State v. Anderson ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA14-25
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Caldwell County
Nos. 08 CRS 51489—90
DANNY RAY ANDERSON
On writ of certiorari to review judgments entered 16 May
2011 by Judge Robert C. Ervin in Caldwell County Superior Court.
Heard in the Court of Appeals 30 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Nicholaos G. Vlahos, for the State.
Franklin E. Wells, Jr., for defendant-appellant.
BRYANT, Judge.
Where defendant has a prior conviction for possession of a
firearm by a felon, that conviction may be used to both elevate
defendant’s sentencing status and to increase defendant’s
sentencing level.
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On 2 June 2008, defendant was indicted for first-degree
murder and possession of a firearm by a felon. The possession
of a firearm by a felon indictment alleged that defendant had
previously pled guilty to the Class F felony of possessing a
weapon of mass destruction in Burke County on 15 October 2003.
In the instant matter, the State’s evidence tended to show
the following. On 23 May 2008, defendant and his landlord
argued after defendant received an eviction notice. The next
day, the two had another argument, during which defendant
retrieved a rifle from his basement residence. Defendant waived
the rifle around, yelled at his landlord, and then shot his
landlord in the head.
During trial, the State introduced into evidence a
certified copy of defendant’s Burke County judgment for
possession of a weapon of mass destruction. On 16 May 2011, a
jury found defendant guilty of second-degree murder and of
possession of a firearm by a felon.
Following the return of the jury’s verdicts, the trial
court conducted a sentencing hearing. The State offered a
sentencing worksheet listing defendant’s prior convictions.
Among the convictions listed was the 2003 felony possession of a
weapon of mass destruction conviction, which the State used to
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support the charge of possession of a firearm by a felon. The
trial court assigned four points for the felony possession of a
weapon of mass destruction conviction, and one point each for
the four Class 1 misdemeanors. The trial court found defendant
to be a prior level III based upon the eight prior record level
points. Defendant was sentenced, as a prior record level III,
to 220 to 273 months for the second-degree murder conviction;
and as a prior record level III to 15 to 18 months for the
possession of a firearm by a felon conviction. Defendant
appeals.
______________________________
In his sole argument on appeal, defendant contends the
trial court erred in sentencing him as a prior record level III
for possession of a firearm by a felon. Citing State v. Gentry,
135 N.C. App. 107, 519 S.E.2d 68 (1999), defendant argues it is
unfair to use his 2003 felony conviction to establish both an
element of his possession of a firearm by a felon conviction and
to calculate his prior record level. We disagree; for, as
acknowledged by defendant, we rejected this exact argument in
State v. Best, 214 N.C. App. 39, 713 S.E.2d 556, disc. review
denied, 365 N.C. 361, 718 S.E.2d 397 (2011).
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In Gentry, this Court concluded that a defendant’s prior
record level for sentencing for habitual driving while impaired
(“DWI”) may not be calculated using previous DWI convictions
because they were the same convictions upon which her habitual
DWI charge was based. Gentry, 135 N.C. App. at 111, 519 S.E.2d
at 70 (“[O]ur legislature recognized the basic unfairness and
constitutional restrictions on using the same convictions both
to elevate a defendant’s sentencing status to that of an
habitual felon, and then to increase his sentencing level.”).
In Best, this Court noted that “[we have] been unwilling to
apply the logic utilized in [Gentry] to cases involving
convictions for possession of a firearm by a convicted felon.”
Best, 214 N.C. App. at 52, 713 S.E.2d at 565. This Court
reasoned:
[G]iven that the mere possession of a
firearm, unlike driving while impaired, is
not a criminal offense, the sort of “double-
counting” condemned in Gentry, in which an
act already declared to constitute a
criminal offense is punished more severely
based on the defendant’s prior record,
simply does not occur when the same
conviction is utilized to both establish the
defendant’s guilt of the underlying offense
and to calculate his prior record level
utilized in sentencing him for that offense.
Id. at ___, 713 S.E.2d at 566.
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Nevertheless, defendant asks this Court to apply the logic
of Gentry to his case and direct the trial court to resentence
him as a prior record level II. We are unable to do so and hold
that Best is controlling. See In re Civil Penalty, 324 N.C.
373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court
of Appeals has decided the same issue, albeit in a different
case, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.”
(citations omitted)). Because possession of a firearm by a
felon is a substantive offense rather than a sentencing
enhancement, defendant’s 2003 conviction was not improperly used
to “to elevate [his] sentencing status . . . and then to
increase his sentencing level.” Gentry, 135 N.C. App. at 111,
519 S.E.2d at 70. Accordingly, the trial court properly
sentenced defendant as a level III offender.
No error.
Judges STROUD and HUNTER, Robert N., Jr., concur.
Report per Rule 30(e).