An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-552


Filed: 2 January 2007


     v .                                  Sampson County
                                         No. 05CRS51367

    Appeal by defendant from judgments entered 5 January 2006 by Judge Thomas D. Haigwood in Sampson County Superior Court. Heard in the Court of Appeals 6 December 2006.

    Attorney General Roy Cooper, by Special Counsel Caroline Farmer, for the State.

    John T. Hall for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals from a jury verdict of guilty of one count of felonious breaking and entering and one count of felonious larceny. We determine there was no error.

    Agnes Maybelle Chevalier (“defendant”) was arrested on one count of felony breaking and entering, one count of felony larceny, and one count of felony possession of stolen property. These three charges were consolidated in a true bill of indictment. Another true bill of indictment was submitted under the same file number charging defendant with habitual felon status. The habitual felon indictment was labeled as an “ancillary” indictment. The State's evidence presented at trial tended to show the following:    On 4 April 2005, James Owens lived with his uncle, William Owens. When James arrived home from work that day, he discovered the house door kicked in and defendant inside his home without his permission. She had personal property of William Owens in her hands. Defendant fled the scene after being confronted by James.
    Willie Everette Jones, Jr., of the Sampson County Sheriff's Office conducted a photographic lineup. James Owens selected defendant out of the photographs and defendant was arrested.
    On 12 September 2005, the State obtained a true bill of indictment for felonious breaking and entering, felonious larceny, and felonious possession of stolen goods. The State also obtained an indictment charging defendant with the status of habitual felon on the same date and case file number. On 5 December 2005, the State repeated the process, obtaining two new true bills in the same file number for the same allegations.
    A jury found defendant guilty of felonious breaking and entering and felonious larceny, but not guilty of felonious possession of stolen property. Following the jury verdict, and in the absence of the jury, the trial judge personally addressed defendant to properly determine whether or not she had attained habitual felon status. Defendant pled guilty to having attained habitual felon status.
    Defendant appeals.


    Defendant contends the factual basis was insufficient for the trial court to accept defendant's guilty plea for habitual felon status. We disagree.
    Habitual felon status is acquired when any person has been convicted of or pled guilty to three felony offenses in any federal or state court or combination thereof. N.C. Gen. Stat. § 14-7.1 (2005). The North Carolina General Statutes state that a judge may not accept a plea of guilty without first determining there is a factual basis for the plea. N.C. Gen. Stat. § 15A-1022(c) (2005).
        This determination may be based upon information including, but not limited to:

                (1) A statement of the facts by the prosecutor.

                (2)    A written statement of the defendant.

                (3)    An examination of the presentence report.

                (4)    Sworn testimony, which may include reliable hearsay.

                (5)    A statement of facts by the defense counsel.

Id. Our Supreme Court stated that any information used by the trial judge to determine that a factual basis does exist for acceptance of a plea must be contained in the record on appeal so that an appellate court can examine that basis for acceptance of the plea. State v. Sinclair, 301 N.C. 193, 198, 270 S.E.2d 418, 421 (1980).
    In State v. Dickens, 299 N.C. 76, 76, 261 S.E.2d 183, 184 (1980), the defendant was charged with eight counts of issuingworthless checks and subsequently entered a plea of guilty to each of the charges. In documenting the prior actions of the trial court, our Supreme Court noted that:
            Before accepting defendant's pleas of guilty, the trial court personally addressed defendant to ascertain if the guilty pleas were freely, voluntarily and understandingly made. From the answers provided by defendant to the questions enumerated on the “Transcript of Plea, AOC-L, Form 290,” the court made findings of fact (1) that there was a factual basis for the entry of the pleas; (2) that defendant was satisfied with his counsel; and (3) that defendant's pleas were the informed choice of defendant and made freely, voluntarily and understandingly. Upon these findings the court concluded that defendant's pleas of guilty should be accepted by the court and ordered that the record so indicate.

Id. at 76-77, 261 S.E.2d at 184. Our Supreme Court stated that sufficient information existed to support a factual basis for the trial court to accept the guilty plea. Id. at 82, 261 S.E.2d at 187. The Court stated that the information in the record that the defendant had been previously convicted of the offenses in district court, coupled with the defendant admitting to being actually guilty of the charges in the transcript of plea, was “an abundance of information . . . to constitute a factual basis for the pleas of guilty.” Id. The Court noted the defendant's answer to a question in the transcript of plea that he was “in fact guilty” of the charges. Id. at 80, 261 S.E.2d at 186.
    Here, the trial court had a sufficient factual basis to support acceptance of the plea. The record contains a transcript of plea which includes defendant's affirmative responses toquestions including, “Do you understand that you are pleading guilty to the charges shown on page two of the transcript?”; “Do you now personally plead guilty to the charge I just described?”; and “Are you in fact guilty?” In addition, at the end of the transcript of plea there is a section which states that defendant's answers have created a factual basis for the entry of the plea. Also, included in the record is the bill of indictment which gives descriptions of the prior convictions and the dates on which the corresponding offenses and convictions occurred. Thus, the trial court had a sufficient factual basis upon which to base its acceptance of defendant's guilty plea.
    Defendant's final two contentions rely on the assertion that the habitual felon indictment superseded the underlying felony indictments. We disagree.
    “The indictment charging the defendant as an habitual felon shall be separate from the indictment charging him with the principal felony.” N.C. Gen. Stat. § 14-7.3 (2005). We have stated:
        [I]t makes no difference whether defendant is charged with the underlying felony and with habitual felon status in separate bills of indictment, or in separate counts of the same bill of indictment. Either method accomplishes the purpose of an indictment, i.e., to notify the defendant of the charges against him so that he may prepare his defense, and to enable the court to pronounce judgment in the event he is convicted.

State v. Young, 120 N.C. App. 456, 461, 462 S.E.2d 683, 686 (1995).    Here, the form of the indictments for habitual felon status and for the underlying felonies was proper. The bill of indictment for breaking and entering, larceny, and possession of stolen goods is on a completely different bill of indictment than that of the habitual felon status indictment. The indictment for the underlying felonies is labeled “indictment,” whereas the habitual felon indictment is labeled “ancillary indictment.” The habitual felon indictment did not supersede the underlying felony indictments. We believe these indictments accomplished the purpose of an indictment by giving defendant notice of the separate charges against him. Further, we do not believe defendant was prejudiced in any way. Accordingly, we disagree with defendant.
    No error.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

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