Appeal by defendant from a judgment entered 17 June 2005 by
Judge Henry E. Frye, Jr., in Guilford County Superior Court. Heard
in the Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Special Counsel Caroline
Farmer, for the State.
Allen W. Boyer for defendant-appellant.
Michael Antonio McWhite (defendant) was convicted following a
jury trial of the Class H felony of habitual misdemeanor assault.
The conviction was based on the jury's verdict of guilty on the
charge of misdemeanor assault on a female and defendant's
stipulation during the trial to the prior misdemeanor convictions
alleged in the special indictment charging him with habitual
misdemeanor assault in 04 CRS 24257. See N.C. Gen. Stat. §§ 14-
33.2, 15A-928(c) (2005). Defendant then pleaded guilty to having
obtained habitual felon status and was sentenced to an active
prison term of 115 to 147 months. He gave notice of appeal in open
At trial, the State introduced evidence that defendant
threatened and attacked his pregnant girlfriend, Janet Brown, on 7
April 2004, throwing her to the floor, kicking her in the stomach,
and punching her in the face. In addition to sustaining a black
eye in the assault, Brown experienced vaginal bleeding and went
into pre-term labor.
Having presented its evidence of the charge of assault on a
female, the prosecutor asked the trial court to arraign defendant
on the charge of habitual misdemeanor assault, in order to
determine if the State would need to offer additional evidence of
defendant's prior misdemeanor convictions. See
N.C. Gen. Stat. §
15A-928(c) (2005). Defense counsel informed the court that if we
reach that point, he will agree to the habitual misdemeanor
assault. Notwithstanding counsel's concession, the court formally
arraigned defendant, advising him of the habitual misdemeanor
assault charge and reciting the five prior misdemeanor convictions
alleged in the indictment.
(See footnote 1)
The court then engaged defendant in
the following colloquy:
THE COURT: . . . If you admit [the prior
misdemeanor convictions], then for purposes of
trial the jury is not going to be informed of
these admissions. Only they will be submitted
on whether you're guilty or not guilty ofassault on a female. However, if you deny
[the convictions] or remain silent of it, then
[the] State has to prove these matters before
the jury and they have to hear that evidence
at some point during this trial. . . . [D]o
you want to admit these elements as far as the
five convictions that they allege? Do you
want to admit those, deny those, or what?
[DEFENDANT]: I'll admit those.
THE COURT: . . . Let the record reflect that
for purposes of this trial pursuant to 15A-928
subsection (c)[, the] statute indicates if the
defendant admits the previous convictions,
that element of the offense charged in the
indictment or information is established. No
evidence in support thereof may be adduced by
the State. . . . [F]or purposes of this trial
the jury will only be submitted the charge and
one count of assault on a female.
Upon defendant's admission, the prosecution rested its case.
The jury found defendant guilty of assault on a female. Based
on defendant's admission to the misdemeanor convictions alleged in
the second count of the indictment, the trial court announced that
the conviction is elevated to a conviction of habitual misdemeanor
assault, Class H felony.
The trial court then turned its attention to the habitual
felon indictment in 04 CRS 24863. After defendant's counsel
indicated his intention to admit the charge, the trial court
recited the three prior felony convictions alleged in the
indictment and asked defendant directly if he admitted them. When
defendant affirmed his admission, the court instructed the
prosecutor that there still has to be a plea arrangement on the
charge. The court conducted a plea hearing in full accordance with
N.C. Gen. Stat. § 15A-1022(a) (2005), which included the followingexchange with defendant:
THE COURT: [Defendant], you understand that
you are pleading guilty to two charges _
habitual misdemeanor assault, a Class H
felony; and habitual felon, which is a Class C
felony, which could carry up to 261 months in
prison. . . . Do you understand that?
[Defendant]: Yes, sir.
Although defendant purported to plead guilty to both habitual
misdemeanor assault and habitual felon status, his guilty plea to
habitual misdemeanor assault was superfluous, inasmuch as he had
already been convicted of this charge at the jury trial.
The court accepted defendant's guilty plea and sentenced him
as an habitual felon. The judgment entered by the court on 16 June
2005 records convictions for both habitual misdemeanor assault and
assault on a female, in addition to habitual felon status.
In his first assignment of error on appeal, defendant claims
the trial court erred by accepting his admission to the five prior
misdemeanors used to support his habitual misdemeanor assault
conviction without engaging in the full colloquy required for a
guilty plea under N.C. Gen. Stat. § 15A-1022(a). Because the
procedures for entry of guilty plea under N.C. Gen. Stat. § 15A-
1022(a) do not apply to an admission of the recidivist element of
habitual misdemeanor assault, we disagree. See State v. Artis
N.C. App. 668, 679-80, 622 S.E.2d 204, 211-12 (2005), disc. review
, 360 N.C. 365, 630 S.E.2d 188 (2006).
The criminal law of this State contains two distinct types of'habitual' classifications. State v. Burch
, 160 N.C. App. 394,
396, 585 S.E.2d 461, 462 (2003). The first type, which creates
the crimes of habitual impaired driving and habitual misdemeanor
assault, treats the fact of defendant's prior convictions as an
element of the substantive offense. Id.
at 396, 585 S.E.2d at 462-
N.C. Gen. Stat. §§ 14-33.2, 20-138.5 (2001)). Under
N.C. Gen. Stat. § 15A-928(b), the State must file a special
indictment or information charging defendant as an habitual
offender. N.C. Gen. Stat. § 15A-928(b) (2005). Before the State
rests its case at trial, the court must arraign defendant on the
special indictment or information, allowing him the opportunity to
admit the habitual element of the offense, thereby withholding
the fact of his previous offenses from the jury. N.C. Gen. Stat.
§ 15A-928(c) (2005). If the defendant admits the prior
convictions, the State may not present evidence thereof. N.C. Gen.
Stat. § 15A-928(c)(1) (2005). Moreover, the jury is not informed
that defendant is charged as an habitual offender and instead
enters a verdict on the misdemeanor offense charged in the
principal pleading. Id.
The second type of habitual classification appears in this
state's Habitual Felon Act. See
N.C. Gen. Stat. §§ 14-7.1, -7.7
(2005) (defining certain repeat offenders as habitual felons, and
violent habitual felons). These provisions treat the defendant's
recidivism as a status distinct from the predicate felony which
must be charged in a separate indictment. Burch
, 160 N.C. App. at
396, 585 S.E.2d at 462 (citing State v. Penland
, 89 N.C. App. 350,365 S.E.2d 721 (1988)); N.C. Gen. Stat. §§ 14-7.3, -7.9 (2001).
The procedures for a prosecution of these status offenses are as
The defendant must first be tried before a
jury on the principal felony. During the trial
on the principal felony, it may not be
revealed to the jury that the defendant is
being charged as a habitual felon. Only in the
event that the jury finds a defendant guilty
of the principal felony will the habitual
felon indictment be presented to the jury.
Trials involving habitual felons and
violent habitual felons are bifurcated, with
two separate trials before the same jury; the
first on the principal felony and the second
on the habitual felon status. The defendant
may not stipulate to habitual felon status,
but must either plead guilty or be found
guilty by a jury.
Here, the trial court fully complied with N.C. Gen. Stat. §
15A-928(c) in trying defendant on the charge of habitual
misdemeanor assault. Before the close of the State's case, the
court arraigned defendant on the special indictment, accepted his
admission to the prior convictions alleged therein, and submitted
only the charge of assault on a female to the jury. Defendant's
admission was a binding stipulation of fact as to a single element
of the charged offense. See Artis
, 174 N.C. App. at 680, 622
S.E.2d at 212 (A stipulation by defense counsel that defendant has
been convicted of the prior misdemeanors alleged in an indictment
charging habitual misdemeanor assault is sufficient to establish
the prior conviction element of that charge[.]); Burch
, 160 N.C.
App. at 397, 585 S.E.2d at 463. Contrary to his claim on appeal,defendant did not plead guilty to habitual misdemeanor assault but
was found guilty by the jury.
After defendant's conviction for the felony of habitual
misdemeanor assault, the court proceeded to the second stage of the
bifurcated proceedings contemplated by the Habitual Felon Act. In
accepting defendant's guilty plea to violent habitual felon status,
the court followed the applicable procedures detailed in N.C. Gen.
Stat. § 15A-1022(a). Accordingly, we find no error in defendant's
conviction or his guilty plea.
In his second argument, defendant asserts that his sentence of
115 to 147 months is so grossly disproportionate to his prior and
instant crimes as to violate the Eighth Amendment's ban on cruel
and unusual punishment. He notes that his five prior misdemeanors
included only two prior assaults and were recorded on a single
date, 11 April 1996. Defendant further observes that the maximum
sentence for his instant offense of assault on a female is 150
days, and that he committed the three prior felony convictions
alleged in the habitual felon indictment between 1995 and 1997.
This Court has previously considered an Eighth Amendment
challenge to a sentence imposed for the offense of habitual
misdemeanor assault committed by a defendant who had obtained the
status of habitual felon. State v. McDonald
, 165 N.C. App. 237,
241-42, 599 S.E.2d 50, 52-53, disc. review denied
, 359 N.C. 195,
608 S.E.2d 60-61 (2004), cert. denied
, 544 U.S. 988, 161 L. Ed. 2d
748 (2005). Finding no violation of the constitutional prohibitionof cruel and unusual punishment, we rejected the defendant's
argument that his punishment bore no reasonable proportion to the
assault which was the basis of his conviction:
In light of the repetitive nature of
defendant's offense and his lengthy criminal
history, the sentence imposed was not grossly
disproportionate to his crime. . . . Here,
defendant was not sentenced to 120 to 153
months in prison solely because of his one
assault . . . . Defendant was sentenced based
on his history of repeated assaults,
misdemeanor convictions, and his prior felony
convictions, all of which occurred within a
fifteen year time span. Defendant's
assignment of error is overruled.
(internal citation omitted
). We discern no meaningful
distinction between defendant's criminal history and that of the
defendant in McDonald
. Despite the fact that defendant's
conviction date for five misdemeanor charges was the same, the
offenses took place over the course of three years and the
misdemeanor assaults were committed two years apart, in 1992 and
1994. Moreover, defendant was convicted as an habitual felon,
having been convicted of three prior felonies. Because of
defendant's history of repeated assaults, misdemeanor convictions
and prior felonies, and based on the reasoning in McDonald
, we hold
the trial court's sentence was not grossly disproportionate to his
crime. This assignment of error is overruled.
Although the issue is not raised by defendant, we note that
the judgment entered in this cause reflects defendant's convictions
for two substantive offenses: (1) habitual misdemeanor assault and
(2) assault on a female. As discussed above, defendant'smisdemeanor offense was an element _ or lesser included offense -
of the greater substantive offense of habitual misdemeanor assault.
N.C. Gen. Stat. § 14-33.2 (2005) (setting forth
elements of habitual misdemeanor assault); cf. State v. Williams
153 N.C. App. 192, 194-95, 568 S.E.2d 890, 892 (2002) (The absence
of any indictment alleging violation of N.C.G.S. § 14-33.2,
habitual misdemeanor assault, renders the principal indictment in
this case one which charged defendant with only the misdemeanor of
assault on a female.), disc. review improvidently allowed
N.C. 45, 577 S.E.2d 618-19 (2003). Therefore, we vacate the
conviction for assault on a female. See State v. Sanderson
N.C. App. 604, 610, 300 S.E.2d 9, 14 (holding that where defendants
were convicted of both the greater and lesser included offenses,
convictions for the lesser included offenses should be vacated),
disc. review denied
, 308 N.C. 679, 304 S.E.2d 759 (1983). The
cause is remanded to the trial court for resentencing on
defendant's substantive felony of habitual misdemeanor assault, as
enhanced by his habitual felon status. See State v. Hunter
N.C. App. 402, 413, 420 S.E.2d 700, 707 (1992), cert. denied
N.C. 347, 426 S.E.2d 711-12 (1993), overruled in non-pertinent
, State v. Pipkins
, 337 N.C. 431, 446 S.E.2d 360 (1994).
No error as to conviction for habitual misdemeanor assault and
habitual felon status; vacated as to conviction for assault on a
female; remanded for resentencing.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).