An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1404
            
                                          &nb sp; 
NORTH CAROLINA COURT OF APPEALS
        

Filed: 2 August 2005


STATE OF NORTH CAROLINA

         v.                        Brunswick County
                                Nos. 02 CRS 3043
ADRIAN KENNETH SELDON                    03 CRS 1785
    

    On writ of certiorari to review judgment entered 3 June 2003 by Judge James Floyd Ammons, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 25 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Iain M. Stauffer, for the State.

    Sue Genrich Berry for defendant-appellant.

    LEVINSON, Judge.

    Adrian Kenneth Seldon (defendant) was charged with possession of cocaine and attaining habitual felon status. The State's evidence tended to show that on or about 6 June 2002, the Brunswick County Sheriff's Drug Enforcement Unit executed a search warrant for 544 Vineyard Landing Road. The search warrant authorized a search of the property for drugs, guns, weapons, and anything related to controlled substance crimes. In executing the warrants, officers searched a storage shed located on the premises. The search of the shed yielded a rock of crack cocaine from a tennis shoe, two spoons with cocaine residue, baggies containing cocaine residue, and several screens, used in pipes to smoke crack, inside a container lid. A search of defendant, who slept in the storageshed located at the Vineyard Landing Road property, yielded two crack pipes.
    Defendant knew the owner of the property, Michael Earl Smith, and worked for Smith's construction clean-up business. Smith and defendant would periodically smoke crack cocaine together. In fact, just before the Sheriff's Department Drug Enforcement Unit executed its search warrant on 6 June 2002, the two had made and smoked crack cocaine in the storage shed on Smith's property. Smith had left the storage shed and walked into the house shortly before officers from the Drug Enforcement Unit executed its warrant.
    The jury found defendant guilty of the possession charge, and defendant subsequently admitted to having attained habitual felon status. After finding no aggravating factors and two mitigating factors, the trial court sentenced defendant to a mitigated sentence of 70-93 months imprisonment. Defendant appeals.
    By his first assignment of error, defendant argues the trial court erred in allowing the trial to proceed while he was asleep, in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 18, 19, 23, 24, and 26 of the North Carolina Constitution. Defendant contends that he was incompetent to proceed to trial and the trial court erred by not conducting a competency hearing after observing him sleeping.
    It is well settled that due process is violated if a criminal defendant is tried while incompetent. Medina v. California, 505 U.S. 437, 453, 120 L. Ed. 2d 353, 368 (1992). “The determinationof a defendant's capacity to proceed in North Carolina is governed by G.S. §§ 15A-1001 - 1002.” State v. Aytche, 98 N.C. App. 358, 361, 391 S.E.2d 43, 45 (1990). In State v. Propst, this Court stated the test to be used to determine if a defendant is mentally incompetent:
        “whether [the defendant] has the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed.”
274 N.C. 62, 70, 161 S.E.2d 560, 566 (1968) (quoting 21 Am. Jur. 2d, Criminal Law § 63).
    The defendant's capacity “may be raised at any time . . . by the prosecutor, the defendant, the defense counsel, or the court.” N.C.G.S. § 15A-1002(a) (2003). “'[A] trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent.'” State v. Young, 291 N.C. 562, 568, 231 S.E.2d 577, 581 (1977) (quoting Crenshaw v. Wolff, 504 F.2d 377 (8th Cir. 1974)).
    In the instant case, on the morning of trial, counsel informed the court that defendant was not present in the courtroom and asked if he could be excused to see if defendant had “fallen asleep on the stairs.” Counsel noted, “[h]e's done that before.” Additionally, at the close of the State's evidence, counsel discussed (outside of the presence of the jury) the matter of whether defendant wished to testify. In response, the followingexchange occurred between the court and defendant:
    THE COURT: OKAY. MR. SELDON, STAND UP, PLEASE. CAN YOU HEAR ME, SIR?

    [DEFENDANT]: YES, SIR.

    THE COURT: DO YOU UNDERSTAND ME?

    [DEFENDANT]: YES, SIR.

    THE COURT: DO YOU THINK YOU'RE FEELING ALL RIGHT [sic] TODAY?

    [DEFENDANT]: YES, SIR. I WANT TO APOLOGIZE TO THE COURT. I HAVE SLEEP APNEA.

    THE COURT: WELL, WE TALKED ABOUT THAT BEFORE.

    [DEFENDANT]: OKAY.

    THE COURT: AND I NOTICED YOU'VE BEEN SLEEPING A LITTLE BIT.

    [DEFENDANT]: ALL RIGHT [sic].

    THE COURT: IT'S HARD FOR ME NOT TO SLEEP TOO.

    [DEFENDANT]: OKAY.

    THE COURT: IF YOU'D JUST ANSWER THESE QUESTIONS JUST EITHER YES OR NO.

    [DEFENDANT]: ALL RIGHT [sic].

    THE COURT: AND IF YOU HEAR YOUR ATTORNEY SAY OBJECTION WHILE I'M TALKING, THEN JUST DON'T SAY ANYTHING ELSE. ALL RIGHT? [SIC] I ASSUME YOU HAVE DISCUSSED WITH HIM THE PROS AND THE CONS OF TESTIFYING. BY THAT I MEAN THE GOOD POINTS TO YOUR TESTIFYING AND THE BAD POINTS TO YOUR TESTIFYING. IS THAT CORRECT?

    [DEFENDANT]: YES.

    THE COURT: AND I ASSUME YOU'VE TALKED TO HIM ABOUT THE GOOD POINTS AND THE BAD POINTS OF YOUR NOT TESTIFYING. IS THAT CORRECT?

    [DEFENDANT]: YES.

    THE COURT: OKAY. AND, AS I UNDERSTAND IT, YOU HAVE A SUBSTANTIAL RECORD THAT WILL COME OUT IN FRONT OF THEJURY PROBABLY IF YOU TESTIFY. DO YOU UNDERSTAND THAT?

    [DEFENDANT]: I DON'T UNDERSTAND THAT.

    THE COURT: IF YOU TESTIFY, THE STATE'S GOING TO ASK YOU ABOUT YOUR PRIOR RECORD AND YOU'RE GOING TO HAVE TO TELL THEM ABOUT YOUR PRIOR RECORD IN FRONT OF THE JURY. SO THE JURY WILL KNOW THAT YOU HAVE PRIOR CONVICTIONS. DO YOU UNDERSTAND THAT?

    [DEFENDANT]: OKAY. I UNDERSTAND THAT.

    THE COURT: NOW, YOU HAVE A GOOD ATTORNEY AND YOU SHOULD LISTEN TO HIS ADVICE AND YOU SHOULD BE GUIDED BY HIS ADVICE, BUT I WANT YOU TO UNDERSTAND THIS. WHETHER YOU TESTIFY OR NOT IS YOUR DECISION. AND YOUR DECISION ALONE. ALL RIGHT? [SIC] IF YOU DECIDE TO TESTIFY IT HAS TO BE YOUR DECISION. IF YOU DECIDE NOT TO TESTIFY IT HAS TO BE YOUR DECISION. NOW YOU SHOULD MAKE THAT DECISION AFTER TALKING TO YOUR ATTORNEY AND LISTEN TO HIS ADVICE AND LISTEN TO WHAT HE SAYS. WEIGHING ALL THE GOOD POINTS AND THE BAD POINTS OF EACH ACTION. HAVE YOU HAD AN OPPORTUNITY TO DO THAT?

    [DEFENDANT]: NO, SIR.

    THE COURT: DO YOU NEED SOME TIME TO TALK TO HIM ABOUT THAT?

    [DEFENDANT]: YES, SIR.

    THE COURT: ALL RIGHT. [SIC] WELL, WHY DON'T YOU SIT DOWN NOW AND TALK THAT OVER WITH HIM AGAIN. MAKE SURE THAT YOU UNDERSTAND WHAT ALL YOUR OPTIONS ARE AND I'LL COME BACK TO YOU.

    [DEFENDANT]: OKAY.

    [DEFENSE COUNSEL]: YOUR HONOR, I'VE DISCUSSED THIS FURTHER WITH MY CLIENT AND I THINK WHAT WE'RE GOING TO DO IS, I CAN'T SAY DEFINITELY HE'S GOING TO TESTIFY OR NOT. WE'RE GOING TO CALL OUR FIRST WITNESS. AFTER THAT, WE'LL DETERMINE ---

    THE COURT
: OKAY.

    [DEFENSE COUNSEL]: _ WHETHER HE'S TO TESTIFY.

    THE COURT: THAT'LL BE FINE.
    On two occasions, out of the presence of the jury, trialcounsel spoke of his frustration with defendant falling asleep. Notably, during defendant's presentation of evidence, Michael Smith, a witness for defendant and the friend with whom defendant had been smoking crack cocaine on the date of his arrest, testified about defendant's sleeping disorder. Smith testified that defendant could not sleep in Smith's residence (but had to sleep in the storage shed behind the house) because of his nightmares and screaming. Smith explained that defendant was fine as long as he was working, but if he sat down, he would fall asleep. Smith stated that defendant fell asleep “all the time.”
    While it is uncontradicted that defendant had trouble staying awake during the trial, the trial court inquired about the nature of defendant's disorder and made various inquiries of defendant to discern his mental capacity. There is no showing that defendant's sleeping during trial rendered him unable “'to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed.'” See Propst, 274 N.C. at 70, 161 S.E.2d at 566 (quoting 21 Am. Jur. 2d, Crimal Law § 63). Accordingly, we conclude that the trial court properly proceeded with the trial, and this assignment of error is overruled.
    By his second assignment of error, defendant argues that the trial court “erred by failing to dismiss the charge of habitual felon and by sentencing the Defendant to a term of imprisonment of 70 months minimum to 93 months maximum on the ground that thejudgment imposed by the court constituted a cruel and unusual punishment[,] . . . in violation of the Eighth and Fourteenth Amendment to the United States Constitution and Article I, Section 27 of the North Carolina Constitution.” We disagree.
    This Court has repeatedly held that the Habitual Felon Act does not violate a defendant's Eighth and Fourteenth Amendment rights. See State v. Hensley, 156 N.C. App. 634, 639, 577 S.E.2d 417, 421 (noting that “[o]nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment” and that “our Supreme Court reject[ed] outright the suggestion that our legislature is constitutionally prohibited from enhancing punishment for habitual offenders as violations of constitutional strictures dealing with . . . cruel and unusual punishment,” disc. review denied, 357 N.C. 167, 581 S.E.2d 64 (2003)(internal quotation marks omitted). In Hensley, the Court noted that "[d]efendant was not sentenced for 90 to 117 months in prison because he pawned a caliper obtained by false pretenses for approximately twenty dollars. Defendant was sentenced to that term because he committed multiple felonies over a span of almost twenty years and is an habitual felon." Id. Likewise, defendant's sentence is similarly premised on his prior felony convictions. This assignment of error is overruled.
    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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