State v. Sydnor , 246 N.C. App. 353 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-776
Filed: 15 March 2016
Wake County, Nos. 14 CRS 206568; 14 CRS 1819
STATE OF NORTH CAROLINA
v.
KIM SYDNOR, Defendant.
Appeal by defendant from judgment entered 19 November 2014 by Judge
Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals
16 December 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn J.
Thomas, for the State.
WARD, SMITH & NORRIS, P.A., by Kirby H. Smith, III, for defendant.
ELMORE, Judge.
Kim Sydnor (defendant) was found guilty of assault on a female, habitual
misdemeanor assault, and attaining the status of an habitual felon. The trial court
sentenced defendant to a term of 88 to 118 months imprisonment and ordered him to
pay $5,000.00 in restitution. After review, we vacate defendant’s sentence and the
trial court’s award of restitution, and we remand for resentencing and a new hearing
on restitution.
I. Background
STATE V. SYDNOR
Opinion of the Court
On 22 March 2014, Wake County sheriff’s deputies were called to the home of
Willie Brown where they found Joynita Sydnor with injuries to her face. Ms. Sydnor
told the deputies that she and her husband, defendant, had gotten into an argument
when defendant hit her in the face. The deputies interviewed Mr. Brown and another
witness at the scene, Nellie Jernigan, who corroborated Ms. Sydnor’s statement.
After speaking with the deputies, Ms. Sydnor was transported to WakeMed Hospital
in Raleigh and treated for her injuries. A warrant for defendant’s arrest was issued
thereafter.
On 24 June 2014, the Wake County Grand Jury returned a four-count
indictment against defendant. Counts one and three charged defendant with the
principal misdemeanor offenses of assault on a female and simple assault,
respectively, and counts two and four charged defendant with habitual misdemeanor
assault. Each count of habitual misdemeanor assault alleged that defendant had
previously been convicted of two assault offenses: (1) misdemeanor assault on a
female on 14 August 2000, and (2) felony assault inflicting serious bodily injury on 30
May 2007. Defendant was charged in a separate indictment for attaining the status
of an habitual felon based on three prior felony convictions: (1) sale of counterfeit
controlled substances on 10 August 2000; (2) possession of cocaine on 14 March 2003;
and (3) assault inflicting serious bodily injury on 30 May 2007.
-2-
STATE V. SYDNOR
Opinion of the Court
The case came to trial on 17 November 2014 in Wake County Superior Court.
The jury found defendant guilty of assault on a female, and not guilty of simple
assault. Defendant stipulated that his two prior assault convictions, as alleged in the
principal indictment, rendered him eligible to be prosecuted for habitual
misdemeanor assault. Defendant also pleaded guilty to habitual felon status based
on the three prior felony convictions alleged in the habitual felon indictment.
At sentencing, the trial court calculated thirteen prior record points, resulting
in a prior record level IV. The court sentenced defendant as an habitual felon,
elevating the habitual misdemeanor assault conviction from a Class H to a Class D
felony, and imposed an active sentence of 88 to 118 months imprisonment with credit
for 236 days served. The trial court also ordered defendant to pay $5,000.00 in
restitution to WakeMed for Ms. Sydnor’s unpaid medical bills. Defendant timely
appeals.
II. Discussion
A. Habitual Felon Status
Defendant first argues that the habitual felon indictment against him was
fatally defective because the State used the same conviction, felony assault inflicting
serious bodily injury, to support habitual felon status and to enhance the assault on
a female charge to habitual misdemeanor assault. Defendant contends, therefore,
that the trial court had no jurisdiction to sentence him as an habitual felon.
-3-
STATE V. SYDNOR
Opinion of the Court
“[W]here an indictment is alleged to be invalid on its face, thereby depriving
the trial court of its jurisdiction, a challenge to that indictment may be made at any
time, even if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481,
503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). This
Court “review[s] the sufficiency of an indictment de novo.” State v. McKoy, 196 N.C.
App. 650, 652, 675 S.E.2d 406, 409 (2012).
Pursuant to North Carolina’s Habitual Felon Act, “[a]ny person who has been
convicted of or pled guilty to three felony offenses . . . is declared to be an habitual
felon and may be charged as a status offender pursuant to this Article.” N.C. Gen.
Stat. § 14-7.1 (2015). To put the defendant on notice “that he is being prosecuted for
some substantive felony as a recidivist,” State v. Allen, 292 N.C. 431, 436, 233 S.E.2d
585, 588 (1977), the principal felony and habitual felon status must be charged in
separate indictments, N.C. Gen. Stat. § 14-7.3 (2015). The habitual felon indictment
must include “the three prior felony convictions relied on by the State . . . .” State v.
Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 865 (1995); see also N.C. Gen. Stat. § 14-
7.3 (2015) (setting forth the requirements for a valid habitual felon indictment). Upon
conviction of the principal felony and, subsequently, attaining habitual felon status,
the defendant “must . . . be sentenced and punished as an habitual felon . . . .” N.C.
Gen. Stat. § 14-7.2 (2015). Habitual felon status “is not a crime in and of itself,” State
v. Kirkpatrick, 345 N.C. 451, 454, 480 S.E.2d 400, 402 (1997), but a “status justifying
-4-
STATE V. SYDNOR
Opinion of the Court
an increased punishment for the principal felony.” State v. Priddy, 115 N.C. App.
547, 549, 445 S.E.2d 610, 612 (1994) (citation omitted).
North Carolina’s habitual misdemeanor assault statute, which is partly
recidivist in nature, provides as follows:
A person commits the offense of habitual misdemeanor
assault if that person violates any of the provisions of G.S.
14-33 and causes physical injury, or G.S. 14-34, and has
two or more prior convictions for either misdemeanor or
felony assault . . . . A person convicted of violating this
section is guilty of a Class H felony.
N.C. Gen. Stat. § 14-33.2 (2015). Unlike habitual felon status, “habitual
misdemeanor assault ‘is a substantive offense and a punishment enhancement (or
recidivist, or repeat-offender) offense.’ ” State v. Carpenter, 155 N.C. App. 35, 49, 573
S.E.2d 668, 677 (2002) (quoting State v. Vardiman, 146 N.C. App. 381, 385, 552
S.E.2d 697, 700 (2001), cert. denied, 537 U.S. 833, 154 L. Ed. 2d 51 (2002)). The
statute treats the defendant’s prior assault convictions as elements of habitual
misdemeanor assault. It does not, however, “ ‘impose punishment for [these] previous
crimes,’ ” but instead “ ‘imposes an enhanced punishment’ for the latest offense.”
Vardiman, 146 N.C. App. at 385, 552 S.E.2d at 700 (quoting State v. Smith, 139 N.C.
App. 209, 214, 533 S.E.2d 518, 521 (2000)); see also Carpenter, 155 N.C. App. at 48,
573 S.E.2d at 676–77 (citing prior decisions that note similarities between habitual
misdemeanor assault statute and habitual impaired driving statute).
-5-
STATE V. SYDNOR
Opinion of the Court
Although the habitual felon statute and the habitual misdemeanor assault
statute have both survived constitutional challenges based on double jeopardy, see
State v. Todd, 313 N.C. 110, 117–18, 326 S.E.2d 249, 253 (1985) (holding habitual
felon statute constitutional); Carpenter, 155 N.C. App. at 50, 573 S.E.2d at 678
(holding habitual misdemeanor assault statute constitutional), our decisions have
recognized limitations on using the same prior convictions to support an habitual
offense and to increase a defendant’s prior record level at sentencing.
A prior conviction used to establish habitual felon status, for example, may not
also be used to determine a defendant’s prior record level at sentencing. N.C. Gen.
Stat. § 14-7.6 (2015); State v. Wells, 196 N.C. App. 498, 502–03, 675 S.E.2d 85, 88
(2009); State v. Miller, 168 N.C. App. 572, 575–76, 608 S.E.2d 565, 567 (2005); State
v. Lee, 150 N.C. App. 701, 703–04, 564 S.E.2d 597, 598–99 (2002); State v. Bethea,
122 N.C. App. 623, 626, 471 S.E.2d 430, 432 (1996). As we explained in State v.
Bethea,
there are two independent avenues by which a defendant’s
sentence may be increased based on the existence of prior
convictions. A defendant’s prior convictions will either
serve to establish a defendant’s status as an habitual felon
pursuant to G.S. 14-7.1 or to increase a defendant’s prior
record level pursuant to G.S. 15A-1340.14(b)(1)–(5). G.S
14-7.6 establishes clearly, however, that the existence of
prior convictions may not be used to increase a defendant’s
sentence pursuant to both provisions at the same time.
Bethea, 122 N.C. App. at 626, 471 S.E.2d at 432.
-6-
STATE V. SYDNOR
Opinion of the Court
Likewise, a prior conviction used to support the offense of habitual impaired
driving may not also be used to increase a defendant’s prior record level. State v.
Gentry, 135 N.C. App. 107, 111, 519 S.E.2d 68, 70–71 (1999) (“We believe it is
reasonable to conclude that that same legislature did not intend that the convictions
which elevate a misdemeanor driving while impaired conviction to the status of the
felony of habitual driving while impaired, would then again be used to increase the
sentencing level of the defendant.”).
In addition, a conviction for habitual misdemeanor assault may “not be used
as a prior conviction for any other habitual offense statute.” N.C. Gen. Stat. § 14-
33.2; State v. Shaw, 224 N.C. App. 209, 212, 737 S.E.2d 596, 598 (2012) (“A prior
habitual misdemeanor assault conviction may not . . . be utilized as a predicate felony
for the purpose of establishing that a convicted defendant has attained habitual felon
status.”). Cf. State v. Holloway, 216 N.C. App. 412, 414–15, 720 S.E.2d 412, 413–14
(2011) (holding that a defendant convicted of the principal felony of habitual
misdemeanor assault may be sentenced as an habitual felon).
This Court has held, however, that the same prior conviction may be used to
support an habitual misdemeanor offense and habitual felon status. In State v.
Misenheimer, 123 N.C. App. 156, 157, 472 S.E.2d 191, 192, cert. denied, 344 N.C. 441,
476 S.E.2d 128 (1996), the defendant was indicted for felony habitual impaired
driving and for attaining habitual felon status. The defendant argued that two of his
-7-
STATE V. SYDNOR
Opinion of the Court
prior convictions could not be used simultaneously to support the habitual impaired
driving conviction and to enhance his sentence as an habitual felon. Id. We first
noted that, pursuant to N.C. Gen. Stat. § 14-7.6, a court may not enhance a
defendant’s felony level to Class C “on the grounds he is an habitual felon” and also
place a defendant “in a higher presumptive range because of his prior record level,
when the increased presumptive range is based upon the same convictions which
make him an habitual felon.” Id. at 157–58, 472 S.E.2d at 192. We concluded,
however, that there was no similar statutory prohibition against using the
defendant’s prior convictions as elements of habitual impaired driving and to
establish his status as an habitual felon. Id. at 158, 472 S.E.2d at 192–93.
We reaffirmed our holding from Misenheimer in State v. Glasco, 160 N.C. App.
150, 585 S.E.2d 257 (2003). In Glasco, the defendant argued that his constitutional
protection against double jeopardy was violated because “the court used the offense
of possession with intent to sell and deliver cocaine to support both the underlying
substantive felony (the ‘felon’ portion of the offense of felon in possession of a firearm)
and the habitual felon indictment.” Id. at 160, 585 S.E.2d at 264. We rejected this
argument, explaining that “[o]ur courts have determined that elements used to
establish an underlying conviction may also be used to establish a defendant’s status
as a habitual felon.” Id. (citing Misenheimer, 123 N.C. App. at 158, 472 S.E.2d at
192–93).
-8-
STATE V. SYDNOR
Opinion of the Court
Applying our decisions from Misenheimer and Glasco to the case sub judice, we
conclude that the trial court had jurisdiction to sentence defendant as an habitual
felon. Defendant’s prior conviction for felony assault inflicting serious bodily injury
was alleged as a predicate offense to support the indictment charging him with
habitual misdemeanor assault. That the same offense, felony assault inflicting
serious bodily injury, was also used as a predicate felony to establish defendant’s
status as an habitual felon does not render the indictment defective.
The trial court did err, however, in calculating defendant’s prior record level.
In Section I of the sentencing worksheet, the court assigned four points for a single
“Prior Felony Class E or F or G Conviction.” The only Class E, F, or G felony
conviction listed in Section V of the worksheet was defendant’s 30 May 2007
conviction for “Assault Inflicting Serious Bodily Injury.” Because that same offense
was used to support the habitual misdemeanor assault conviction and establish
defendant’s status as an habitual felon, it could not also be used to determine
defendant’s prior record level at sentencing. N.C. Gen. Stat. § 14-7.6; Gentry, 135
N.C. App. at 111, 519 S.E.2d at 70–71. Had the conviction been properly excluded,
defendant would have been sentenced at a prior record level III instead of IV.
Accordingly, we vacate defendant’s sentence and remand for resentencing.
B. Restitution
-9-
STATE V. SYDNOR
Opinion of the Court
Defendant next argues that the trial court erred in ordering defendant to pay
$5,000.00 in restitution because the amount of the award was not supported by
competent evidence.
A trial court’s entry of an award of restitution is deemed preserved for
appellate review under N.C. Gen. Stat. § 15A-1446(d)(18) even without a specific
objection. State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010); State v.
Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (citing State v. Reynolds,
161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003)).
“[T]he amount of restitution recommended by the trial court must be supported
by evidence adduced at trial or at sentencing.” State v. Wilson, 340 N.C. 720, 726,
459 S.E.2d 192, 196 (1995) (citing State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d
557, 560, aff’d per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986)); see also N.C. Gen.
Stat. § 15A-1340.36(a) (2015) (“The amount of restitution must be limited to that
supported by the record . . . .”). Where “there is some evidence as to the appropriate
amount of restitution,” the award will not be disturbed on appeal. State v. Hunt, 80
N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986). Our North Carolina Supreme Court
has explained that
[i]n applying this standard our appellate courts have
consistently engaged in fact-specific inquiries rather than
applying a bright-line rule. Prior case law reveals two
general approaches: (1) when there is no evidence,
documentary or testimonial, to support the award, the
award will be vacated, and (2) when there is specific
- 10 -
STATE V. SYDNOR
Opinion of the Court
testimony or documentation to support the award, the
award will not be disturbed.
State v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011).
Moore, however, was one of those cases which, “like many others, [fell] in
between” the two approaches outlined above. Id. In Moore, the trial court ordered
the defendant to pay an aggrieved property owner $39,332.49 in restitution based on
the owner’s testimony that estimated repairs to her property “totaled ‘thirty-
something thousand dollars.’ ” Id. Our Supreme Court rejected the State’s argument
that the testimony was sufficient to support an award “anywhere between $30,000.01
and $39,999.99.” Id. at 285–86, 715 S.E.2d at 849. The Court held that “there was
‘some evidence’ to support an award of restitution; however, the evidence was not
specific enough to support the award of $39,332.49.” Id.
Like the victim’s testimony in Moore, here Ms. Syndor’s testimony provides
“some evidence” to support a restitution award but is too vague to support the award
of $5,000.00. The only evidence of the cost of Ms. Sydnor’s medical treatment was
her own testimony that her medical bills were “over $5,000,” but she was “not sure”
whether they were more than $6,000.00. Contrary to the State’s position, her
testimony establishes only that her medical bills were in excess of $5,000.00. To hold
that this evidence is sufficient to support the $5,000.00 award would be to hold any
award more than $5,000.00 sufficient, as well. Therefore, we vacate the award and
remand to the trial court for a new hearing to determine the amount of Ms. Sydnor’s
- 11 -
STATE V. SYDNOR
Opinion of the Court
WakeMed hospital bills, and to calculate an amount of restitution supported by the
evidence. See Moore, 365 N.C. at 286, 715 S.E.2d at 849–50 (remanding “to determine
the amount of damage proximately caused by defendant’s conduct and to calculate
the correct amount of restitution”).
III. Conclusion
Although defendant’s prior offense of assault inflicting serious bodily injury
may be used to support convictions of habitual misdemeanor assault and habitual
felon status, it may not also be used to determine defendant’s prior record level. In
addition, our review of the record shows that Ms. Sydnor’s testimony was too vague
to support the award of restitution. We vacate defendant’s sentence and the trial
court’s award of restitution, and we remand for resentencing and a new hearing on
restitution.
VACATED IN PART AND REMANDED.
Judges CALABRIA and ZACHARY concur.
- 12 -