STATE OF NORTH CAROLINA
v. Henderson County
Nos. 00CRS2829, 51991
STEVE ALLEN SPROUSE
Attorney General Roy A. Cooper, III, by Special Deputy
Attorneys General Robert T. Hargett and Amar Majmundar, for
the State.
Eric A. Bach for defendant-appellant.
HUNTER, Judge.
On 25 September 2000, a jury found Steve Allen Sprouse
(defendant) guilty of felonious breaking and entering, and
defendant through counsel then admitted his habitual felon status.
The trial court sentenced defendant to a term of 135 to 171 months
imprisonment as a class C felon at prior record level VI.
Defendant appealed, and this Court found no error. State v.
Sprouse, 149 N.C. App. 490, 562 S.E.2d 470 (2002) (unpublished).
On or about 25 November 2002, defendant filed a motion for
appropriate relief with the trial court. Judge Zoro J. Guice, Jr.
denied the motion on 31 January 2003, and defendant sought review
of the trial court's order by filing a petition for writ ofcertiorari with this Court. On 13 June 2003, this Court allowed
the petition for the limited purpose of vacating the trial court's
order, and the matter was remanded for an evidentiary hearing to
determine defendant's prior record level. At the hearing on 9 July
2003, Judge Ronald K. Payne found that defendant had eighteen prior
record points and a prior record level of V. After finding that
the mitigating factors outweighed the aggravating factors, Judge
Payne imposed a mitigated range sentence of 90 to 117 months
imprisonment. In accordance with the provisions of N.C. Gen. Stat.
§ 14-7.6 (2003), the trial court directed that the sentence be
served at the expiration of any sentence which defendant was
obligated to serve. From the trial court's judgment, defendant
appeals.
Defendant first contends the trial court failed to follow the
mandate of this Court's order which remanded the matter for an
evidentiary hearing to determine his prior record level. He argues
the trial court exceeded the scope of its jurisdiction by directing
that his sentence be served consecutively. We disagree.
As an initial matter, defendant does not challenge the trial
court's determination of his prior record level. Nor does he
contest the term of the sentence imposed, which is the lowest
possible mitigated range sentence for an habitual felon enhancement
(class C) of his breaking and entering offense at prior record
level V. See N.C. Gen. Stat. § 15A-1340.16 (2003). Although
defendant argues the trial court erred by directing in its judgment
that the sentence was to be served consecutively, defendant wassentenced in accordance with N.C. Gen. Stat. § 14-7.6 (sentencing
of habitual felons). The statute requires that [s]entences
imposed under this Article shall run consecutively with and shall
commence at the expiration of any sentence being served by the
person sentenced under this section. N.C. Gen. Stat. § 14-7.6.
The trial court properly complied with the statutory mandate in its
judgment. This assignment of error is overruled.
In his second argument, defendant attempts to challenge his
sentencing as an habitual felon. Defendant, however, failed to
raise this issue in his appeal of right from the 25 September 2000
judgment. See Sprouse, 149 N.C. App. 490, 562 S.E.2d 470. When he
first sought to raise the issue in his motion for appropriate
relief dated 25 November 2002, it was procedurally barred as a
result of his failure to raise the issue in his appeal of right.
See N.C. Gen. Stat. § 15A-1419(a)(3) (2003).
Defendant's appeal is from the judgment entered on 9 July
2003. The trial court did not address defendant's attainment of
the status of an habitual felon, but simply resentenced him after
correcting his prior record level. Defendant therefore cannot
challenge his habitual felon status in the present appeal. See
N.C.R. App. P. 4 and 10. Nor can defendant properly raise the
issue in the motion for appropriate relief which he filed with this
Court on 9 September 2004. He unsuccessfully argued the issue in
his motion for appropriate relief filed with the trial court on 25
November 2002 and in the petition for writ of certiorari filed with
this Court. Other than directing the correction of defendant'sprior record level, this Court in addressing his petition for writ
of certiorari did not grant him any further relief from the trial
court's 31 January 2003 order which denied his motion for
appropriate relief. See State v. Benfield, 76 N.C. App. 453, 459,
333 S.E.2d 753, 756 (1985) (subsequent panel of the same court is
bound by prior panel's denial of certiorari as to same issues).
Defendant's motion for appropriate relief filed on 9 September 2004
is therefore denied, and defendant's second assignment of error is
dismissed.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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