Converted WP file 061441-1

Appeal by defendant from judgment entered 11 May 2006 by Judge Larry G. Ford in Davidson County Superior Court. Heard in the Court of Appeals 23 May 2007.

Roy Cooper, Attorney General, by Jason T. Campbell, Assistant Attorney General, for the State.

Kevin P. Bradley for the defendant-appellant.

    ELMORE, Judge.

    Defendant Steven Orlando McIntosh was convicted by a jury of felony possession of cocaine and possession with intent to distribute marijuana. After his convictions, he admitted habitual felon status in accordance with a plea agreement. In exchange for defendant's admission of habitual felon status, the State dismissed a considerable number of other charges.
    At approximately 9 p.m. on 27 February 2005, defendant's probation officer and three police officers requested entry to defendant's home to check that defendant was not violating his probation. The probation officer testified that he had beenchecking on defendant at that particular address since 2003. While the officers were waiting on the porch outside the apartment, they smelled marijuana coming from within. A man who was not defendant answered the door and admitted the officers, telling them that defendant was in the bathroom. A second man was also present in the apartment. The probation officer testified that he had been to defendant's home approximately fifty times previously, and had never before seen the two men who were in defendant's home. Both men allowed the officers to pat them down, but the officers did not discover any controlled substances and let the men leave.
    Defendant remained in the bathroom for thirty to sixty seconds, repeatedly flushing the toilet. As they waited, the officers noticed numerous bags on the kitchen table, which were filled with marijuana and crack cocaine. The officers detained defendant once he emerged from the bathroom, and inspected the remainder of the house. They found more bags of marijuana and scales in the master bedroom, as well as marijuana in the living room. Defendant's shoes were positioned near a large bag of marijuana in the bedroom, “where it looked like somebody had been sitting on the bed and taken their shoes off.”
    There were two bedrooms in the apartment, and defendant claimed that he lived in the front bedroom and not the master bedroom where the drugs were found. The officers testified that the front bedroom contained a love seat and a crib filled with children's toys, but no bed. There were also “numerous, numerous pairs of new shoes in boxes” in the closet of the front bedroom. However, the master bedroom closet was also “slam packed full” of defendant's shoes. Defendant told the officers that all of the shoes were his. The apartment's only bed was in the master bedroom.
    Defendant first argues that he was denied effective assistance of counsel because his trial counsel neither requested a particular jury instruction, nor excepted to the instruction that was given. Defendant specifically argues that trial counsel should have requested or excepted “to the omission of [a] jury instruction that non-exclusive control over premises does not, by itself, permit an inference of possession of cocaine and marijuana found therein.”
    “In order to successfully challenge a conviction on the basis of ineffective assistance of counsel, defendant must demonstrate: 1) that his trial counsel's performance 'fell below an objective standard of reasonableness[;]' and 2) that this deficiency in performance was prejudicial to his defense.” State v. Lemonds, 160 N.C. App. 172, 177, 584 S.E.2d 841, 845 (2003) (quoting State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)) (alteration in original). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698 (1984).
    Accordingly, we turn first to the question of whether trial counsel's performance fell below an objectionable level of reasonableness.     At the conclusion of the State's evidence, defense counsel moved to dismiss and argued that defendant was not in exclusive control of the apartment, and not in constructive possession of the drugs. The prosecutor replied that the State did not contend that defendant was in exclusive possession of all of the drugs. The trial judge then asked, “[E]ven if it is nonexclusive your position is that there are other items or facts that made it come under the constructive possession?”, and the prosecutor answered in the affirmative. The judge read from State v. McNeil, 359 N.C. 800, 617 S.E.2d 271 (2005), and quoted the following language:
        contraband found in the premises is under the control of an accused, this fact in and of itself gives rise [to] an inference of knowledge and possession, which may be sufficient to carry the case to the jury on a charge of unlawful possession. However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.

(Emphasis added). The judge then stated that he had heard the evidence that there were other people in the apartment, as well as a child's bed, which indicated that someone besides defendant lived in the apartment. All of this suggested to the judge that defendant had nonexclusive possession of the apartment. He then addressed the prosecutor, “Now, would you tell the Court what other incriminating circumstances . . . you are going to contend?”
    The prosecutor went through a laundry list of evidence that he thought supported the inference of constructive possession, including: (1) “both police officers and [the] probation officerindicated before they ever set foot in that house they detected a strong odor of marijuana”; (2) “the evidence shows it was absolutely [defendant's] house, he had been supervised at that location for two years”; (3) the officers found defendant's receipt for rent, which listed only defendant's name as the lessor; (4) the controlled substances located at various locations within the apartment; (5) drugs, money, and a scale in plain view on the kitchen table; (6) defendant removed clothing from the main bedroom where most of the drugs were found; (7) defendant “told officers he had items in that room in close proximity to the large bag of marijuana, indicating an awareness and presence”; and (8) when the officers asked defendant if he wanted to put on his shoes before they took him into custody, defendant directed the officers to bring him a pair of shoes that were “a foot or two feet away from this large bag of marijuana.” At the conclusion of this evidence, the prosecutor argued that this evidence all indicated that defendant “was aware of [the drugs'] presence and aware to control its disposition or use.”
    After hearing defense counsel's counter arguments, the trial judge denied defendant's motion, concluding, “The State has to show incriminating circumstances. I think the State has shown enough to let the jury decide the facts.”
    Without objection, the trial court gave the North Carolina pattern jury instruction for constructive possession. N.C.P.I. - Criminal 104.41 Actual-Constructive Possession. The judge's instructions included the following:        A person has constructive possession of a substance if he does not have it on his person but is aware of its presence and has either by himself or together with others both the power and intent to control its disposition or use.

            A person's awareness of the presence of a substance and his power and intent to control its disposition or use may be shown by direct evidence or may be inferred from the circumstances. Now, if you find beyond a reasonable doubt that a substance was found in close proximity to a defendant, that would be a circumstance which, together with all other circumstances, you may infer that the defendant was aware of the presence of the substance and had the power and intent to control its disposition or use.

            However, the defendant's physical proximity, if any, to the substance, does not by itself permit an inference that the defendant was aware of its presence or had the power or intent to control its disposition or use. Such an inference may be drawn only from this and other circumstances which you find from the evidence beyond a reasonable doubt.

            Now, if you find beyond a reasonable doubt that a substance was found in certain premises and that the defendant exercised control over these premises, whether or not he owned them, this would be a circumstance from which you may infer that the defendant was aware of the presence of the substance and had the power and intent to control its disposition or use.

(Emphasis added). Defendant argues that this instruction was improper because it allowed the jury to infer that defendant had the power and intent to control the disposition and use of the drugs merely because they were found in his apartment. We disagree.
        In a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of nonexclusive,constructive possession is sufficient. Constructive possession exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the narcotics.

McNeil, 359 N.C. at 809, 617 S.E.2d at 277 (citations, quotations, and alterations omitted).
        Where contraband is found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.

Id. at 809-10, 617 S.E.2d at 277 (citations, quotations, and alterations omitted). Such incriminating circumstances may include “evidence placing the accused within close proximity to the controlled substance . . . .” State v. McNeil, 165 N.C. App. 777, 781, 600 S.E.2d 31, 34 (2004).
    Here, defendant was not in exclusive possession of the apartment, and therefore the State was required to show other incriminating circumstances before an inference of constructive possession, and therefore possession and control over the drugs, could be raised. The trial judge said as much, and the State presented other incriminating circumstances. This included evidence placing defendant within close proximity to the drugs: defendant, unshod, asked an officer to retrieve his shoes, which were resting next to a large bag of marijuana. Therefore, the inference that defendant had constructive possession of the drugswas properly raised. Because the State properly raised the inference of constructive possession, it was appropriate for the trial judge to give the jury instruction for constructive possession. That instruction specifically directed the jury to consider other circumstances apart from physical proximity to the drugs.
    The performance of defendant's trial counsel did not fall below an objective standard of reasonableness because the instructions given were the proper instructions under the circumstances. It was not unreasonable for trial counsel not to demand different instructions because the proper instructions had already been given. In addition, trial counsel made cogent arguments in response to the prosecutor's assertions that sufficient evidence had been presented to infer constructive possession. This assignment of error is therefore overruled.
    Defendant next argues that it was plain error for the trial judge to omit a jury instruction that non-exclusive control over premises does not, by itself, permit an inference of possession of cocaine and marijuana found therein. This argument is the same as defendant's first, although now it arrives wearing the cloak of judicial error.
    “In criminal cases, a question which was not preserved by objection noted at trial . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. 10(c)(4) (2007). Plain error is error “sofundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (citations omitted). As discussed above, the trial court gave the jury the proper instructions regarding constructive possession. Therefore, the trial court did not err by giving these instructions. Accordingly, we overrule this assignment of error.
    In his third argument, defendant argues that the record does not support his Alford plea, and that we should therefore vacate the judgment. We disagree.
    Admission to habitual felon status it not valid without “the necessary inquiries needed to establish a record of defendant's guilty plea.” State v. Bailey, 157 N.C. App. 80, 89, 577 S.E.2d 683, 689 (2003). “[A] trial court may not accept a defendant's plea of guilty as an habitual felon without first addressing the defendant personally and making the following inquiries of that defendant,” id. at 88, 577 S.E.2d at 689, which are listed in N.C. Gen. Stat. § 15A-1022(a):
        (1)    Informing him that he has a right to remain silent and that any statement he makes may be used against him;

        (2)    Determining that he understands the nature of the charge;

        (3)    Informing him that he has a right to plead not guilty;

        (4)    Informing him that by his plea he waives his right to trial by jury and his right to be confronted by the witnesses against him;
        (5)    Determining that the defendant, if represented by counsel, is satisfied with his representation;

        (6)    Informing him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences, and of the mandatory minimum sentence, if any, on the charge; and

        (7)    Informing him that if he is not a citizen of the United States of America, a plea of guilty or no contest may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

N.C. Gen. Stat. § 15A-1022(a) (2005). The record must show that defendant was aware of the direct consequences of his guilty plea for that plea to be acceptable. State v. Williams, 133 N.C. App. 326, 331, 515 S.E.2d 80, 83 (1999).
    Defendant admitted his status as a habitual felon only after being convicted for the two underlying felonies of possession of cocaine and possession of marijuana with the intent to distribute. The admission was made in the form of an Alford plea, “indicating that he was pleading guilty because he perceived it to be in his best interest but not admitting guilt.” State v. Wall, 167 N.C. App. 312, 313, 605 S.E.2d 205, 206 (2004) (citing North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970)). “[A]n 'Alford plea' constitutes a guilty plea in the same way that a plea of nolo contendere or no contest is a guilty plea.” State v. Alston, 139 N.C. App. 787, 792, 534 S.E.2d 666, 669 (2000) (citation and quotations omitted). “The judge must advise the defendant that ifhe pleads no contest he will be treated as guilty whether or not he admits guilt.” N.C. Gen. Stat. § 15A-1022(d) (2005).
    Immediately before defendant's admission, the trial court did not read the caveat that defendant would be treated as guilty, even though he did not admit guilt. However, the trial court had explained this caveat to defendant earlier in the record:   (See footnote 1) “[Y]ou know what no contest is, you are not admitting that you are guilty but we will treat you as being guilty, but you don't have to admit that you are guilty, they will allow you to plead to that.” Defendant responded in the affirmative. The trial court made all of the inquiries required by N.C. Gen. Stat. § 15A-1022(a), and defendant's responses indicate that defendant was aware of the direct consequences of his plea. The record reflects that defendant “admitted” his habitual felon status several times. Therefore, we hold that defendant's Alford plea is properly supported by the record.
    Finally, defendant argues that the trial judge erred by imposing consecutive sentences instead of concurrent sentences. This argument is without merit. During sentencing, the State requested that defendant receive consecutive sentences, and defense counsel argued that defendant should receive concurrent sentences. The trial judge stated, “I feel I have to impose consecutive.” Hereasoned, “I am going to, Mr. McIntosh, because you didn't put the jury through it which anyway they would have found you were a habitual felon.” He continued, “I will give you some credit for that but ordinarily I would sentence you to a minimum of 151 and a maximum of 191 months in each case to run consecutively in this case, each one of them.” Instead, the judge sentenced defendant to a minimum of 90 and a maximum of 125 months in each case to run consecutively.
    Defendant urges us to interpret the words, “I feel I have to impose consecutive,” as a misinterpretation of the law by the trial judge. It was within the trial judge's discretion to impose consecutive sentences or concurrent sentences, and defendant contends that the judge's words demonstrate that the judge thought that he had no discretion in the matter. Defendant cites State v. Partridge in support of this contention:
        when a trial court has failed to exercise its discretion regarding a discretionary matter and has ruled on it under the mistaken impression it is required to rule a particular way as a matter of law, its holding must be reversed and the matter remanded for the trial court to exercise its discretion[.]

110 N.C. App. 786, 788, 431 S.E.2d 550, 552 (1993) (quoting Lemons v. Old Hickory Council, 322 N.C. 271, 277, 367 S.E.2d 655, 658 (1988)) (alteration omitted). Indeed, in Partridge we reversed a verdict because the trial judge mistakenly said, “I can't run those concurrent. I can't touch that. Only the Court of Appeals or North Carolina Supreme Court can change that.” Id. at 787, 431 S.E.2d at 551.    Here, the trial judge allowed defendant to argue why he should receive concurrent sentences, and then, after deciding to impose consecutive sentences, reduced the normal sentences to give defendant credit for his gift of judicial economy. Contrary to the trial judge in Partridge, the trial judge in this case understood that defendant's sentence was within his discretion. He exercised that discretion by imposing consecutive sentences of shorter duration.
    Accordingly, we hold that defendant received a trial free from error.
    No error.
    Judges HUNTER and GEER concur.
    Report per 30(e).

Footnote: 1