment entered 2 August 2002 by Judge A. Moses Massey in Surry County Superior Court. Heard in the Court of Appeals 3 January 2005.

Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

William B. Gibson, for defendant-appellant.

CALABRIA, Judge.

    Timothy Scott Jenkins (“defendant”) was charged with two counts of the sale and delivery of cocaine and two counts of possession with intent to sell and deliver cocaine (“PWISD”) in 01CRS003848-49. At trial, the State presented evidence that tended to show that on or about 28 December 2000 defendant sold crack cocaine to Detective Randy Demmette during an undercover drug operation in Mt. Airy, North Carolina. Defendant did not present any evidence and a jury found defendant guilty as charged. The court determined defendant's prior record level as a Level III, consolidated the sale and delivery charges for an active sentence of 16 to 20 months in the North Carolina Department of Correction,and consolidated the PWISD charges for a suspended sentence to run at the expiration of the first sentence.
    After a lunch recess, defendant plead guilty to six counts of taking indecent liberties with a child. The trial court consolidated the charges pursuant to a plea agreement, and using the drug convictions from earlier that day, the trial court determined defendant's prior record level as a Level IV and sentenced defendant to 21 to 26 months in the North Carolina Department of Correction, to run consecutively to the sentences he received for the drug-related convictions. Defendant appeals.
I.    Constitutional Arguments Arising from Short Jury Deliberation
    Defendant first argues that he was denied his rights to a jury trial, to due process, and to equal protection of the law because the trial court accepted the jury's guilty verdict despite the jury's short deliberation. This argument, however, is not properly before the Court. Generally, as with any other alleged error, a claim of constitutional error must be raised and ruled upon in the trial court. State v. King, 342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995). Further, though plain error review may be available in criminal cases where a question is not preserved by objection noted at trial and is not otherwise deemed preserved by rule of law, “the judicial action questioned [must be] specifically and distinctly contended to amount to plain error.” N.C. R. App. P. 10(c) (4)(2004). See State v. Washington, 134 N.C. App. 479, 485, 518 S.E.2d 14, 17 (1999) (stating “Defendant has waived plain error review by failing to allege in his assignment of error that thetrial court committed plain error.”). Moreover, our Supreme Court has noted that plain error review is limited to jury instructions and evidentiary rulings. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). In the instant case, because defendant failed to raise any constitutional concerns to the trial court and because plain error review is neither argued nor available, defendant has not preserved this issue for appellate review.
    Even assuming the issues were properly before us, defendant cannot show that the jury, having been properly instructed, could not reach a proper verdict within the eight minutes in which it deliberated. Notably, defendant has not referenced, and indeed we cannot find, any support for his argument that a jury is required to deliberate for a certain minimal period of time in order to meet Constitutional requirements.
II. Prior Record Level
    Defendant argues that the trial court erred in determining his prior record level to be a level IV because it used his drug- related convictions from earlier on the same day to calculate his prior record level for the indecent liberties with a child convictions. We note that, although the appellate entries of the trial court list all of the case numbers as being appealed, this Court only granted certiorari on the drug-related convictions, case numbers 01CRS003848-49. Although we did not grant certiorari on 01CRS51018-23, since the record is adequate to address the issue, we will do so in the interest of judicial economy.    North Carolina General Statutes § 15A-1340.14(a) (2003) states, “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.” Under N.C. Gen. Stat. § 15A-1340.11(7)(2003), “[a] person has a prior conviction, when on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime.” “Judgment is entered when sentence is pronounced.” N.C. Gen. Stat. 15A-101(4a) (2003).
    Defendant contends “previously” as used in N.C. Gen. Stat. § 15A-1340.11(7) is vague and argues N.C. Gen. Stat. § 15A- 13.40.14(d) (2003) illustrates that our legislature used “previously” to mean before the start of any particular Superior Court session. We find defendant's argument unpersuasive.
    North Carolina General Statutes § 15A-1340.14(d) provides:
        For purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used. If an offender is convicted of more than one offense in a single session of district court, only one of the convictions is used.

We find nothing vague about the term “previously” and, therefore, apply the term's plain and ordinary meaning. See Brown v. Flowe, 349 N.C. 520, 522, 507 S.E.2d 894, 896 (1998). “Previous” means “[e]xisting or occurring before something else in time or order.” American College Heritage Dictionary 1084 (3rd Ed. 1997).    North Carolina General Statutes § 15A-1340.14(d) applies where “an offender is convicted of more than one offense in a single superior court during one week,” and it limits the number of prior convictions a trial court can use when determining prior record level to only one conviction occurring within any one week period. In this case, the trial judge looked back at defendant's earlier convictions and used only one of the convictions entered during the week of trial. Because N.C. Gen. Stat. 15A-1340.14(d) says nothing about the meaning of “previously” for purposes of N.C. Gen. Stat. § 15A-1340.11(7), and because the trial court used the plain and ordinary meaning of “previously,” we hold that the trial court properly determined defendant's prior record level to be a level IV.
    Defendant failed to bring forward his remaining assignments of error, and therefore, they are deemed abandoned. N.C. R. App. P. 28(b)(6).
    No error.
    Judge TIMMONS-GOODSON concurs.
    Judge LEVINSON concurs with a separate opinion.
    Report per Rule 30(e).

NO. COA03-1642

NORTH CAROLINA COURT OF APPEALS

Filed: 18 January 2005

STATE OF NORTH CAROLINA

v .                         Surry County
                            No. 01 CRS 003848-49
TIMOTHY SCOTT JENKINS             01 CRS 51018-23

LEVINSON, Judge concurring with separate opinion.

I concur in the majority opinion except Section II. This Section concerns judgments and an issue which are not before this Court.

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