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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1409


Filed: 05 June 2007


         v.                        Cabarrus County
                                No. 05 CRS 19509
                                    06 CRS 1521

    Appeal by defendant from judgment entered 25 May 2006 by Judge Michael E. Beale in Cabarrus County Superior Court. Heard in the Court of Appeals 04 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Lisa Y. Harper, for the State.

    J. Clark Fischer for defendant-appellant.

    STEELMAN, Judge.

     After a jury found him guilty of possession of heroin and drug paraphernalia, defendant pled guilty to habitual felon status. The court sentenced defendant to imprisonment from the mitigated range to a minimum term of 96 months and a maximum term of 125 months.
    Defendant's sole argument on appeal is that the imposition of a lengthy sentence as an habitual felon for possession of less than .1 gram of heroin constituted cruel and unusual or excessive punishment. This Court has previously rejected similar arguments that imposition of a lengthy term as an habitual felon for commission of a minor felony constituted cruel and unusual, excessive or disproportionate punishment. See, e.g., State v.Flemming, 171 N.C. App. 413, 417-18, 615 S.E.2d 310, 313 (2005); State v. Clifton, 158 N.C. App. 88, 95-96, 580 S.E.2d 40, 45-46, cert. denied, 357 N.C. 463, 586 S.E.2d 266 (2003). We are bound by those decisions. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
    Defendant cites this court to a decision by a superior court judge which set aside an habitual felon conviction based upon due process, equal protection and cruel and unusual punishment. While this court is bound by its own decisions, it is not bound by decisions of a trial court. Defendant's argument is without merit.
    We further note that defendant asserts that the trial court committed plain error in sentencing defendant. Plain error is applicable only to jury instructions and evidentiary issues, State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), and is not applicable to sentencing matters.
    Judges HUNTER and MCCULLOUGH concur.
    Report per Rule 30(e).

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