State v. Howell , 250 N.C. App. 686 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-303
Filed: 6 December 2016
Transylvania County, Nos. 14 CRS 484, 15 CRS 163
STATE OF NORTH CAROLINA
v.
WILLIAM SHELDON HOWELL
Appeal by defendant from judgment entered 9 December 2015 by Judge Mark
E. Powell in Transylvania County Superior Court. Heard in the Court of Appeals 4
October 2016.
Attorney General Roy Cooper, by Assistant Attorney General Susan Fountain,
for the State.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant-
appellant.
BRYANT, Judge.
Where the sentencing statute states that a Class 1 misdemeanor under the
Controlled Substances Act “shall be punished as a Class I felon[y]” where the
misdemeanant has committed a previous offense punishable under the Act, the
sentencing statute acts to enhance punishment for a misdemeanor offense and is not
a separate felony. Accordingly, we reverse the trial court’s judgment sentencing
defendant as a Class E felon.
STATE V. HOWELL
Opinion of the Court
On 27 October 2014, a grand jury sitting in Transylvania County indicted
defendant William Sheldon Howell on the charge of, inter alia, attaining habitual
felon status. On 15 June 2015, defendant was further indicted on charges of
possession of marijuana over one-half ounce but less than one-and-one-half ounce, a
Class 1 misdemeanor, and of having been previously convicted of any offense in
violation of the Controlled Substances Act.
On 9 December 2015, defendant entered into a plea agreement with the State:
defendant pled guilty to the Class 1 misdemeanor possession of marijuana,
acknowledged the prior conviction of a drug offense in violation of the Controlled
Substances Act which subjected defendant to an enhanced punishment, and
acknowledged attaining habitual felon status. Other pending charges were
dismissed. Before accepting defendant’s plea, the court engaged defendant in the
following discussion regarding his sentencing exposure:
THE COURT: I had a conference on Monday with [defense
counsel] and [the prosecutor] concerning the charges
against you. And [defense counsel] was arguing that the
way the statute [punishing possession of marijuana greater
than one-half ounce but less than one and one-half ounces]
was worded . . . [an enhanced sentence due to a prior
controlled substance conviction should be interpreted as] a
Class 1 misdemeanor punished as a felony, not really a
felony but just punished as a felony. . . .
...
I'm going to go over the charges. The possession of
marijuana greater than one-half ounce but less than one-
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STATE V. HOWELL
Opinion of the Court
and-one-half ounces is a Class 1 misdemeanor with a
possible maximum sentence of 120 days in prison, but
there's no mandatory minimum sentence. Do you
understand that charge?
THE DEFENDANT: Yes, sir.
THE COURT: Now, because you have the prior convictions
for controlled substances that Class 1 misdemeanor can be
punished as a Class I felony. And that has a possible
maximum sentence of 24 months in prison, but there’s no
mandatory minimum sentence. Do you understand that,
I'll say, enhanced punishment?
THE DEFENDANT: Yes, sir.
THE COURT: . . . [B]ecause you've obtained the status of
habitual felon, the Class I felony can be punished as a Class
E felony with a possible maximum sentence of 88 months
in prison, but no mandatory minimum sentence. . . .
Do you understand that now?
THE DEFENDANT: Yeah, I understand that. Yes, sir.
Defendant entered a plea of guilty to the Class 1 misdemeanor possession of
marijuana offense, admitted he had a prior drug conviction that would enhance the
punishment, and acknowledged that he had attained habitual felon status. The trial
court accepted defendant’s plea and entered a consolidated judgment on the charges.
THE COURT: All right. Madam Clerk, a Class 1
misdemeanor, but I will say for the record I'm treating it
as a Class I felony because of the prior conviction. And that
Class I felony because of the habitual felon status is
punished as a Class E felony.
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STATE V. HOWELL
Opinion of the Court
Defendant was sentenced to an active term of 29 to 47 months, which the court
suspended and placed defendant on supervised probation for a period of 36 months.
Defendant appeals.
___________________________________________
Pursuant to North Carolina General Statutes, section 15A-1444,
[a] defendant who has entered a plea of guilty or no contest
to a felony or misdemeanor in superior court is entitled to
appeal as a matter of right the issue of whether the
sentence imposed: . . . (2) Contains a type of sentence
disposition that is not authorized by G.S. 15A-1340.17
[“Punishment limits for each class of offense and prior
record level” (felony)] or G.S. 15A-1340.23 [“Punishment
limits for each class of offense and prior conviction level”
(misdemeanor)] for the defendant’s class of offense and
prior record or conviction level[.]
N.C. Gen. Stat. § 15A-1444(a2) (2015). As defendant challenges the sentence imposed
on the basis that such is not authorized by G.S. §§ 15A-1340.17 or 15A-1340.23, this
appeal is properly before this Court.
On appeal, defendant argues that the trial court erred by enhancing his
sentence for misdemeanor possession of marijuana to a Class I felony based on a prior
conviction and then to a Class E felony based on defendant’s habitual felon status.
We agree.
Per his plea agreement, defendant pled guilty to a Class 1 misdemeanor, see
N.C. Gen. Stat. 90-95(d)(4), and acknowledged a prior conviction for an offense also
punishable under the Act. On appeal, defendant contends that the Controlled
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STATE V. HOWELL
Opinion of the Court
Substances Act (the Act) does not elevate the offense of a Class 1 misdemeanor to a
Class I felony. Instead, rather, where a defendant commits a Class 1 misdemeanor
and has a prior conviction in violation of the Act, the Class 1 misdemeanor is simply
enhanced and the offense sentenced as a Class I felony. In support of his proposition,
defendant cites State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610 (1994) (habitual
impaired driving), and State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000)
(habitual misdemeanor assault).
In Smith, the defendant challenged the sentence imposed upon him after being
convicted of two counts of habitual misdemeanor assault and attaining habitual felon
status. 139 N.C. App. 209, 533 S.E.2d 510. The defendant argued that the habitual
misdemeanor assault offense did not create a substantive offense but merely
conferred a status upon the defendant for the purpose of enhancing punishment. Id.
at 212, 533 S.E.2d at 519. The Smith Court looked to the wording of the habitual
misdemeanor assault statute.
A person commits the offense of habitual misdemeanor
assault if that person violates any of the provisions of G.S.
14-33(c) or G.S. 14-34 and has been convicted of five or
more prior misdemeanor convictions, two of which were
assaults. A person convicted of violating this section is
guilty of a Class H felony . . . .
Id. at 213, 533 S.E.2d at 520 (alteration in original) (quoting N.C. Gen. Stat. § 14-
33.2). The Smith Court noted similar language in the habitual impaired driving
statute, General Statute section 20-138.5. “A person commits the offense of habitual
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STATE V. HOWELL
Opinion of the Court
impaired driving if he drives while impaired as defined in G.S. 20–138.1 and has been
convicted of three or more offenses involving impaired driving as defined in G.S. 20–
4.01(24a) within seven years of the date of this offense.” Id. (alteration in original)
(quoting N.C. Gen. Stat. § 20-138.5(a)). The Court contrasted the language of these
two statutes with that of the habitual felon statute: “Any person who has been
convicted of or pled guilty to three felony offenses in any federal court or state court
in the United States or combination thereof is declared to be an habitual felon . . . .”
Id. (quoting N.C. Gen. Stat. § 14-7.1). The Court considered the declaration “commits
the offense of” used in both the habitual misdemeanor assault statute and the
habitual impaired driving statute followed by the series of required acts indicative of
a substantive offense, while the phrase “ ‘declared to be’ immediately before ‘habitual
felon’ ” in the habitual felon statute, “denot[es] a status, rather than an offense.” Id.In Priddy, the defendant made a challenge similar to the argument presented
in Smith: “[T]he habitual impaired driving does not constitute a separate felony
offense; rather, it is a mere punishment enhancement statute like . . . the habitual
felon statute.” Priddy, 115 N.C. App. at 548, 445 S.E.2d at 612. As in Smith, the
Priddy Court reasoned that “the legislature clearly intended felonious habitual
impaired driving to constitute a separate felony offense,” and not a mere punishment
enhancement. Id. at 550, 445 S.E.2d at 612.
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STATE V. HOWELL
Opinion of the Court
We now turn our attention to the case sub judice. Within Chapter 90, Article
5 of our General Statutes is codified the North Carolina Controlled Substances Act
(the Act). Defendant pled guilty to possession of marijuana, a Schedule VI controlled
substance, greater than one-half ounce (and less than one and one-half ounces). N.C.
Gen. Stat. § 90-94(1) (2015). Pursuant to section 90-95, governing violations of the
Act, it is unlawful for any person to possess a controlled substance. Id. § 90-95(a)(3).
Possession of more than one-half ounce and not in excess of one and one-half ounces
of marijuana is punishable as a Class 1 misdemeanor. Id. § 90-95(d)(4). Defendant
pled guilty to this Class 1 misdemeanor and admitted to receiving a prior conviction
that would enhance his sentence to a Class I felony.
The prescribed punishment and degree of any offense
under this Article shall be subject to the following
conditions, but the punishment for an offense may be
increased only by the maximum authorized under any one
of the applicable conditions:
...
(3) If any person commits a Class 1 misdemeanor
under this Article and if he has previously been
convicted for one or more offenses under any law of
North Carolina . . . which offenses are punishable
under any provision of this Article, he shall be
punished as a Class I felon.
Id. § 90-95(e)(3) (emphasis added).
Because section (e) states that the defendant “shall be punished as a Class I
felon,” it appears that our General Assembly intended that section (e)(3) act as a
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STATE V. HOWELL
Opinion of the Court
sentence enhancement rather than a separate offense. Cf. Smith, 139 N.C. App. at
213, 533 S.E.2d 520 (“A person commits the offense of habitual misdemeanor assault
. . . .” (alteration in original) (quoting N.C. Gen. Stat. § 14-33.2)); Priddy, 115 N.C.
App. 547, 445 S.E.2d 610. Thus, while defendant’s Class 1 misdemeanor is
punishable as a felony under the circumstances present here, the substantive offense
remains a Class 1 misdemeanor. Defendant’s status as an habitual felon cannot be
used to further enhance a sentence that is not itself a substantive offense. Therefore,
because defendant’s habitual felon status has no impact on his sentence as a
misdemeanant, punishing defendant’s offense as a Class E felony is not authorized
by sections 15A-1340.17, 15A-1340.23, or 90-95(e)(3). Accordingly, we reverse the
trial court order sentencing defendant as a Class E felon due to defendant’s habitual
felon status and remand for resentencing.
REVERSED AND REMANDED.
Judges CALABRIA and STEPHENS concur.
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