Opinion
NO. COA12-842 Clay County No. 10 CRS 50102 Clay County No. 09 CRS 50274
01-15-2013
STATE OF NORTH CAROLINA v. ROGER DALE COFFEY
Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State. Gerding Blass, PLLC, by Danielle Blass, for defendant appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.
Appeal by defendant from judgments entered 17 February 2012 by Judge Zoro J. Guice, Jr., in Clay County Superior Court. Heard in the Court of Appeals 15 November 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State.
Gerding Blass, PLLC, by Danielle Blass, for defendant appellant.
McCULLOUGH, Judge.
Roger Dale Coffey ("defendant") appeals from his conviction of possession of a firearm by a felon and from the revocation of his probation on the ground that N.C. Gen. Stat. § 14-415.1 is unconstitutional as applied to him. For the following reasons, we find no error.
I. Background
Defendant pled guilty to and was convicted on one count of assault with a deadly weapon inflicting serious injury on 12 October 1987 as a result of an incident occurring 30 March 1986. As a result, defendant was sentenced to a maximum term of ten years, which was suspended on condition that defendant serve an active sentence of six months and serve five years active probation. Supervision of defendant as a result of his assault with a deadly weapon inflicting serious injury conviction ended in 1992.
On 24 June 2009, a warrant was issued for defendant's arrest on charges of communicating threats. Thereafter, a jury found defendant guilty of one count of communicating threats, a misdemeanor conviction for which defendant received a suspended sentence on condition that he complete a period of supervised probation.
As a condition of probation, defendant consented to warrantless searches of his person and premises by a probation officer. On 28 March 2010, probation officers performed a search of defendant's premises located at 87 Up The Creek Trail. During the search probation officers recovered a SIG-Sauer pistol and a Remington Model 700 rifle. At that time, defendant was arrested without a warrant for possession of a firearm by a felon.
Defendant was indicted on the charge of possession of a firearm by a felon on 7 December 2010. Before the case came on for jury trial, defendant moved to dismiss the indictment against him on the ground that N.C. Gen. Stat. § 14-415.1 was "unconstitutional as applied to one accused of being a felon and having a firearm in his home." Defendant's motion came on for hearing 13 February 2012 and was denied.
The case came on for jury trial on 14 February 2012 in Clay County Superior Court, the Honorable Zoro J. Guice, Jr., presiding. On 15 February 2012, the jury returned a guilty verdict on the charge of possession of a firearm by a felon. Defendant was sentenced to a minimum term of 15 months and a maximum term of 18 months. Additionally, defendant was found to be in willful violation of his probation that he was serving for the misdemeanor conviction for communicating threats and was sentenced to a consecutive term of 45 days. Defendant timely appealed.
II. Analysis
The sole issue on appeal is whether the trial court erred in denying defendant's motion to dismiss the indictment on the ground that N.C. Gen. Stat. § 14-415.1 is unconstitutional as applied to defendant. We find that it is not unconstitutional.
"The standard of review for alleged violations of constitutional rights is de novo." State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) ("[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated."). However, before reaching the merits of defendant's appeal, we note that it appears defendant raises different arguments on appeal than he initially brought to the attention of the trial court. "This Court will not consider arguments based upon matters not presented to or adjudicated by the trial court. Even alleged errors arising under the Constitution of the United States are waived if defendant does not raise them in the trial court." State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600 (2003) (internal quotation marks and citations omitted).
As previously acknowledged, defendant initially filed a motion to dismiss the possession of a firearm by a felon indictment arguing that N.C. Gen. Stat. § 14-415.1 is "unconstitutional as applied to one accused of being a felon and having a firearm in his home." Then, at the hearing on defendant's motion, in response to the State's argument concerning the specifics of defendant's case and the issue of public safety where the terms of defendant's probation allowed warrantless searches of his premises, counsel for defendant stated,
I'm not making an as applied argument here as to Mr. Coffey.Now, defendant's sole argument on appeal is that the trial court erred in denying his motion to dismiss the indictment on the ground that, "as applied to him, N.C. Gen. Stat. [§] 14-415.1 is an unreasonable regulation, which violates [his] right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution."
I'm arguing that the statute itself is unconstitutional as it applies to weapons in the home. I'm not saying it's just unconstitutional to Mr. Coffey . . . . I'm attacking the law itself for its wholesale removal of a right to self-defense.
Despite the inconsistencies in defendant's arguments, we find the arguments related and proceed to address the argument as briefed by defendant. Thus, we must address whether N.C. Gen. Stat. § 14-415.1 is unconstitutional as applied to defendant.
At the hearing on defendant's motion to dismiss the indictment, upon hearing the arguments and denying defendant's motion, the trial judge stated that "it may be that this is a matter that needs to be clarified by the North Carolina Court of Appeals and the North Carolina Supreme Court." However, based on the argument briefed by defendant, we find this case straightforward under the existing law.
The North Carolina Constitution provides that "[a] well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed[.]" N.C. Const. art. I, § 30. Thus, an individual has the right, subject to reasonable regulation, to possess a firearm. See State v. Dawson, 272 N.C. 535, 546-47, 159 S.E.2d 1, 9-10 (1968) (discussing the right to bear arms).
The Felony Firearms Act, specifically N.C. Gen. Stat. § 14-415.1, strips that right from individuals convicted of a felony. Since defendant was convicted as a felon in 1987, the statute has been amended several times and now effectively provides "[i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm . . . ." N.C. Gen. Stat. § 14-415.1(a) (2011).
A regulation of the right to bear arms is a proper exercise of the police power, "but . . . any regulation must be at least 'reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.'" Britt v. State, 363 N.C. 546, 549, 681 S.E.2d 320, 322 (2009) (quoting Dawson, 272 N.C. at 547, 159 S.E.2d at 10 (quoting with approval State v. Kerner, 181 N.C. 574, 579, 107 S.E. 222, 226 (1921) (Allen, J., concurring))). Additionally, "there is a strong presumption that enactments of the General Assembly are constitutional." Town of Spruce Pine v. Avery County, 346 N.C. 787, 792, 488 S.E.2d 144, 147 (1997).
When reviewing an as applied challenge to N.C. Gen. Stat. § 14-415.1, we focus on five factors:
(1) the type of felony convictions, particularly whether they "involved violence or the threat of violence[,]" (2) the remoteness in time of the felony convictions[,] (3) the felon's history of "law-abiding conduct since [the] crime," (4) the felon's history of "responsible, lawful firearm possession" during a time period when possession of firearms was not prohibited, and (5) the felon's "assiduous and proactive compliance with the 2004 amendment."State v. Whitaker, 201 N.C. App. 190, 205, 689 S.E.2d 395, 404 (2009) (quoting Britt, 363 N.C. at 550, 681 S.E.2d at 323), aff'd on other grounds, 364 N.C. 404, 700 S.E.2d 215 (2010).
Comparing cases, in Britt, our Supreme Court found the statute to be unconstitutional as applied to a defendant convicted on a nonviolent drug offense, reasoning that "it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety." Britt, 363 N.C. at 550, 681 S.E.2d at 323. On the other hand, in Whitaker, after applying the five factors relied upon in Britt, this Court found N.C. Gen. Stat. § 14-415.1 to be constitutional as applied to a defendant who was convicted of three prior non-violent felonies, the most recent conviction on a drug charge only a few years prior, and who demonstrated a disregard for the law despite never misusing a firearm. Whitaker, 201 N.C. App. at 206-07, 689 S.E.2d 404-05.
In the present case, defendant argues that his circumstances fall between the extremes of Britt and Whitaker, but more closely resemble the facts in Britt. Therefore, defendant asserts N.C. Gen. Stat. § 14-415.1 is unconstitutional as applied to him.
Applying the five factors in this case, N.C. Gen. Stat. § 14-415.1 is constitutional as applied to defendant. First, defendant was convicted of assault with a deadly weapon inflicting serious injury, a violent felony. Second, although defendant's felony conviction occurred over twenty years ago, defendant was recently convicted on a misdemeanor charge of communicating threats. Third, although there is no evidence that defendant has misused firearms, probation officers found two firearms in defendant's premises and there is no evidence that defendant has attempted to comply with the 2004 amendment to the statute. Furthermore, we think it significant that in defendant's situation probation officers would enter his home to conduct warrantless searches as a condition of probation. Therefore, there is a public interest that defendant not have firearms in his home and the statute is "fairly related to the preservation of public peace and safety."
Additionally, the Felony Firearms Act provides a procedure whereby a felon may "petition the court to remove the petitioner's disentitlement under G.S. 14-415.1 and to restore the person's firearms rights . . . ." N.C. Gen. Stat. § 14-415.4(b) (2011) . "The court may grant a petition to restore a person's firearms rights . . . if the petitioner satisfies all of the [listed] criteria and is not otherwise disqualified to have that right restored[.]" N.C. Gen. Stat. § 14-415.4(d). One of the criteria requires that "[t]he petitioner has only one felony conviction and that conviction is for a nonviolent felony." N.C. Gen. Stat. § 14-415.4(d)(2). "Nonviolent felony" is defined to exclude:
[A]ny Class C through Class I felony that is one of the following:N.C. Gen. Stat. § 14-415.4(a)(2). In this case, defendant was previously convicted of assault with a deadly weapon inflicting serious injury, a Class E felony for which the court is specifically prohibited from granting defendant the restoration of his firearm rights.
a. An offense that includes assault as an essential element of the offense.
b. An offense that includes the possession or use of a firearm or other deadly weapon as an essential or nonessential element of the offense, or the offender was in possession of a firearm or other deadly weapon at the time of the commission of the offense.
c. An offense for which the offender was armed with or used a firearm or other deadly weapon.
III. Conclusion
For the reasons set forth above, N.C. Gen. Stat. § 14-415.1 is constitutional as applied to defendant.
No error.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).