An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1324


Filed: 05 July 2006


         v.                        Guilford County
                                No. 01CRS105092

    On a writ of certiorari from judgment entered 27 August 2002 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 19 June 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for the State.

    Bryan Gates for defendant-appellant.

    STEELMAN, Judge.

     Defendant was convicted of sale of heroin and of being an habitual felon. He was sentenced to an active term of imprisonment of 107 months to 138 months. His petition for a writ of certiorari was allowed by this Court on 20 May 2004.
    In defendant's first argument, he contends that the indictment charging him with sale of heroin is fatally defective because the boxes for “A True Bill” and “Not a True Bill” are both marked, thereby making it impossible to determine whether the grand jury returned a true bill. We disagree.
    The converse situation was presented in State v. Hall, 131 N.C. App. 427, 508 S.E.2d 8 (1998), in which neither box on the indictment was checked. This Court, relying upon the presumptionof validity of trial court proceedings, held that the defendant failed to carry his burden of showing prejudicial error. Id. at 430, 508 S.E.2d at 11. Defendant has not carried this burden in the case at bar. A close examination of the indictment shows that the grand jury foreman initially checked the box marked “NOT A TRUE BILL” and then marked an “X” through it and her initials adjacent to the “X” mark. All other marks appearing on the form are in the form of check marks instead of “X.” Moreover, during his opening argument to the jury, defendant's counsel, with defendant's consent, conceded that defendant was guilty of the sale and delivery charge. Defendant may not claim he was prejudiced by this apparent scrivener's error. This argument is without merit.
    In his second argument, defendant contends that the sentence imposed by the court exceeds that which is authorized by law. We disagree.    
    He argues that pursuant to N.C. Gen. Stat. § 90_95(b)(1), a sentence imposed for a controlled substance offense “may be increased only” by certain conditions listed in the statute, none of which apply here. Defendant's argument fails. Defendant was convicted not only of sale of heroin but of habitual felon status. When a person is convicted of habitual felon status, he must be sentenced as a Class C felon even though the classification of the substantive felony offense to which the habitual felon charge is attached is of a lesser class. N.C. Gen. Stat. § 14-7.6 (2005); State v. Dammons, 159 N.C. App. 284, 297, 583 S.E.2d 606, 614, disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert.denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004). This argument is without merit.
    Because defendant has not argued his other assignment of error in his brief, it is deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2005).
    Judges McCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

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