Appeal by defendant from order and judgments entered 2 April
2007 by Judge Steve A. Balog in Guilford County Superior Court.
Heard in the Court of Appeals 15 April 2008.
Attorney General Roy Cooper, by Special Deputy Attorney
General Grady L. Balentine, Jr., for the State.
William D. Auman for defendant-appellant.
GEER, Judge.
Defendant Adrian Dominic Watkins appeals from the trial
court's order denying his motion to withdraw his guilty plea and
from judgments entered pursuant to that plea for second degree
murder and first degree burglary. The central issue in this appeal
is whether the trial court should have excluded, based on the
attorney-client privilege, portions of defendant's former
attorney's testimony at the hearing on his motion to withdraw his
plea. Based upon our review of the record, we have concluded that
certain portions of the challenged testimony related to
unprivileged communications, while, with respect to the remaining
testimony, defendant has failed to demonstrate prejudice even if
the disclosed communications were privileged. Moreover, we holdthat the trial court, based on the evidence before it, did not err
in denying defendant's motion to withdraw his plea. Accordingly,
we affirm.
Facts
In its order denying defendant's motion to withdraw his guilty
plea, the trial court found the following facts.
(See footnote 1)
On 15 March
2004, defendant was indicted for first degree murder and first
degree burglary stemming from a home invasion on 15 December 2003
by four men that resulted in the death of Anthony Graham. Mark
Hayes, an attorney certified to represent defendants in potential
capital cases, was appointed as defendant's primary counsel.
After the prosecutor provided discovery to defendant, Hayes
and defendant reviewed the discovery and discussed possible plea
bargains. The discovery received from the prosecutor included
confessions and proffers of testimony from defendant's co-
defendants. Having confirmed with the prosecutor that co-
defendants Robert Blair and Darius Rutledge had already confessed,
Hayes told defendant that he believed that they were pursuing plea
bargains and would testify that defendant was the "ringleader" if
defendant insisted on going to trial. Hayes then discussed with
defendant whether Hayes should attempt to negotiate a plea bargain
with the prosecutor.
The prosecutor subsequently submitted a set of 12 questions
for defendant to answer as a proffer of expected testimony shoulddefendant testify against his co-defendants. In a letter dated 24
November 2004, Hayes provided the prosecutor with defendant's
proffer of proposed testimony.
All four defendants involved in the home invasion had been
charged with first degree murder. While the other co-defendants
had also been charged with either armed robbery or attempted armed
robbery, defendant was charged with first degree burglary. By 28
March 2005, all of the co-defendants had pled guilty and agreed to
testify. Concerned that the co-defendants would turn on defendant,
Hayes went to the jail and discussed with defendant the plea
agreement offered by the prosecutor. Under the terms of the offer,
defendant would serve 220 to 273 months on a reduced charge of
second degree murder followed by 94 to 122 months for first degree
burglary. Defendant would have to testify truthfully regarding the
offenses, and the State would dismiss two unrelated charges of
possession with intent to sell cocaine. Defendant agreed to accept
the plea offer.
On 29 March 2005, defendant and Hayes appeared in Guilford
County Superior Court for entry of his guilty plea. After the
trial judge reviewed with defendant the terms of the plea
agreement, and the prosecutor summarized the factual basis for the
plea, defendant announced that he no longer wanted to accept the
plea arrangement. During defendant's exchange with the trial
judge, defendant stated: "I ain't completely innocent, but I ain't
completely guilty." After defendant rejected the plea, Hayes researched all of the
possible outcomes that could result if defendant continued to
refuse the offer and the case went to trial. On 30 March 2005,
Hayes discussed with defendant the possible charges and sentences
to which defendant would be exposed. At the end of the hour-long
meeting, defendant told Hayes that he wanted to accept the
prosecutor's offer.
On 31 March 2005, defendant returned to court with Hayes, and
the trial judge entered defendant's guilty plea. The trial judge
found that there was a factual basis for the plea; that defendant
was satisfied with his legal counsel; that defendant was competent
to stand trial; and that the plea was defendant's informed choice
and entered into freely, voluntarily, and understandingly. The
trial judge accepted defendant's plea and continued judgment.
Beginning on 21 June 2005, defendant expressed doubts about
his plea agreement. Over several months defendant told Hayes that
he no longer wanted to accept the deal as he considered a 26-year
sentence "just too much time." In response, Hayes reviewed with
defendant the favorable and unfavorable consequences of going
through with the deal or withdrawing his plea.
Co-defendant Fanton Cummings had originally pled guilty
pursuant to a plea agreement, but subsequently withdrew his plea
and was tried. During Cummings' trial, in April 2006, the question
arose as to whether defendant was willing to testify as required by
his plea agreement. When asked in open court whether he wished to
testify, defendant stated that he would testify. Neither the Statenor Cummings, however, called defendant to testify. Co-defendants
Blair and Rutledge testified, and Cummings was convicted of
Graham's murder.
The State prayed for judgment in connection with defendant's
guilty plea on 30 May 2006. At that time, Hayes reported to the
trial court that defendant wanted to withdraw his plea. Hayes also
sought to withdraw as defendant's counsel and moved to have
substitute counsel appointed to file the motion to withdraw
defendant's plea. The trial court granted Hayes' motion to
withdraw as counsel and appointed attorney Craig Blitzer to
represent defendant.
Defendant's motion to withdraw his plea was heard on 27 March
2007. In support of his motion, defendant testified that on 30 May
2005, the day after he first rejected the plea, Hayes visited him
in jail and told him that if he did not accept the offer, he would
be subject to being indicted on armed robbery and violent habitual
felon charges, which could result in more active time than the
proposed plea. Based on that discussion, defendant chose to enter
his plea on 31 March 2005. Defendant testified that, at some point
later, he called Hayes and told him that he wanted to withdraw his
guilty plea. He produced a letter at the hearing dated 10 May 2005
and addressed to Hayes that expressed his desire to withdraw his
plea. Defendant stated that Hayes told him that "if you don't want
to go through with the plea all you've got to do when [Cummings']
trial come[s] up [is] refuse to testify." Defendant testified thathe later wrote Hayes and asked him to file paperwork to withdraw
his appeal and get a trial date.
On cross-examination, defendant stated that he did not know
where Hayes had obtained the information contained in the 24
November 2004 proffer of expected testimony. When the prosecutor
attempted to ask defendant what information he provided Hayes,
defense counsel objected on the grounds of attorney-client
privilege, asserting that since defendant did not testify regarding
the letter during direct-examination, defendant could not be
questioned about it on cross-examination. The trial court
overruled the objection, reasoning that defendant had waived the
privilege. The trial court stated: "If [defendant]'s going to
testify about things his lawyer told him, he's going to have to
answer questions about their discussions and meetings."
When the State called Hayes to testify, defense counsel
renewed his objection based on attorney-client privilege. The
trial court, however, ruled that "[Hayes] may answer questions
about his relationship with the defendant and his conversations
with the defendant." The State offered into evidence the proffer
of defendant's proposed testimony, and Hayes testified that
defendant had given him the information contained in the letter.
Hayes explained that he visited defendant in jail with the
prosecutor's 12 questions, defendant gave him the answers to the
questions, Hayes typed up the answers in the form of a letter, he
reviewed the letter with defendant, and he then mailed the letter
to the prosecutor. The State also asked Hayes about what defendant had told him
during a conversation on 30 January 2004 about defendant's
involvement in the crimes. Over defendant's objection, Hayes
described in detail defendant's account of what occurred during the
home invasion, including defendant's specific role.
Hayes also testified that his notes indicated that defendant
did not express reluctance about whether to go through with the
plea agreement until 21 June 2005. Hayes reported that defendant
would waver back and forth, but that he never actually instructed
Hayes to move to withdraw his guilty plea. Hayes explained that
defendant repeatedly expressed concern about the length of his
sentences under the plea deal, but that after discussing the
consequences of withdrawing the plea, defendant would acknowledge
that it was the best deal he could get under the circumstances.
Hayes testified that during these discussions with defendant, he
would ask defendant about filing a motion to withdraw, but that
each time, defendant would tell him not to file the motion. Hayes
also stated that he had never seen the 10 May 2005 letter that
defendant testified he mailed to Hayes.
The only other witness to testify at the hearing was Detective
Michael Conwell. Detective Conwell testified that the initial
investigation indicated that four individuals were involved in a
home invasion that resulted in Graham's being shot in the back of
the head with a .12 gauge shotgun. When the crime scene was
searched, a cell phone was found underneath a window, and "the
window had the appearance of someone having made a very hasty exitthrough it . . . ." Detective Conwell called the last number
dialed and asked the woman who answered if she knew whose number it
was. The woman said that the cell phone belonged to someone named
Dominic Watkins. When the police first interviewed Natasha Mack,
who had participated in the planning of the robbery, she stated
that several men had come to her house on the day of the home
invasion, and one of them had red dreadlocks. When Detective
Conwell went to the jail to question defendant, who had been
arrested on an unrelated matter, defendant had red dreadlocks.
Detective Conwell also testified that co-defendants Blair and
Rutledge gave statements after being arrested in which they
asserted that defendant was involved in the home invasion, that
defendant had rented the U-Haul truck used in the robbery, and that
defendant was carrying a .40 caliber handgun during the crime.
The trial court entered its order denying defendant's motion
to withdraw his guilty plea on 2 April 2007. In the order, the
trial court made findings on each of the factors set out in
State
v. Handy, 326 N.C. 532, 539, 391 S.E.2d 159, 163 (1990), for
determining whether a motion to withdraw a plea should be allowed.
Specifically, the court found, based on defendant's statements in
court and his proffer of proposed testimony, that defendant had not
continuously maintained his innocence throughout the proceedings.
Based on the detective's testimony and the statements of co-
defendants Blair and Rutledge, which dovetailed with defendant's
proffered testimony, the court found that the State's proffer of
evidence against defendant was "far stronger than normally heard insimilar cases." The court further found that defendant had
"waffled" for almost two years, "[a] lengthy amount of time"
between entry of his plea and his motion to withdraw it. Finally,
the court found that "defendant had extremely competent and capable
counsel in Hayes . . . and later Blitzer"; that "[t]here [wa]s
absolutely no indication that defendant did not fully understand
the consequences of his plea"; and that there was no evidence of
haste, coercion, or confusion.
Based on these findings, the trial court concluded that
defendant had not demonstrated a "fair and just reason to allow the
defendant to withdraw his guilty plea." In addition, the trial
court found that even if defendant had met his burden, the State
had shown concrete prejudice to its case if defendant were allowed
to withdraw his plea in that all co-defendants had been sentenced
and thus could not be compelled to testify against defendant at
trial. The trial court, therefore, denied defendant's motion.
Consistent with the plea agreement, the trial court sentenced
defendant to a presumptive-range sentence of 220 to 273 months
imprisonment for the second degree murder charge, followed by a
presumptive-range sentence of 94 to 122 months imprisonment for the
first degree burglary charge. Defendant timely appealed to this
Court.
I
Defendant first challenges the admission of Hayes' testimony
at the hearing on his motion to withdraw his plea. Defendant
maintains that the testimony violated his attorney-clientprivilege. The attorney-client privilege applies to a particular
communication if:
(1) the relation of attorney and client
existed at the time the communication was
made, (2) the communication was made in
confidence, (3) the communication relates to a
matter about which the attorney is being
professionally consulted, (4) the
communication was made in the course of giving
or seeking legal advice for a proper purpose
although litigation need not be contemplated
and (5) the client has not waived the
privilege.
State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981).
The person asserting the privilege bears the burden of establishing
each of the five elements.
In re Investigation of Death of Eric
Miller, 357 N.C. 316, 336, 584 S.E.2d 772, 787 (2003). "If any one
of these five elements is not present in any portion of an
attorney-client communication, that portion of the communication is
not privileged."
Id. at 335, 584 S.E.2d at 786.
Defendant objected at the hearing to Hayes testifying at all
on the basis that his testimony would concern matters communicated
during the course of that representation. On appeal, defendant
limits his argument to those portions of Hayes' testimony regarding
the "intricate details of the crime itself that were allegedly
relayed to him by the defendant," including: (1) a 15 November 2004
meeting during which defendant allegedly provided Hayes with his
proposed testimony to be relayed to the prosecutor; and (2) a 30
January 2004 conversation Hayes had with defendant in which
defendant discussed his participation in the crimes. With respect to the 15 November 2004 discussion between
defendant and Hayes, the trial court found:
Hayes discussed with defendant seeking a plea
offer for defendant from the prosecutor. The
prosecutor had submitted twelve questions to
Hayes. On November 15, 2004 at the jail Hayes
obtained from defendant answers to these
questions. Hayes then put these answers into
the form of a letter to the prosecutor and
returned to the jail to review the draft with
the defendant. Defendant ratified the letter
as accurate. Hayes then sent the letter dated
November 24, 2004 to assistant district
attorney Kelly Thompson. This letter was a
written proffer of potential testimony that
defendant could offer at a trial of any co-
defendant(s) if a satisfactory plea
arrangement were agreed upon.
As defendant failed to assign error to this finding, it is binding
on appeal.
State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13
(2005),
cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523, 126 S. Ct.
1773 (2006).
The trial court's finding establishes that defendant disclosed
the information to Hayes on 15 November 2004 so that Hayes could
then provide it to the prosecutor in an attempt to negotiate a plea
arrangement. As our Supreme Court pointed out in
Miller, 357 N.C.
at 335, 584 S.E.2d at 786, "if it appears that a communication was
not regarded as confidential or that the communication was made for
the purpose of being conveyed by the attorney to others, the
communication is not privileged." Thus, because defendant provided
the 15 November 2004 information to Hayes precisely for the purpose
of conveying it to the prosecutor, that conversation was not a
"confidential" communication to which the attorney-client privilege
attached.
See State v. McIntosh, 336 N.C. 517, 524, 444 S.E.2d438, 442 (1994) (holding that attorney-client privilege did not
apply to attorney's statements to police as defendant had
"necessarily authorized" counsel to "inform" police that defendant
wanted to surrender).
Turning to the admission of Hayes' testimony about his 30
January 2004 conversation with defendant, even assuming _ without
deciding _ that the conversation was privileged and that defendant
did not waive the privilege, defendant has failed to demonstrate
that he was prejudiced by the disclosure. N.C. Gen. Stat. § 15A-
1443(a) (2007) provides that "[a] defendant is prejudiced by errors
relating to rights arising other than under the Constitution of the
United States when there is a reasonable possibility that, had the
error in question not been committed, a different result would have
been reached at the trial out of which the appeal arises." In this
appeal, therefore, defendant must demonstrate that if Hayes'
testimony regarding the 30 January 2004 conversation had not been
admitted, there is a reasonable possibility that the trial court
would have granted defendant's motion to withdraw his guilty plea.
We hold that defendant cannot make the necessary showing.
The testimony regarding the 30 January 2004 conversation
related to the strength of the State's proffer of evidence
regarding defendant's guilt. Apart from that conversation, the
trial court had before it the 24 November 2004 letter detailing
defendant's proposed testimony, which establishes defendant's guiltof murder and burglary,
(See footnote 2)
testimony regarding the confessions of co-
defendants substantially implicating defendant, and evidence of
defendant's cell phone being present at the crime scene under a
broken window. In light of this evidence, we conclude that there
is no reasonable possibility that the trial court would have
granted defendant's motion in the absence of the testimony of the
30 January 2004 attorney-client conference.
II
Defendant next claims that the trial court erred in refusing
to allow him to withdraw his guilty plea. Much of defendant's
argument on appeal hinges on his contentions regarding the
underlying facts. Since, however, defendant has not assigned error
to the trial court's findings of fact, they are binding on appeal
notwithstanding the presence of contrary evidence in the record.
Campbell, 359 N.C. at 662, 617 S.E.2d at 13. The trial court's
findings must nevertheless support its conclusions of law.
Id.
Where, as here, "'the defendant seeks to withdraw his guilty
plea before sentenc[ing], he is generally accorded that right if he
can show any fair and just reason.'"
Handy, 326 N.C. at 536, 391
S.E.2d at 161 (quoting
State v. Olish, 164 W. Va. 712, 715, 266
S.E.2d 134, 136 (1980)). The defendant bears the burden of proving
that the motion to withdraw the guilty plea is "supported by some
'fair and just reason.'"
State v. Robinson, 177 N.C. App. 225,229, 628 S.E.2d 252, 255 (2006) (quoting
State v. Meyer, 330 N.C.
738, 743, 412 S.E.2d 339, 342 (1992)). In evaluating whether the
defendant has demonstrated a fair and just reason for withdrawing
his or her plea, courts must consider the following factors:
"[1] whether the defendant has asserted legal
innocence, [2] the strength of the State's
proffer of evidence, [3] the length of time
between entry of the guilty plea and the
desire to change it, [4] and whether the
accused has had competent counsel at all
relevant times[,] [5] [m]isunderstanding of
the consequences of a guilty plea, [6] hasty
entry, [7] confusion, and [8] coercion are
also factors for consideration."
Id. (quoting
Handy, 326 N.C. at 539, 391 S.E.2d at 163).
If the defendant establishes a fair and just reason for
withdrawal of his plea, "[t]he State may refute the [defendant]'s
showing by evidence of concrete prejudice to its case by reason of
the withdrawal of the plea."
Handy, 326 N.C. at 539, 391 S.E.2d at
163. This Court "review[s] the record independent of the trial
court's action [to] determine, 'considering the reasons given by
the defendant and any prejudice to the State, if it would be fair
and just to allow the motion to withdraw.'"
State v. Graham, 122
N.C. App. 635, 637, 471 S.E.2d 100, 101 (1996) (quoting
State v.
Marshburn, 109 N.C. App. 105, 108, 425 S.E.2d 715, 718 (1993)).
As to whether defendant maintained his innocence, defendant
points to a 1 April 2007 letter defendant sent to the trial court,
in which he states: "First and foremost I would like to proclaim my
innocence and wishes to have a(n) trial." On the other hand, the
trial court found in its order that defendant had admitted on therecord two years earlier, during the 29 March 2005 hearing: "I
ain't completely innocent, but I ain't completely guilty."
We have previously held that statements less equivocal than
defendant's were insufficient assertions of innocence under
Handy.
In
Graham, 122 N.C. App. at 637, 471 S.E.2d at 102, the defendant
stated that "he 'always felt that he was not guilty. . . .'" In
concluding that the defendant in
Graham had failed to show a fair
and just reason for withdrawing his guilty plea, we held that the
defendant's statement was not a "concrete assertion of innocence"
under
Handy.
Id. Similarly, in
State v. Davis, 150 N.C. App. 205,
207, 562 S.E.2d 590, 592 (2002), we held that the defendant had not
made a definitive assertion of innocence when he answered "No, sir"
to defense counsel's question: "Do you feel like you're guilty of
second degree murder?" In this case, defendant's statement "I
ain't completely innocent, but I ain't completely guilty" is even
more equivocal regarding defendant's innocence than the statements
made in
Graham and
Davis.
In support of his position that he has always maintained his
innocence, defendant denies that he ever gave Hayes the information
contained in the 24 November 2004 proffer of testimony.
Defendant's argument relying on his own testimony is foreclosed by
the trial court's unchallenged finding that defendant provided
Hayes with the answers to the prosecutor's questions on 15 November
2004.
As for the strength of the State's proffer of evidence in
support of the plea, defendant maintains that the State reliedprimarily on Hayes' testimony divulging confidential communications
protected by the attorney-client privilege. Defendant argues that
when Hayes' testimony is excluded, the State's evidence against him
is weak. To the contrary, the State's forecast included
defendant's proposed testimony submitted to the prosecutor,
evidence of consistent statements and proposed testimony of his co-
defendants, and evidence of Detective Conwell's investigation that
implicated defendant.
With respect to the length of time between the entry of the
plea and defendant's expression of a desire to withdraw the plea,
defendant asserts that he began asking Hayes to move to withdraw
his plea within six weeks of entering his plea on 31 March 2005, as
evidenced by his 10 May 2005 letter to Hayes. The trial court,
however, found in a finding not assigned as error:
Not until June 21, 2005 did defendant express
any second thoughts about his guilty plea.
For several months thereafter the defendant
waffled about his guilty plea. Not until
April, 2006, did he tell Hayes that he
definitely wanted to withdraw his plea. Even
after having new counsel appointed to pursue a
motion, however, he did not file such a motion
until March 27, 2007, preserving his option to
waffle again and rely on his plea arrangement.
A lengthy amount of time passed before
defendant stated a definite desire to withdraw
his guilty plea.
Defendant's delay in this case far exceeds the lapse in time in
other cases in which our appellate courts have upheld denials of
motions to withdraw.
See, e.g., Meyer, 330 N.C. at 744, 412 S.E.2d
at 343 (concluding three and a half month period weighed against
allowing withdrawal);
Robinson, 177 N.C. App. at 230, 628 S.E.2d at255 (same);
Graham, 122 N.C. App. at 637, 471 S.E.2d at 101-02
(denying defendant's motion to withdraw filed five weeks after
entry of plea).
Defendant also argues that the evidence relating to whether
Hayes provided competent representation weighs in favor of allowing
him to withdraw his plea. The trial court, however, found that
[t]here is no doubt that defendant had
extremely competent and capable counsel in
Hayes and Driver
(See footnote 3)
and later Blitzer. Hayes
fully explained and discussed all pertinent
matters with defendant for defendant to be
able to make an informed decision about his
plea arrangement both before it was reached
and subsequent thereto as defendant waffled in
his view of whether the length of sentence was
too long or the best he could do under the
circumstance.
Despite the fact that defendant points to his own testimony in
which he stated that Hayes provided him with incorrect information
about whether he qualified as a violent habitual felon and whether
his refusal to testify against his co-defendants would
automatically void his plea agreement, the trial court made
uncontested findings of fact contrary to this testimony. Moreover,
although defendant claims that he misunderstood the consequences of
his guilty plea as he was misinformed by Hayes, the trial court
found that "[t]here is absolutely no indication that defendant did
not fully understand the consequences of his plea. He knew what hewas pleading guilty to, what his sentences would be, and what
charges would be dismissed."
Defendant points to his "swift change of heart" in his 10 May
2005 letter to Hayes as indicative of haste and confusion. The
trial court specifically found, however, that Hayes never received
that letter. The court's findings further establish that "[t]his
is not a situation in which a plea offer was made, discussed and
accepted at the last minute." The court noted that Hayes had
discussed the terms of the plea agreement on multiple occasions
beginning in November 2004 and continuing through 30 March 2005,
the day before the entry of defendant's guilty plea. The multiple
discussions and review of the plea bargain over several months
indicate the absence of haste or coercion in defendant's original
decision to plead guilty.
We agree with the trial court that given the factors set out
in
Handy, defendant did not present a fair and just reason to allow
him to withdraw his guilty plea. We also agree that the State
sufficiently demonstrated that its case would be prejudiced if
defendant were allowed to withdraw his guilty plea as all the co-
defendants had already been sentenced and thus could not be relied
upon to testify against defendant at trial. Defendant, however,
contends that there is no "colorable claim of prejudice" since "the
state could simply recall attorney Hayes to testify again in front
of a jury." While Hayes' testimony may have been admissible in
connection with defendant's motion to withdraw his guilty plea,
that does not mean it necessarily would be admissible in a trial onthe merits of the burglary and murder charges against defendant,
especially given Fifth Amendment concerns. Accordingly, we
conclude that the court did not err in denying defendant's motion
to withdraw his guilty plea.
III
Defendant's final argument is that the trial court erred in
calculating his prior record level. Defendant was convicted of the
sale of cocaine on 24 July 1997. At the time of that conviction,
the offense was a Class H felony. When, however, defendant was
sentenced for the current offenses, the sale of cocaine had become
a Class G felony.
See N.C. Gen. Stat. § 90-95(b)(1) (2007)
(providing that sale of a Schedule I substance, such as cocaine,
constitutes a Class G felony). For purposes of calculating
defendant's prior record level, the trial court treated the sale of
cocaine conviction as a Class G felony, resulting in defendant's
being a Level IV offender rather than a Level III offender.
In his brief, defendant acknowledges that N.C. Gen. Stat. §
15A-1340.14(c) (2007) states that when "determining the prior
record level, the classification of a prior offense is the
classification assigned to that offense at the time the offense for
which the offender is being sentenced is committed." Defendant
contends, however, that in order to prevent unconstitutional
ex
post facto application of the statute, it must be construed
liberally in his favor such that he is entitled to be re-sentenced
as a Level III offender. Defendant is correct that "'[c]riminal statutes are to be
strictly construed against the State.'"
State v. Hearst, 356 N.C.
132, 136, 567 S.E.2d 124, 128 (2002) (quoting
State v. Raines, 319
N.C. 258, 263, 354 S.E.2d 486, 489 (1987)). Nevertheless, "[i]f
the statutory language is clear and unambiguous, the court eschews
statutory construction in favor of giving the words their plain and
definite meaning."
State v. Beck, 359 N.C. 611, 614, 614 S.E.2d
274, 277 (2005). Judicial construction is appropriate only when
the statute is ambiguous.
Id. Defendant points to no ambiguity in
N.C. Gen. Stat. § 15A-1340.14(c), and we find none. Thus, the
plain language of the statute controls, and there is nothing to
construe.
As for defendant's
ex post facto argument, "an impermissible
ex post facto law is one which, among other things, aggravates a
crime or makes it a greater crime than when committed, or changes
the punishment of a crime to make the punishment greater than the
law permitted when the crime was committed."
State v. Mason, 126
N.C. App. 318, 324, 484 S.E.2d 818, 821 (1997),
cert. denied, 354
N.C. 72, 553 S.E.2d 208 (2001). Because defendant's increased
sentence due to the change in the classification of his prior
conviction serves only to enhance his punishment for the present
offenses _ the 15 December 2003 burglary and murder _ and not to
punish defendant for his prior conviction, the constitutional
prohibition on
ex post facto laws is not implicated by application
of N.C. Gen. Stat. § 15A-1340.14(c).
See State v. Wolfe, 157 N.C.
App. 22, 37, 577 S.E.2d 655, 665 (concluding use of priorconviction, originally a class F felony but currently a class D
felony, to establish violent habitual felon status did not violate
ex post facto clause as punishment for prior conviction was not
increased),
appeal dismissed and disc. review denied, 357 N.C. 255,
583 S.E.2d 289 (2003);
Mason, 126 N.C. App. at 323-24, 484 S.E.2d
at 821 (holding
ex post facto prohibition not violated when "the
crimes of assault with a deadly weapon inflicting serious injury
and voluntary manslaughter were Class H and F felonies respectively
at the time of commission, [but were] treat[ed] . . . as Class E
felonies for establishing violent habitual offender status" under
N.C. Gen. Stat. § 14-7.7 (2007)). Accordingly, we find no error in
defendant's sentence.
Affirmed.
Judges WYNN and CALABRIA concur.
Footnote: 1