Converted WP file 041464-1

Appeal by defendant from judgment entered 19 March 2004 by Judge Robert H. Hobgood in Superior Court, Wake County. Heard in the Court of Appeals 30 May 2005.

Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.

Bruce T. Cunningham, Jr. for defendant-appellant.

McGEE, Judge.

    Defendant was charged with possession with intent to sell and deliver cocaine and with attaining habitual felon status. The State's evidence at trial tended to show that on 10 July 2003, Sergeants Theo Burnette and Lori Johnson of the Holly Springs Police Department were on patrol when they observed defendant's vehicle stall in the middle of Holly Springs Road. The officers pulled their patrol vehicle over to determine if defendant was having vehicle problems.
    Sergeant Johnson, who was still seated in the patrol vehicle, noticed that after defendant exited the vehicle, defendant walked to the passenger's side front wheel area and appeared to putsomething inside the wheel well area. Sergeant Johnson exited the patrol vehicle, walked to the front of defendant's vehicle, and examined the wheel well area. Sergeant Johnson felt something plastic. A canine unit arrived and, upon a search the exterior of defendant's vehicle, a plastic baggie containing 1.9 grams of crack cocaine was removed from the wheel well.
    The trial court submitted to the jury the charges of possession of cocaine with intent to sell and deliver and the lesser included offense of possession of cocaine. After the jury found defendant guilty of possession of cocaine, defendant moved to dismiss his habitual felon indictment. Relying on our Court's decision in State v. Jones, 161 N.C. App. 60, 588 S.E.2d 5 (2003), defendant argued that because he had been found guilty of possession of cocaine, a misdemeanor, the habitual felon indictment could not attach. The trial court denied the motion and defendant admitted his habitual felon status. The trial court sentenced defendant as a Class C felon to 93 to 121 months in prison. Defendant appeals.
    Defendant first contends the trial court erred by sentencing him as an habitual felon. Defendant argues that our Supreme Court's opinion in State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004), created an ambiguity as to "whether [possession of cocaine is a] misdemeanor like the legislature said, or a felony like Jones . . . holds[.]" On the contrary, our Supreme Court clearly stated that N.C. Gen. Stat. § 90-95(d)(2) classifies possession of cocaine as a felony. Id. at 476, 598 S.E.2d at 134. Defendant'scontention is therefore without merit.
    Defendant next argues that his term of 93 to 121 months imprisonment under the Habitual Felon Statute constitutes cruel and unusual punishment. Defendant contends that there is "gross disproportionality between the sentence and the crime."
    The issue of whether the Habitual Felon Act violates a defendant's Eighth and Fourteenth Amendment rights has been reviewed and rejected by this Court. In State v. Hensley, 156 N.C. App. 634, 639, 577 S.E.2d 417, 421, disc. review denied, 357 N.C. 167, 581 S.E.2d 64 (2003), the defendant argued that his sentence to a term of imprisonment of a minimum of 90 months to a maximum of 117 months under the Habitual Felon Act was disproportionate to the crime of obtaining property by false pretenses. Id. at 636, 577 S.E.2d at 419. This Court stated:
        "Only 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." Further, 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" . . . . The sentence imposed . . . under the habitual felon laws is not so "grossly disproportionate" so as to result in constitutional infirmity.
Id. at 639, 577 S.E.2d at 421 (internal citations omitted). In upholding the defendant's sentence in Hensley, we noted that the defendant was sentenced to the term of 90 to 117 months in prison "because he committed multiple felonies over a span of almost twenty years and is a habitual felon." Id.    This Court reaffirmed the holding in Hensley in State v. Clifton, 158 N.C. App. 88, 580 S.E.2d 40, cert. denied, 357 N.C. 463, 586 S.E.2d 266 (2003) and in State v. McDonald, 165 N.C. App. 237, 599 S.E.2d 50, disc. review denied, 359 N.C. 195, 608 S.E.2d 60 (2004). Like the defendant in Hensley, defendant in the case before us was sentenced to 93 to 121 months imprisonment because of his lengthy criminal history and the sentence imposed was not grossly disproportionate to his crime. Accordingly, the trial court did not violate defendant's Eighth and Fourteenth Amendment constitutional rights.
    Defendant finally argues the trial court erred in allowing the State to use his prior conviction of possession of a firearm by a felony as an underlying felony to support his habitual felon indictment because possession of a firearm by a felon is a status offense, rather than a substantive offense. This Court has held, however, that N.C. Gen. Stat. § 14-415.1(a) "creates a substantive criminal offense, complete and definite in its description." State v. Bishop, 119 N.C. App. 695, 698, 459 S.E.2d 830, 832, disc. review denied, 341 N.C. 653, 462 S.E.2d 518 (1995)(citing State v. McNeill, 78 N.C. App. 514, 337 S.E.2d 172 (1985)). This assignment of error is overruled.
    No error.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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