An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-658


Filed: 3 May 2005


         v.                        Alamance County
                                No. 03 CRS 56308

    Appeal by defendant from judgment entered 6 January 2004 by Judge Kenneth C. Titus in Alamance County Superior Court. Heard in the Court of Appeals 21 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.

    John T. Hall for defendant-appellant.

    GEER, Judge.

    Defendant Wallace Baldwin, Jr. appeals from the denial of his motion to dismiss the habitual felon indictment. One of the three felonies underlying the habitual felon indictment was a 1997 conviction for possession of cocaine, and defendant argues that the motion to dismiss should have been granted because possession of cocaine is a misdemeanor rather than a felony. The Supreme Court ruled otherwise in State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004) and we, therefore, affirm.
    On 23 April 2003, defendant made a sale of cocaine to an undercover agent. The transaction was captured on film. Defendant was indicted with possession with intent to sell or deliver cocaine, sale of cocaine, and delivery of cocaine. In a separatebill of indictment, defendant was also charged with having attained the status of habitual felon. Defendant moved to dismiss the habitual felon indictment, but the trial court denied the motion. Pursuant to a plea agreement, defendant pled guilty to the charges, including an Alford plea as to the habitual felon status, but reserved the right to appeal the trial court's denial of his motion to dismiss the habitual felon indictment. In accordance with the plea agreement, the trial court entered judgment consolidating the offenses and sentenced defendant as a Class C felon in the mitigated range of 70 to 93 months imprisonment.
    Defendant argues that his habitual felon indictment was invalid because one of the three convictions relied upon by the State to enhance his status to habitual felon was for possession of cocaine, which, he argues, is classified as a misdemeanor under N.C. Gen. Stat. § 90-95(d)(2) (2003). Our Supreme Court rejected this argument in Jones, 358 N.C. at 486, 598 S.E.2d at 133, holding "that under N.C.G.S. § 90-95(d)(2), the offense of possession of cocaine is classified as a felony for all purposes." The trial court, therefore, properly denied the motion to dismiss.

    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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