Opinion
No. COA15-1134
05-17-2016
STATE OF NORTH CAROLINA v. JAMES EDWARD DARDEN, SR.
Attorney General Roy Cooper, by Assistant Attorney General Thomas J. Campbell, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Wayne County, Nos. 12 CRS 50294, 14 CRS 3139 Appeal by defendant from judgment entered 24 March 2015 by Judge Arnold O. Jones, II in Wayne County Superior Court. Heard in the Court of Appeals 2 May 2016. Attorney General Roy Cooper, by Assistant Attorney General Thomas J. Campbell, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant. McCULLOUGH, Judge.
James Edward Darden, Sr. ("defendant") appeals from a judgment entered upon (1) jury verdicts finding him guilty of possession of a controlled substance with intent to sell or deliver and possession of drug paraphernalia, and (2) his admission to attaining habitual felon status. We reverse defendant's conviction for attaining habitual felon status and remand for further proceedings.
I. Background
On 17 January 2012, Corporal Charles Shaeffer ("Corporal Shaeffer") of the Wayne County Sheriff's Office ("the Sheriff's Office") received a tip from an informant that an individual was selling marijuana out of a residence in Dudley, North Carolina. Based on the tip, Corporal Shaeffer obtained a search warrant for the residence. A joint task force of officers from the Sheriff's Office and the Goldsboro Police Department executed the warrant and discovered defendant, his son, and his girlfriend inside the home. The officers searched the residence and discovered two clear plastic bags containing a green vegetable matter; three marijuana blunts; two metal pipes; a clear plastic container which contained a green vegetable matter residue; eighteen individually wrapped clear plastic bags, each containing a green vegetable matter; a pair of scissors; and a set of digital scales. Defendant was arrested and subsequently indicted for possession of a controlled substance with intent to sell or deliver, keeping and maintaining a dwelling for the use of controlled substances, and possession of drug paraphernalia. Defendant was also later indicted for attaining habitual felon status.
Beginning 17 March 2015, defendant was tried by a jury in Wayne County Superior Court. At the close of the evidence, the trial court dismissed the charge of keeping and maintaining a dwelling for the use of controlled substances. On 24 March 2015, the jury returned verdicts finding defendant guilty of possession of a controlled substance with intent to sell or deliver and possession of drug paraphernalia. The State then asked if defendant admitted or denied being an habitual felon and defense counsel replied that "he would admit that status." The trial court accepted the admission, consolidated the offenses, and sentenced defendant as an habitual felon to an active term of 29 to 47 months of imprisonment. Defendant appeals.
II. Discussion
Defendant argues, and the State concedes, that the trial court erred by accepting his admission to habitual felon status without complying with the provisions of N.C. Gen. Stat. § 15A-1022(a) (2015). We agree.
After a defendant is found guilty of a felony, he may either submit the issue of whether he is an habitual felon to the jury or, "in the alternative, enter a guilty plea to the charge of being an habitual felon." State v. Wilkins, 225 N.C. App. 492, 497, 737 S.E.2d 791, 795 (2013). When a defendant pleads guilty to attaining habitual felon status, the trial court must comply with the provisions of N.C. Gen. Stat. § 15A-1022(a) by addressing the defendant personally and making certain required inquiries before accepting the defendant's plea. State v. Bailey, 157 N.C. App. 80, 88, 577 S.E.2d 683, 689 (2003).
In this case, after the jury returned its guilty verdict to the principal felony, the following exchange occurred:
[THE STATE]: Thank you, your Honor. When Mr. Darden was indicted for these two crimes in 12 CRS 50294 the State also indicted him as an habitual felon in 14 CRS 3139, so at this time we'd ask whether or not Mr. Darden
will admit or deny that he qualifies under the habitual felon statute 14-7.1 as an habitual felon.The court then received the factual basis for defendant's admission, conducted a sentencing hearing, and sentenced defendant as an habitual felon. But the trial court never conducted the colloquy required by N.C. Gen. Stat. § 15A-1022(a).
[DEFENSE COUNSEL]: Yes, sir, your Honor. If it please the Court, on behalf of my client he would admit that status; and I was allowed to look at the prior record that the State showed me, and it doesn't -- didn't have a drug conviction on it, but we would admit that status.
THE COURT: Okay. So let the record show that the Defendant has acknowledged and admitted his status as an habitual felon.
In State v. Gilmore, 142 N.C. App. 465, 471, 542 S.E.2d 694, 699 (2001), the defendant stipulated to habitual felon status, but did not plead guilty to attaining the status of an habitual felon. This Court held that "such stipulation, in the absence of an inquiry by the trial court to establish a record of a guilty plea, [was] not tantamount to a guilty plea." Id. Consequently, this Court reversed and remanded the defendant's habitual felon conviction. Id. at 472, 542 S.E.2d at 699.
The present case is indistinguishable from Gilmore. Defense counsel's admission to attaining habitual felon status on behalf of defendant did not comply with N.C. Gen. Stat. § 15A-1022(a), and thus, it cannot be considered tantamount to a guilty plea. As a result, defendant's conviction for attaining habitual felon status is reversed and the case is remanded for further proceedings.
REVERSED AND REMANDED.
Chief Judge McGEE and Judge ZACHARY concur.
Report per Rule 30(e).