Opinion
No. COA10-1125
Filed 7 June 2011 This case not for publication
Appeal by Defendant from judgments entered 17 February 2010 by Judge James U. Downs in Mitchell County Superior Court. Heard in the Court of Appeals 2 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley, Jr., for the State. Brock, Payne Meece, P.A., by C. Scott Holmes, for Defendant-appellant.
Mitchell County No. 09 CRS 50347.
Stevie Ira Douglas Hinton (Defendant) appeals from judgments dated 17 February 2010 and entered pursuant to jury verdicts finding him guilty of the sale and delivery of morphine, possession with intent to sell and deliver morphine, and of attaining the status of an habitual felon. The trial court sentenced Defendant as an habitual felon to two consecutive terms of 133 to 169 months imprisonment. Defendant filed written notice of appeal on 1 March 2010. Where Defendant failed to raise constitutional issues before the trial court, we dismiss Defendant's appeal.
On 17 April 2009, James Davis cooperated with the Spruce Pine Police Department by purchasing morphine from Defendant. Mr. Davis arranged for Special Agent Casey Drake of the North Carolina State Bureau of Investigation, who was working undercover, to meet Defendant and purchase twenty Percocet pills for $12 each. Agent Drake and Mr. Davis drove in a van to a parking lot at the Grassy Creek strip mall in Spruce Pine, North Carolina. Defendant drove up shortly afterward and joined Agent Drake and Mr. Davis in the van. Mr. Davis introduced Agent Drake as his cousin, and Defendant gave Agent Drake nineteen pills in exchange for $230. Subsequent analysis of the pills determined that they contained morphine and weighed a total of 2.3 grams.
On appeal, Defendant first argues the trial court erred in failing to arrest his conviction for possession with intent to sell and deliver morphine. Defendant contends his conviction for the sale and delivery of morphine was based on the same transaction as his conviction for possession with intent to sell and deliver morphine, and the trial court's entry of judgment on both convictions violates his right against double jeopardy. However, it is well established that:
"The constitutional right not to be placed in jeopardy twice for the same offense, like other constitutional rights, may be waived." State v. Hopkins, 279 N.C. 473, 475, 183 S.E.2d 657, 659 (1971). To avoid waiving this right, a defendant must properly raise the issue of double jeopardy before the trial court. See State v. McKenzie, 292 N.C. 170, 175, 232 S.E.2d 424, 428 (1977). Failure to raise this issue at the trial court level precludes reliance on the defense on appeal. Id.
State v. White, 134 N.C. App. 338, 342, 517 S.E.2d 664, 667 (1999). Defendant did not raise an issue involving double jeopardy at trial, and has waived review of this issue on appeal. Moreover, we note that it is clear from prior holdings of both this Court and the Supreme Court of North Carolina that the possession with intent to sell or deliver a controlled substance and the sale or delivery of the same controlled substance are two separate offenses and are constitutionally punishable as such. See State v. Pipkins, 337 N.C. 431, 434, 446 S.E.2d 360, 362 (1994) (holding that the offenses of felonious possession of cocaine and trafficking in cocaine by possession, based on the same contraband, may be punished separately); State v. Perry, 316 N.C. 87, 104, 340 S.E.2d 450, 461 (1986) (holding a "defendant may be convicted and punished separately for trafficking in heroin by possessi[on] . . ., trafficking in heroin by manufacturing . . ., and trafficking in heroin by transport[ation] . . . even when the contraband material in each separate offense is the same heroin"); State v. Springs, ___ N.C. App. ___, ___, 683 S.E.2d 432, 436 (2009) (holding "a defendant is not subjected to double punishment if she is sentenced and convicted of both possession of a controlled substance and possession of a controlled substance with intent to sell or deliver the same contraband"). Accordingly, Defendant's argument would be without merit were it properly before this Court.
Defendant also argues the consecutive sentences imposed by the trial court constitute cruel and unusual punishment for the possession with intent to sell and the sale of 2.3 grams of morphine. Defendant, however, has also waived this issue for review on appeal because he did not raise it at trial. State v. McGee, 175 N.C. App. 586, 590, 623 S.E.2d 782, 785, disc. review denied and appeal dismissed, 360 N.C. 542, 634 S.E.2d 891 (2006). Again, we note that "[t]his Court and the North Carolina Supreme Court have consistently rejected Eighth Amendment challenges to habitual felon sentences." State v. Cummings, 174 N.C. App. 772, 776, 622 S.E.2d 183, 185-86 (2005); see also State v. Clifton, 158 N.C. App. 88, 91, 95, 580 S.E.2d 40, 42, 45 (2003). Thus, Defendant's argument would be without merit were it properly before this Court. The sentence imposed by the trial court was not based solely upon Defendant's instant convictions. Rather, Defendant was sentenced because he committed multiple felonies over a span of more than twenty years and is an habitual felon. Defendant's sentence "is not so `grossly disproportionate' so as to result in constitutional infirmity." State v. Hensley, 156 N.C. App. 634, 639, 577 S.E.2d 417, 421 (2003).
Because Defendant has waived review of both of the issues he presents in his brief to this Court, we must dismiss Defendant's appeal.
Dismissed.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).