State v Bailey, (04-1147) 04/05/2005

Appeal by defendant from judgment entered 30 August 2001 by Judge Clarence W. Carter in Forsyth County Superior Court. Heard in the Court of Appeals 4 April 2005.

Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State.

Kevin P. Bradley for defendant-appellant

ELMORE, Judge.

    Defendant pled guilty to five counts of felonious breaking and entering, five counts of felonious larceny, one count of attempted breaking and entering, and to habitual felon status. In accordance with the terms of the plea agreement, the trial court entered judgment consolidating defendant's offenses and sentencing him as an habitual felon with a prior record level V to a mitigated sentence of 90 to 117 months imprisonment. By order entered 11 February 2004, we issued a writ of certiorari to allow defendant a belated appeal from the judgment, limited to those issues within his appeal of right. See N.C. Gen. Stat. § 15A-1444(a1), (a2) (2003).    Defendant now avers that the trial court erred in sentencing him as a prior record level V. Specifically, he claims the court improperly assigned him a prior record point pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(6), under which a point is imposed “[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level[.]” N.C. Gen. Stat. § 15A-1340.14 (b)(6) (2003). Arguing that habitual felon status is an element of the “present offense” for which he was sentenced, he contends that none of his prior convictions included this essential element and thus did not warrant a prior record point under this subsection.
    Initially, we note that defendant stipulated to his prior record level at his plea hearing, as follows:
        THE COURT: Do you stipulate to a factual basis for the plea and he's a record [l]evel Five for habitual sentencing?

        [DEFENSE COUNSEL]: We do.

Assuming, arguendo, that the issue is properly before us, we find no merit to his claim. Habitual felon status is not a substantive offense; nor is it an element of the offenses to which defendant pled guilty. See State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 710 (1996) (“Being an habitual felon is not a crime but rather a status which subjects the individual who is subsequently convicted of a crime to increased punishment for that crime.”). Indeed, our Habitual Felon Act requires such status to be alleged in an indictment separate from the indictment charging thesubstantive offense, and to be proved in a proceeding separate from the trial on the substantive offense. See N.C. Gen. Stat. § 14-7.3, -7.5 (2003).
    Defendant pled guilty to the substantive felonies of breaking and entering and larceny, as well as attempted breaking and entering. His prior record worksheet reflects convictions for, inter alia, felonious breaking and entering and felonious larceny after breaking and entering in both 1993 and 1995. Inasmuch as all elements of his instant offenses are included in his prior convictions for the same crimes, he was properly assessed one prior record point under N.C. Gen. Stat. § 15A-1340.16(b)(6).
    Defendant has identified two clerical errors on the judgment. He notes the judgment fails to reflect his guilty plea to felonious breaking and entering and larceny in 01 CRS 56422, and that it erroneously lists his offense in 01 CRS 56425 as breaking and entering, rather than the indicted offense of attempted breaking and entering. Accordingly, we remand to the trial court for correction of the judgment to include the offenses to which defendant pled guilty in 01 CRS 56422 and to correct the offense to which he pled guilty in 01 CRS 56425.
    Affirmed; remanded for correction of judgment.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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