An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA05-1080

NORTH CAROLINA COURT OF APPEALS

Filed: 16 May 2006

STATE OF NORTH CAROLINA

v .                         Gaston County
                            Nos. 03 CRS 061988-89
BRIAN DEAN McCULLY

    Appeal by defendant from judgments dated 12 January 2005 by Judge W. Robert Bell in Superior Court, Gaston County. Heard in the Court of Appeals 19 April 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.

    Eric A. Bach for defendant-appellant.

    McGEE, Judge.

    Brian Dean McCully (defendant) was convicted on 12 January 2005 of habitual impaired driving and driving while license revoked. The trial court sentenced defendant to a term of nineteen months to twenty-three months in prison on the charge of habitual impaired driving, and to a consecutive term of forty-five days in prison on the charge of driving while license revoked. Defendant appeals.
    Defendant argues the trial court erred by failing to submit defendant's three prior convictions of impaired driving to the jury on the charge of habitual impaired driving. However, defendant stipulated to his three prior convictions, precluding the necessity of submitting the prior convictions to the jury.    N.C. Gen. Stat. § 20-138.5(a) (2005) states: "A person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within seven years of the date of this offense." Our Court has held that "the offense of habitual impaired driving as defined by G.S. § 20-138.5 constitutes a separate substantive felony offense which is properly within the original exclusive jurisdiction of the superior court." State v. Priddy, 115 N.C. App. 547, 548, 445 S.E.2d 610, 612, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994). An essential element of habitual impaired driving is a defendant's three or more prior convictions involving impaired driving. State v. Burch, 160 N.C. App. 394, 396, 585 S.E.2d 461, 463 (2003). The State must prove these convictions beyond a reasonable doubt. Id. at 396-97, 585 S.E.2d at 463.
    N.C. Gen. Stat. § 15A-928 applies to cases in which "the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter[.]" N.C. Gen. Stat. § 15A-928(a) (2005). The procedures set forth in N.C. Gen. Stat. § 15A-928 apply to prosecutions for habitual impaired driving. See State v. Jernigan, 118 N.C. App. 240, 243-45, 455 S.E.2d 163, 165-67 (1995). N.C. Gen. Stat. § 15A-928(c) (2005) provides as follows:
        After commencement of the trial and before the close of the State's case, the judge in the absence of the jury must arraign the defendant upon the special indictment or information,and must advise him that he may admit the previous conviction alleged, deny it, or remain silent. Depending upon the defendant's response, the trial of the case must then proceed as follows:

            (1) If the defendant admits the previous conviction, that element of the offense charged in the indictment or information is established, no evidence in support thereof may be adduced by the State, and the judge must submit the case to the jury without reference thereto and as if the fact of such previous conviction were not an element of the offense. The court may not submit to the jury any lesser included offense which is distinguished from the offense charged solely by the fact that a previous conviction is not an element thereof.

            (2) If the defendant denies the previous conviction or remains silent, the State may prove that element of the offense charged before the jury as a part of its case. This section applies only to proof of a prior conviction when it is an element of the crime charged, and does not prohibit the State from introducing proof of prior convictions when otherwise permitted under the rules of evidence.
    In the present case, defendant's counsel stipulated to defendant's three prior convictions as follows:
        [THE STATE]: And this is under the habitual impaired driving, 03 CRS 61988. . . . The defendant . . ., within seven years of this offense, has been convicted [of] three or more offenses involving impaired driving. The defendant has been previously convicted on June 4, 1997, of habitual impaired driving in Gaston County Superior Court under File Number 97 CRS 5419. Do you admit that previous conviction?

        [DEFENSE COUNSEL]: [Defendant] would, your Honor.

        [THE STATE]: Second: On November 20th, 1998, of habitual impaired driving in Gaston CountySuperior Court under File Number 98 CRS 19377. Does your client admit that prior habitual- impaired-driving conviction?

        [DEFENSE COUNSEL]: [Defendant] would, your Honor.

        [THE STATE]: And the third conviction, within seven years -- is on November 20th, 1998, of habitual impaired driving in Gaston County Superior Court under File Number 98 CRS 23726. Does your client admit that prior conviction for habitual impaired driving?

        [DEFENSE COUNSEL]: [Defendant] would, your Honor.

Therefore, the State did not present evidence regarding those convictions at trial.
    Defendant argues the stipulations were invalid because they were made by his attorney and the trial court did not personally address defendant. Defendant relies upon N.C. Gen. Stat. § 15A- 1022, which sets forth the procedures governing a trial court's acceptance of guilty pleas to criminal offenses. See N.C. Gen. Stat. § 15A-1022 (2005). In accepting a plea of guilty to a criminal offense, a trial court is required to personally address the defendant to insure that the guilty plea is knowingly and intelligently made. See Id.

    In Jernigan, our Court rejected an identical argument. Jernigan, 118 N.C. App. at 245, 455 S.E.2d at 166-67. Our Court stated that "it is clear that a defendant's attorney may stipulate to an element of the charged crime on behalf of the defendant, and that the stipulation may be entered and read to the jury." Id. at 245, 455 S.E.2d at 166. Our Court held "there is no requirement that the record show that the defendant personally stipulated tothe element or that the defendant knowingly, voluntarily, and understandingly consented to the stipulation." Id.
    We hold that defendant in this case stipulated to his three prior convictions, which were elements of the offense of habitual impaired driving. Therefore, the trial court did not err by not submitting defendant's prior convictions to the jury. We overrule defendant's assignments of error grouped under this argument.
    Defendant fails to set forth arguments pertaining to his remaining assignments of error and we deem them abandoned pursuant to N.C.R. App. P. 28(b)(6).
    No error.
    Judges HUNTER and STEPHENS concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***