STATE OF NORTH CAROLINA
v. Greene County
No. 02 CRS 50814
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
James M. Bell, for defendant-appellant.
Upon remand from this Court, the trial court conducted a
resentencing hearing on 23 May 2005 and ultimately entered a
modified judgment on 30 June 2005. See State v. Wade, 168 N.C.
App. 731, 609 S.E.2d 497 (2005) (unpublished). Defendant
challenges the modified sentence imposed by the trial court. For
the reasons stated below, we affirm.
On 2 April 2003, a jury found Defendant guilty of felonious possession of stolen goods pursuant to a breaking or entering. Defendant then admitted his habitual felon status under a plea arrangement. After finding that Defendant had twelve prior record level points, the trial court classified him at prior record levelIV. The trial court found two mitigating factors and sentenced Defendant on 2 April 2003, to a mitigated-range term of ninety-six to 125 months imprisonment. Defendant appealed, and this Court found no error in his trial on appeal. Id.
Because two of Defendant's prior convictions (00 CRS 50457 and 99 CRS 7000 ) were improperly used both for indicting him as an habitual felon and for calculating his prior record level, this Court remanded the matter for resentencing. Id. In that unpublished opinion, this Court noted that Defendant had been convicted of three separate counts of felony possession of stolen goods (00 CRS 50457, 00 CRS 50468, and 00 CRS 50469) on the same date and that the trial court could have used either the second or third conviction for felony possession of stolen goods in calculating Defendant's prior record level rather than improperly reusing the conviction in 00 CRS 50457.
On 23 May 2005, the trial court conducted the resentencing hearing. After removing the two prior convictions (00 CRS 50457 and 99 CRS 7000 ) from Defendant's prior record worksheet as directed by this Court's mandate, the trial court on the basis of the State's evidence added two additional prior convictions (00 CRS 50468 and 02 CRS 6510 0 ) to the worksheet. Upon finding that Defendant now had ten prior record level points, the trial court again classified him at prior record level IV. The trial court then found two mitigating factors and resentenced Defendant on 23 May 2005, to a mitigated range term of eighty-four to 110 months imprisonment. On 30 June 2005, the trial court modified thejudgment to correct the amount of credit for time served. From the trial court's judgment, Defendant appeals.
On appeal, Defendant argues that the trial court (1) erred in adding two prior unused felonies to his prior record worksheet, and (2) lacked jurisdiction to sentence him as an habitual felon.
In his first argument, Defendant contends the trial court did not comply with this Court's mandate when it again classified him at prior record level IV. He argues the trial court misread the [o]pinion as a mandate to replace the improperly used convictions with other, previously unused convictions. He asserts the trial court should have only removed the two improper prior convictions (00 CRS 50457 and 99 CRS 7000 ) from the prior record worksheet, which would have resulted in a prior record level of III. We disagree.
As an initial matter, Defendant's argument is conclusory and lacks citations to authority. See N.C. R. App. P. 28(b)(6). Because Defendant has neither cited any authority nor stated any reason or argument in support of his assignment of error, it is deemed abandoned. Id. This Court nevertheless notes that [i]t has been established that each sentencing hearing in a particular case is a de novo proceeding. State v. Abbott, 90 N.C. App. 749, 751, 370 S.E.2d 68, 69 (1988). The trial court's determination of Defendant's prior record level here is supported by new evidence of prior convictions which the State introduced at the resentencing hearing. See State v. Mason, 125 N.C. App. 216, 224, 480 S.E.2d708, 713, disc. review denied, 346 N.C. 286, 487 S.E.2d 563 (1997). Defendant's argument is without merit.
In his remaining argument, Defendant contends the trial court lacked jurisdiction to sentence him as an habitual felon. He argues his habitual felon indictment was fatally defective because it incorrectly identified the county in which the predicate felony occurred. Defendant's argument is not persuasive.
The essential purpose of an habitual felon indictment is to give a defendant notice he is being charged as an habitual felon so he may prepare a defense as to having a charge of the three listed felony convictions. State v. Bowens, 140 N.C. App. 217, 225, 535 S.E.2d 870, 875 (2000), disc. review denied, 353 N.C. 383, 547 S.E.2d 417 (2001). Although the county in which the predicate felony occurred was misidentified in Defendant's habitual felon indictment, it is not an essential element of being an habitual felon. Id. Defendant was not prejudiced by the inclusion of the surplusage, for he had notice of the habitual felon charge against him, including the three felony convictions listed in the indictment, and of the State's intention to prosecute him as an habitual felon . Id. at 224-25, 535 S.E.2d at 875. Accordingly, the trial court properly submitted the habitual felon indictment to the jury.
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***