Opinion
No. COA02-1728
Filed August 3, 2004 This case not for publication
Appeal by defendant from judgment entered 21 March 2002 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 17 September 2003.
Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant District Attorney Patricia A. Duffy for the State. Gilda C. Rodriguez for the defendant-appellant.
Wake County Nos. 01 CRS 77562, 01 CRS 86867.
Andre F. Howard (defendant) was stopped by police after Sergeant J.S. Tabor (the officer) noticed an unusual sound coming from defendant's truck. He testified that it sounded like a tire was about to come off of the truck. The officer also noticed that defendant's truck only had one working headlight and that defendant was driving under the speed limit. When the officer stopped defendant he noticed an odor of alcohol and performed several field sobriety tests on defendant. Defendant was polite and cooperative throughout the exchange, but did not perform well on the tests. The officer also found a half-full can of beer in his truck as wellas an unopened can of beer on the passenger side of the bench seat. Defendant was taken to jail where he refused to take an Intoxilyzer test. Defendant was then taken to the emergency room, and upon release the next morning was transported to the Wake County Jail.
Defendant was indicted for impaired driving, habitual impaired driving, and being an habitual felon. A jury found defendant guilty of driving while impaired. The trial court also found defendant guilty of habitual impaired driving. Defendant pled guilty to habitual felon status and was sentenced to 135-171 months in prison.
I.
Defendant's first assignment of error is that the habitual impaired driving indictment, which charged him with attaining "the status of an habitual impaired driver," was fatally defective because it failed to sufficiently apprise the defendant of the charge against him. Defendant argues that habitual impaired driving is an offense which one commits, and not a status, and so the indictment is fatally defective. We disagree.
A criminal indictment is sufficient if it expresses "the charge against the defendant in a plain, intelligible, and explicit manner." N.C. Gen. Stat. § 15-153 (2003); State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996). Specifically, the indictment must allege all of the essential elements of the crime sought to be charged. State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958). "Allegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated assurplusage." State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972).
Recent decisions have established that habitual impaired driving is both a status offense and a substantive offense. See State v. Carpenter, 155 N.C. App. 35, 48, 573 S.E.2d 668, 677 (2002), disc. review denied, 356 N.C. 681, 577 S.E.2d 896 (2003); State v. Vardiman, 146 N.C. App. 381, 385, 552 S.E.2d 697, 700 (2001), cert. denied, 537 U.S. 233, 154 L.Ed.2d 51 (2002) (both cases define habitual impaired driving as a status as well as a substantive offense).
Because habitual impaired driving is both a status and a substantive offense, then an indictment which charges a defendant using either designation is sufficient to express the charge against the defendant in plain language as required by the statute. The charge itself of "habitual impaired driving" is the essential component.
We hold that the habitual impaired driving indictment was valid.
II.
Defendant next assigns as error the multiple use of two impaired driving convictions, claiming this violated the protections afforded the defendant under the double jeopardy clause of the United States and North Carolina Constitutions.
Defendant argues that he was put in double jeopardy because two of his driving while impaired convictions were subsequently used as essential elements of the habitual impaired drivingconviction of 14 December 1999, and again in the current conviction for habitual impaired driving on 21 March 2002, and again to support his habitual felon enhancement. The issue before us is whether impaired driving convictions can be used more than once in separate convictions of habitual impaired driving and habitual felon to enhance punishment. The Court has previously explained that convictions can be so used because habitual offender status is a status that, once gained, is never lost:
[T]he Supreme Court described the habitual felon process in State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977), by stating once an individual "who has already attained the status of an habitual felon is indicted for the commission of another felony, that person may then be also indicted in a separate bill as being an habitual felon." This implies that being an habitual felon is a status, that once attained is never lost. If the legislature had wanted to require the State to show proof of three new underlying felonies before a new habitual felon indictment could issue, then the legislature could have easily stated such. We will not rewrite the statute.
State v. Smith, 112 N.C. App. 512, 517, 436 S.E.2d 160, 162 (1993).
The Court in State v. Vardiman, 146 N.C. App. 381, 552 S.E.2d 697 further reasoned:
It is also well settled that recidivist statutes, or repeat-offender statutes, survive constitutional challenges in regard to double jeopardy challenges because they increase the severity of the punishment for the crime being prosecuted; they do not punish a previous crime a second time. See e.g., Monge v. California, 524 U.S. 721, 728, 141 L.Ed.2d 615, 624 (1998) ("[a]n enhanced sentence imposed on a persistent offender thus `is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes' but as `a stiffened penalty for the latest crime, which is considered to be an aggravatedoffense because a repetitive one.'") (quoting Gryger v. Burke, 334 U.S. 728, 732, 92 L.Ed.2d 1683, 1687 (1948)). Nichols v. United States, 511 U.S. 738, 747, 128 L.Ed.2d 745, 754 (1994) (the Supreme Court "consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant").
State v. Vardiman, 146 N.C. App. 381, 383, 552 S.E.2d 697, 699 (2001).
We discern no double jeopardy in defendant's trial.
III.
Defendant's last three assignments of error raise the following issues: whether defendant's habitual felon conviction must be vacated because the indictment failed to allege three non-overlapping felonies; whether defendant's prior conviction of possession of cocaine should have been used as one of the three prior convictions supporting a habitual felon indictment and conviction; and, whether the habitual felon indictment was fatally defective. The final 3 assignments of error brought by defendant are barred because defendant pled guilty to the habitual felon status. Section 15A-1444 of our General Statutes provides:
(e) Except as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari. If an indigent defendant petitions the appellate division for a writ of certiorari, the presiding superior court judge may in his discretion order the preparation of the record and transcript of the proceedings at the expense of the State.
N.C. Gen. Stat. § 15A-1444 (2003). See also State v. Young, 120 N.C. App. 456, 462 S.E.2d 683 (1995) (If a defendant pleads guilty to being an habitual felon and does not move in the trial court to withdraw that guilty plea, the defendant is not entitled to an appeal of right from the trial court's ruling).
We also note, in reference to defendant's assignment of error to the trial court's use of his cocaine possession conviction in support of habitual felon status, that in light of the recent North Carolina Supreme Court ruling in State v. Jones, (25 June 2004) (No. 591PA03), possession of cocaine is classified as a felony for all purposes. It is therefore proper for such a conviction to be used to support a finding of habitual felon status.
Assignments of error number one through ten, fifteen and sixteen were not argued in respondent's brief and are therefore deemed waived under the North Carolina Rules of Appellate Procedure, Rule 28(a).
No error.
Judges TIMMONS-GOODSON and HUDSON concur.
Report per Rule 30(e).